A number of commentators have challenged my claim that Articles 11(2) and 12(3) of the Rome Statute would permit Palestine to accept the ICC’s jurisdiction retroactively, whether as a member-state or on an ad hoc basis. Here, for example, is what my friend Jennifer Trahan wrote yesterday at IntLawGrrls:

Even if an entity becomes a “state,” should there be jurisdiction that it can invoke back to a time when (a) there were no clear “nationals” of that state, and (b) there was no clear “territory” of that state, and in fact, even according to the General Assembly there was only an “observer” and not a “state”? (The ICC Office of the Prosecutor has already declined to exercise jurisdiction over this time-period once before.)

Let’s not get carried away here.

I realize that I should have been more precise in my previous post. I was trying to make a more modest point: namely, that the Rome Statute does, in fact, permit retroactive acceptance of the Court’s jurisdiction. I did not mean to imply that Palestine itself could necessarily accept jurisdiction over acts committed on its territory before it became a state. Mea culpa.

That said, I think Jennifer makes an equally problematic assumption: that Palestine only became a state on Thursday, as a result of the UNGA vote. As Bill Schabas reminds us, membership in the UN may be relevant to whether an entity qualifies as a state, but it is not dispositive…

I haven’t blogged about Chevron lately, because there has not been much news to report. But I want to mention an excellent article discussing plaintiffs’ efforts to force Chevron to pay at least part of the judgment. The article is written by a financial analyst associated with the investment website Seeking Alpha, so it has no particular ideological axe to grind. Indeed, it strikes me as remarkably fair. Interested readers should check it out.

Happy Thanksgiving, the best of the American holidays … I’m taking a quick break from cooking to note this Washington Post story on water rights.  Water rights are a fairly obscure topic to most lawyers, unless one is in a place like the southwestern United States or northwestern Mexico, in which case water rights are a kind of underlying regulatory structure of many other things, such as patterns of agriculture, urban and suburban development, etc.

I sometimes forget how important these issues become when rivers cross national borders, and where actions, such as dams or other diversions, by the upstream country can have enormous effects on the downstream country.  A senior Egyptian official once told me in passing (years ago) that if there were ever a Sudan that decided to divert significant parts of the Nile, Egypt would regard it as a casus belli if negotiations did not fix it – I asked on what legal theory, and he shrugged.  Water rights tend to structure things at the infrastructure and development level – oftentimes large numbers of people’s expectations for the long term are set around long run expectations about water supply, so that disruptions across borders might not occasion merely a marginal change of degree in behavior, but trigger institutional crises.  People’s livelihood are often at stake, but sometimes, not just livelihoods but a way of life for a region.

So I was interested to see that the United States and Mexico, which unsurprisingly have had serious disagreements over water rights in the past, have signed a new five year pact of amendments to the 1940s era Colorado River pact.  The amendments essentially bring Mexico into an arrangement created by US states sharing Colorado River water, to address times of drought.  The essence of the pact, as with the inter-US-state agreement, is to allow a party to “bank” water during wetter periods in reservoirs upstream, and then draw on that water in times of drought.

Whether this will work as planned, or whether it will address the generally drier conditions of the region or greater total demands for water in the region, I don’t know.  I did a quick check of Mexican press online, and there seemed to be a cautious endorsement, but I’d be interested to know how those more familiar with Mexico’s internal policy think of it; I’m definitely no expert on water rights, let alone cross-border water rights between Mexico and the US.  But I thought it was an interesting instance of international agreements over water rights.  Here is how the WaPo (AP) story describes it:

The far-reaching agreement gives Mexico badly needed water storage capacity in Lake Mead, which stretches across Nevada and Arizona. Mexico will forfeit some of its share of the river during shortages, bringing itself in line with western U.S. states that already have agreed how much they will surrender when waters recede. Mexico also will capture some surpluses when waters rise. Also under the plan, water agencies in California, Arizona and Nevada will buy water from Mexico, which will use some of the money to upgrade its canals and other infrastructure.

