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The Narrow Case for the Legality of Strikes in Syria and Russia’s Illegitimate Veto

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

On April 13, the US, UK and France launched a barrage of missiles at three chemical weapons-related sites in Syria, in response to the most recent attack in Douma, part of a long series of chemical weapons attacks, attributed to the regime.

The UK has set forth its legal position on the strikes, justifying them as “humanitarian intervention,” while France and the US asserted the legality of their action without articulating a legal theory (nor did the US articulate any legal theory for its similar 2017 strike). There is of course no justification for three permanent members of the Security Council to use force at will, so there needs to be a basis under international law. The UN Charter only clearly permits use of force under two exceptions: (1) UN Security Council Chapter VII authorization, and (2) the right to self-defense under UN Charter article 51. A third scenario where force is also permissible is consent of the host country. None of these three scenarios appears applicable in the current instance.

While some have already blogged that there was no legal basis for the recent military strike in response to the Assad regime’s latest use of chemical weapons (including Kevin Jon Heller on Opinio Juris), there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice. And the recent use of force has received support, again not only by the “West,” but by the Gulf Cooperation Council, to name an example. Though this support was not based on a legal theory, it is nonetheless significant.

On the question of legality, there appears a split between those states and scholars who take the view that humanitarian intervention is (1) under a strict reading of the Charter, never legal, (2) fully legal, or (3) in line with practice and an updated reading of the Charter sufficient that it falls into at least a “grey area” of legality. (See my article substantiating this third position.)

Why do we have this split in views on humanitarian intervention? It goes back (at least) to Kofi Annan in 1999 asking the very important question: “if in those dark days and hours leading up to the [1994] genocide [in Rwanda], a coalition of states had been prepared to act, in defense of the Tutsi population but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?” While early formulations of the doctrine of the “responsibility to protect” (R2P) were quite encouraging, later formulations appear to answer the question by emphasizing both the duty to act in the face of atrocity crimes, but the need for Security Council approval for forceful intervention. To this author, R2P then gives a disappointing answer to Kofi Annan’s question of what to do in the event of Security Council paralysis, by responding that one waits for the Security Council to act. In the face of mass atrocity crimes, this is cold comfort to the victims.

A large number of states have now come forward over the last decade and a half to ask the permanent members to pledge themselves to veto restraint in the face of atrocity crimes (genocide, crimes against humanity and war crimes). Important initiatives in this respect include the ACT Code of Conduct, and the French/Mexican initiative. It is however concerning that only two permanent members of the Council, the UK and France, have taken this pledge. One might well ask: if the US cared enough about the Syrian victims and Assad regime’s chemical weapons use to engage in a military strike, then perhaps it could also take this simple pledge not to use its veto in the face of atrocity crimes?

Aside from legal questions as to the strike and whether or not it met appropriate criteria of legitimacy (as well as why the US is not doing more to solve the Syrian crisis or admit Syrian refugees as Harold H. Koh well asks), let us recognize that we are in a place we should never have reached. First, the Assad regime should never have been using chemical weapons against its own people in violation of multiple treaties banning them (nor committing countless other atrocity crimes that don’t always draw an equal share of the headlines). Second, Russia, sometimes joined by China, should never have been using its veto to block investigations as to chemical weapons use, to condemn their use (and other indiscriminate weapons use) or referral of the situation for prosecution, in the face of widely acknowledged crimes against humanity and war crimes. (Allowing investigations or prosecution, or issuing condemnation, does not directly halt the commission of atrocity crimes, but at least it communicates: “the world is watching and accountability is coming,” when the veto in such circumstances conveys exactly the opposite.)

When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force. It had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes. It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted, and in a way that is at odds with other bodies of international law (such as the highest level jus cogens norms) and the “purposes and principles” of the UN Charter, with which the Security Council (including its permanent members), are bound, under article 24.2 of the Charter, to act in accordance.

Whether the Security Council is to be seen in the future as an effective and credible institution will depend in part on whether it can reign in its own permanent members’ behavior when they utilize the veto, or threat of veto, in the face of mass atrocity crimes. Those permanent members engaging in such actions appear to fail to recognize that, in addition to being complicit in facilitating the commission of atrocity crimes, they are undermining the Council itself. This behavior then force the US, UK and France into taking action that is worrying to many other states for its potential of pretextual or abusive invocations. The argument of abuse is not ultimately, however, fully convincing: does anybody argue we should do away with the right of self-defence because it is sometimes abused, for instance, by Turkey in Syria? But of course unilateral humanitarian intervention should, ideally, never prove necessary. And if would not if we didn’t have illegal vetoes.