The agreement, coming in the final days of the administration of Mexican President Felipe Calderon, is a major amendment to a 1944 treaty considered sacred by many south of the border. The treaty grants Mexico 1.5 million acre-feet of river water each year — enough to supply about 3 million homes — making it the lifeblood of Tijuana and other cities in northwest Mexico. The pact represents a major departure from years of hard feelings in Mexico about how the U.S. manages the 1,450-mile river, which runs from the Rocky Mountains to Mexico. In 2001, U.S. states established rules on how to divide surpluses but set aside nothing for Mexico. Several years later, the U.S. government lined a border canal in California with concrete to prevent water from seeping through the dirt into Mexican farms.

“We have chosen collaboration over conflict, we have chosen cooperation and consensus over discord,” said U.S. Interior Secretary Ken Salazar, who called the new pact the most important international accord on the Colorado River since the 1944 treaty. Mexico will begin to surrender some of its Colorado River allotment when Lake Mead drops to 1,075 feet above sea level and begin to reap surpluses when it rises to 1,145 feet. Mexico will be allowed to store up to 250,000 acre-feet of water in the reservoir and draw on nearly all of those reserves whenever needed. The agreement expires in five years and is being billed as a trial run, potentially making it more palatable in Mexico.

Argentina is, to put it bluntly, one of the world’s greatest sovereign deadbeats, defaulting on its sovereign bonds more than once as well as bearing the distinction of being the world’s number one respondent in ICSID arbitration claims (or at least close to number one).  Last week, the ongoing struggle between foreign creditors and Argentina found a new flashpoint as investors brought an action in Ghana to attach ARA Libertad, an Argentina government naval training ship that was on a goodwill tour of West Africa.

Argentina had defaulted on its sovereign bonds in 2002 and various investors who did not accept Argentina’s settlement of those debts (which involved a 70% “haircut”)  have been seeking to collect on those debts ever since, especially in litigation occurring in the U.S. and the U.K.  So far, however, investors have failed to collect much money, even though a U.S. court has granted summary judgment holding Argentina liable for more than $280 million (with lots of interest accruing).

The Ghana litigation is the latest round in this ongoing struggle to collect on this judgment. The commercial court in Accra has refused Argentina’s effort to lift an injunction preventing ARA Libertad from leaving Ghana, holding that Argentina’s bonds waived applicable sovereign immunity defenses. Indeed, most courts seem to have agreed that  Argentina has indeed waived its immunity defenses. Here is an excerpt of their waiver, as described in a recent U.S. Court of Appeals for the Second Circuit decision: (E.M. Ltd. V. Republic of Argentina (2d Cir. Aug. 20, 2012)

To the extent the Republic [of Argentina] or any of its revenues, assets or properties shall be entitled … to any immunity from suit, … from attachment prior to judgment, … from execution of a judgment or from any other legal or judicial process or remedy, … the Republic has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction…

Of course, this waiver does not necessarily mean that all of Argentina’s assets can be seized or attached.  In U.S. litigation, courts have held that this waiver allows U.S. courts to attach Argentina state assets that are used for a commercial activity.  (NML Capital v. Argentina, 680 F.3d 254 (2d Cir. 2012)).  If such an approach is followed in Ghana, I am not sure whether the foreign investors would be able to prevail since they would have to prove that the ARA Libertad is being used for a commercial as opposed to a naval activity.

On the other hand, Ghana law could very well be more favorable to the creditors than U.S. law.  It certainly sounds like that is the case given this report of the arguments in the Ghana court. Perhaps sensing it has a losing legal argument, Argentina has begun a full-court diplomatic press on Ghana, even enlisting Chile to help out.

If Ghanian law allows a waiver of attachment to extend to all sovereign property, then it seems only fair that this case should be allowed to proceed regardless of what Argentine or Chilean diplomats say. I realize that the foreign creditors here are “vulture” investors who purchased the bonds from the original bondholders at a steep discount, but I don’t think that excuses Argentina from its undoubted legal liability.  Even if the ARA Libertad is not properly the subject of attachment, I can’t understand why folks continue to excuse Argentina’s deadbeat behavior.  Argentina plainly has the money to pay the judgment (the just expropriated their largest oil company, after all), and it is obligated to do so as a result of its own commitments. So why cry for Argentina?

Mark Kersten has the scoop at Justice in Conflict:

So why, then, did Mauritania do it or, perhaps more accurately, how did Libya convince Mauritania to change its tune?

Having reached out to various contacts to see whether anyone knew what had changed Mauritania’s mind, a number of individuals quickly responded that there was only one possible motivation: money. While certainly not far-fetched, I thought there must be something else to the story – economic cooperation, perhaps some oil concessions, or the development of stronger geopolitical ties. Turns out I was wrong and it had everything to do with money.

According to numerous sources, including Der Spiegel and the Libyan Herald, Libya paid 200 million US dollars in order to guarantee Senussi’s transfer. While some Libyan officials have denied that there was any direct transfer of cash, rumours persist that the money was transfered to Mauritania via an off-shore account.

Importantly, the buying the custody of a former Gaddafi regime official would be in line with recent practice. The extradition of former Libyan Prime Minister, Baghdadi Al-Mahmoudi, in June was guaranteed by a payment of “a sum of $100m and another $100m as an interest-free loan” to Tunisia. Interestingly, Libya’s Finance Minister, Hassan Zaglam, was on the plane that brought Senussi back to Libya. This fact has only fueled speculation that Libya paid Mauritania off. After all, it is certainly uncommon for Finance Ministers to be involved in extradition negotiations.

Great work by Mark.  What a bizarre and wasteful move by the Libyan government — as Mark notes, $200m is more than the ICC’s entire yearly operating budget.

Fresh off the failure of the Arms Trade Treaty — aka The UN’s Secret Plan to Disarm the Defenders of Freedom and Enslave Mankind — Google has released an amazing new tool that maps global flows of light weapons and ammunition.  Here is how the Huffington Post describes the tool:

The Peace Research Institute Oslo (PRIO), a Norwegian initiative focused on the dealing of small arms, provided information for the undertaking, including “[m]ore than 1 million data points on imports and exports [...] across 250 states and territories,” according to a post on the Google Blog. The project was developed by Google’s Creative Lab and the Brazil-based Igarape Institute.

The tool allows the user to search by country and view where imports come from and where exports go each year; it also shows how much each country spends and receives as a result of this trade. Civilian and military purchases are displayed as well. (Note: The Google Blog defines “light weapons” as revolvers, assault rifles and light machine guns. The blog also states that “three quarters of the world’s small arms lie in the hand of civilians — more than 650 million civilian arms.”)

I really want to hate Google for its cavalier attitude toward privacy.  Projects like this one don’t make it any easier.

It’s been a slow blogging week, so I think I can get away with a completely self-serving post about the awesomeness of Melbourne.  And yes, Melbourne is awesome.  The Economist Intelligence Unit’s Global Livability Survey says so — again:

1. Melbourne
2. Vienna
3. Vancouver
4. Toronto
5. Calgary
5. Adelaide
7. Sydney
8. Helsinki
9. Perth
10. Auckland

The survey assesses 140 cities on factors in five categories: stability, healthcare, culture and environment, education and infrastructure.  Melbourne received a perfect score on infrastructure, healthcare and education.

Perhaps this is a good time to mention that my law school is currently advertising two entry-level positions, though at least one of the people we hire will need to teach business law.  Applications close in a week — August 22nd.

Although clearly a step up from its genocidal predecessor, Kagame’s government in Rwanda is anything but progressive. According to the State Department, the government is responsible for — inter alia — illegal detention, torture, enforced disappearance, attempted assassinations of political opponents, restrictions on the freedom of speech and press, violence toward journalists and human rights advocates, discrimination against women/children/gays and lesbians, trafficking in persons, restrictions on labor rights, and use of child labor.  The West has nevertheless generally preferred to ignore Kagame’s horrible human rights record, focusing instead on Rwanda’s supposed “economic miracle” since he took power (which, not coincidentally, has involved unprecedented friendliness toward Western multinationals.)

That said, I think the honeymoon is finally over.  As the Guardian reports, Kagame’s longstanding — and remarkably flagrant — support for Bosco Ntaganda’s M23 rebel group in the Congo seems to have caught up with him…

As part of my research on international corruption in a forthcoming article in the Ohio State Law Journal, I came across some interesting studies on the relationship between corruption and democracies. One would think that democratic regimes are less corrupt than autocratic regimes because in democracies public officials are subject to political accountability. But the evidence suggests otherwise. Empirical research confirms that the relationship between corruption and democracy is nonlinear. Only countries that are fully institutionalized democracies consistently rank well on Transparency International’s Corruption Perception Index scores. There is no measurable improvement in corruption rankings between mixed political regimes and partial democracies. Moreover, in many cases institutionalized autocracies have better corruption scores than partial democracies.

As one study noted, “corruption is likely to be slightly lower in dictatorships than in countries that have partially democratized. But with more complete democratization … countries experience much lower levels of corruption.”

Another study found that “[h]ow well any government functions simply hinges on how good citizens are at making their politicians accountable for their actions…. [I]t is only when citizens effectively discipline policymakers to serve them that public goods are delivered in an efficient manner and corruption is curtailed.” This requires not simply free and fair elections, but also informed citizens capable of curbing corruption.

Of course, fully-fledged democracies do not spring forth overnight. Studies indicate that a “long period of period of exposure to democracy lowers corruption.” It is common for countries in transition toward democracy to experience a growing problem with corruption. But in the battle against corruption, patience is a virtue. As one study put it, the “[g]reatest rewards (in the form of a clean and transparent state) [a]re granted to countries that [a]re able not only to realize but also to maintain the strongest and healthiest democratic institutions.”

In short, lukewarm democracies are not effective at combating corruption, and often do a worse job at it than tin-pot dictators. Only when democracy has fully flowered is there a strong positive correlation between a democratic form of government and low-levels of perceived corruption. The good news is that fully-fledged, well-established democracies are the cleanest governments on earth.

Courtesy of the European Trade Union Institute.  I have no significant commentary to add, other than to say that I’m glad I live outside of the U.S.  Here is the chart:

Hat-tip: The Atlantic.

At one time in the mid-1990s, it seemed like a week couldn’t go by without some large gathering of States seeking to hammer out the terms of a new multilateral treaty with aspirations for universal membership.  Such treaty negotiations have become a rarer phenomenon today with most meetings now emphasizing implementation of, and compliance with, existing treaties.  And where new norms are called for, treaties are no longer the default vehicle — many States now favor using political commitments (e.g., the Copenhagen Accord) as an alternative to the more traditional treaty form.

Still, from time to time, treaty negotiations and all the diplomatic machinations accompanying them return to center stage. July appears to be one of those times.  Starting today and running through July 27, the UN is launching a new treaty negotiation in New York for an Arms Trade Treaty.  The UN General Assembly first proposed such a treaty in December 2006 in its Resolution 61/89.  You can review a summary of the work of the preparatory committee since then here, including the Chair’s 2011 non-paper that outlines what an Arms Trade Treaty might look like.  A compilation of State reactions to the Chair’s non-paper is also available.

The pitch for an arms trade treaty is a simple one — there are treaties regulating almost every other good as it is traded across borders; as one pro-treaty NGO representative put it, “It is an absurd and deadly reality that there are currently global rules governing the trade of fruit and dinosaur bones, but not ones for the trade of guns and tanks”.  The argument goes on to suggest that this absence of regulations means that weapons can be traded to and misused by government forces or end up in the wrong hands of criminals, pirates, terrorists, etc., who then perpetuate death and destruction.

On the other hand, there are significant obstacles that may limit or obstruct any arms trade treaty. For starters, under the current rules of procedure, the treaty’s adoption will require consensus, meaning one State (think the US or Russia) could block it (it is possible though that a text supported by a sufficient number of States might be put before the UN General Assembly itself, which requires only a super-majority vote).  Second, as the UN’s Register of Global Reported Arms Trade indicates, there’s a lot of arms traffic (and thus money) at stake.  Thus, there is a wide array of stakeholders out there whose interests may not coincide with the sort of trade regulation that NGOs like Amnesty International envision.  Third, there’s a looming fight over whether to include ammunition within the treaty, which will obviously have a fairly significant impact on the proposed treaty’s scope.  And to the extent the treaty tries to regulate trade with specific actors (e.g., terrorists), there will undoubtedly be definitional and labeling issues that may make the treaty difficult to implement (for example, there is still no UN-accepted definition for terrorism).

As for the United States, the Obama Administration shifted course in 2009 and agreed not to oppose the current negotiations (which the Bush Administration had opposed in favor of better national controls).  Still, the US faces a few daunting issues in any arms trade treaty, most obviously, that any focus on arms, even one limited to regulating trade in arms, engenders 2nd Amendment concerns and domestic opposition from those who resist federal laws or regulations relating to guns (and this will be true I suspect even if the Obama Administration negotiates a text that it believes steers clear of any U.S. Second Amendment jurisprudence).  There’s also a question of continued US trade in arms to Taiwan and how the treaty would address whose law regulates the importation of weapons into Taiwan (with the possibility that the government of the People’s Republic of China might use any treaty to advance its position on Taiwan’s status).

In other words, there’s a lot on the table in New York this month.  And I’m sure this post has only scratched the surface.  So, I’d welcome reader input on other issues or views about the negotiations’ chances for success (or failure).  I’d also welcome any pointers to a daily digest of the negotiation’s progress along the lines of the invaluable IISD reporting service that serves such a wonderful updating and reporting role in the international environmental context.  I expect I’m not the only one interested in seeing how things progress.

I have often chided David Bernstein for his misrepresentation of the work done by Human Rights Watch and Amnesty International, so it is only fair to call out progressives when they, too, distort that work.  Political Animal, which is associated with the Washington Monthly, is one of my favorite progressive blogs.  But a recent post by Kathleen Geier that claims HRW and Amnesty ignore labor rights is painfully inaccurate:

I have long wondered why the major human rights groups like Amnesty International and Human Rights Watch have never seemed to pay the slightest attention to labor rights, even though, to their credit, over the years these organizations have expanded their scope to include nontraditional human rights areas like women’s rights, disability rights, GLBTQ rights, and the like. How did that come to be, I wondered?

Well, I don’t have to wonder any more, after having read Mark Ames’ amazing blog post on exiled.com (H/T: Corey Robin).

Ames definitely has the goods. No, it’s not our imagination, the human rights groups could not have more contempt for the concept of labor rights if they tried:

Go to Amnesty International’s home page at www.amnesty.org. On the right side, under “Human Rights Information” you’ll see a pull-down menu: “by topic.” Does labor count as a “Human Rights topic” in Amnesty’s world? I counted 27 “topics” listed by Amnesty International, including “Abolish the death penalty”, “Indigenous Peoples”, “ “Children and Human Rights” and so on. Nowhere do they have “labor unions” despite the brutal, violent experience of labor unions both here and around the world. It’s not that Amnesty’s range isn’t broad: For example, among the 27 topics there are “Women’s rights”, “Stop Violence Against Women” and “Sexual Orientation and Gender Identity”. There’s even a topic for “Business and Human Rights”—but nothing for labor.

Geier goes on to say that Human Rights Watch is no better — a claim that Mark Ames explains as follows:

Checking Human Rights Watch’s homepage (www.hrw.org), there’s a tab listing “topics”—14 topics in all. Once again, labor is not listed among Human Rights Watch’s covered “topics.” Instead, Human Rights Watch lists everything from “Children’s Rights” to “Disability Rights” to “LGBT Rights” and “Women’s Rights”—along with “Terrorism”, “Counterterrorism” and, I shit you not, “Business”—as vital human rights topics. But not labor. “Business”—but not “Labor.”

Seriously, critics of HRW and Amnesty need to learn how to use the internet.  If you go to Human Rights Watch’s “topics” page — instead of the abbreviated “topics” tab — you will find numerous topics that are directly relevant to labor rights: “Extractive Industries,” “Corporations,” “World Bank/IMF,” “Child Labor,” “Economic, Social, and Cultural Rights,” “Migrants,” “Workers, Forced Labor, and Trafficking” (!), and “Domestic Workers.”  Each topic contains multiple HRW reports and press releases concerning labor rights; the current topics page, for example, includes entries such as Kazakhstan: Ensure Fair Trial for Oil Workers, Others; Labor Department Abandons Child Farmworkers; Uruguay: First to Ratify Domestic Workers Convention; Singapore: Domestic Workers to Get Weekly Day of Rest; Qatar: Migrant Construction Workers Face Abuse; The Invisibility of Domestic Workers; and Asia/Middle East: Increase Protections for Migrant Workers.  And, of course, the “Business” topic — which Ames ridiculously implies is concerned with the rights of businesses — includes numerous labor-rights oriented entries, such as India: Mining Industry Out of Control.

Ames and Geier also significantly misrepresent Amnesty’s work..