The ICC’s Curious Dissolution of the Afghanistan Pre-Trial Chamber

by Kevin Jon Heller

Many ICC observers have been wondering why the Pre-Trial Chamber is taking so long to decide on the OTP’s request to open a formal investigation into the situation in Afghanistan. A little-noticed document filed by the Presidency on March 16 provides at least part of the explanation: because of  the recent judicial elections, the Presidency has dissolved the PTC that was handling the Afghanistan situation (PTC III) and reassigned the situation to a newly-constituted PTC (PTC II). Here is the relevant paragraph of the document:

HEREBY FURTHER DECIDES to reassign the situation in the Republic of Côte d’Ivoire from Pre-Trial Chamber I to Pre-Trial Chamber II, to re-assign the situation in the Gabonese Republic from Pre-Trial Chamber II to Pre-Trial Chamber I and to re-assign the situations in the Islamic Republic of Afghanistan and the Republic of Burundi from Pre-Trial Chamber III to Pre-Trial Chamber II.

The Presiding Judge of PTC III, Judge Mindua, has been reassigned to PTC II, so he will continue to deal with the Afghanistan situation. But the other two judges assigned to the new PTC II, Judge Akane and Judge Aitala, have just been elected to the Court. So PTC II now has to essentially start over with regard to the OTP’s request to open a formal investigation. Here is Kate Clark on behalf of the Afghanistan Analysts Network (AAN):

The Court had to re-assign the decision on Afghanistan to a new panel of judges (see details here). The new panel has had to start from scratch, wading through and considering all the material gathered on Afghanistan over the last decade. An ICC press release warned “it cannot be determined at present how many more weeks/months this process will take.”

I cannot find the quoted press release on the ICC’s website, but it makes sense that the Presidency’s assignment of two newly-elected judges to PTC II will slow down the Chamber’s analysis of the OTP’s request.

A question, however, still nags at me: given the importance of the Afghanistan decision — arguably one of the most momentous in the ICC’s history — and the fact that PTC III has been (actively) dealing with the OTP’s investigation request for nearly four months, why would the Presidency dissolve PTC III now? If the terms of the other two judges had expired, the decision would be understandable: even if the Presidency had assigned two experienced judges to the newly-constituted PTC II, those judges would have needed some time to familiarise themselves with the Afghanistan situation. But that is not what happened here: the Presidency simply reassigned the other PTC III judges — Judge Chung and Judge Pangalangan — to the Trial Division. That is not only problematic in terms of the resulting delay, it also means (pursuant to Art. 39(4) of the Rome Statute) that neither Judge Chung nor Judge Pangalangan will be able to hear any case that comes out of the Afghanistan investigation.

Would it not have been better to leave PTC III alone until it made a decision on the OTP’s request to investigate? I don’t see anything in the Rome Statute that required the Presidency to reassign Judge Chung and Judge Pangalangan. Judges assigned to the Pre-Trial Division normally serve for three years. Judge Pangalangan has three months left in his tenure (he was assigned to the Division on 15 July 2015), and although Judge Chung’s three years ended on March 11 (he joined the Division on that date in 2015), Art. 39(3) provides that judges who have served three years shall continue to serve “thereafter until the completion of any case the hearing of which has already commenced in the division concerned.” The language of Art. 39(3) is typically ambiguous regarding the situation/case distinction, but it’s at least arguable that the provision applies to a pending PTC decision concerning an investigation request. So, again, it does not appear that the Presidency had to reassign Judge Chung and Judge Pangalangan.

Let me be clear: I am not imputing any nefarious motives to the Presidency. I don’t believe the dissolution of PTC III was some kind of backhanded ploy to prevent the OTP from investigating the Afghanistan situation. The new PTC II will eventually authorise the investigation — the personnel changes are just delaying the inevitable. Moreover, it may well be the case that, logistically, reassigning Judge Chung and Judge Pangalangan could not be avoided. I have not systematically analysed the workload of the old judges or the qualifications of the new ones.

Once again, though, the Court’s lack of transparency does it no favours. Given the impact of the Presidency’s decision on the closely-followed Afghanistan situation, it is not enough for it to mechanically recite the various considerations in the Rome Statute concerning the assignment of judges. If only to avoid the kind of conspiracy theories that I personally reject, the Presidency needs to explain precisely why PTC III could not remain intact until it reached a decision on the OTP’s request to open an investigation.

EU Court Condemns the EU Legislative Process for Lack of Transparency: Time to Open Up?

by Massimo Frigo

[Massimo Frigo is a Senior Legal Adviser of the International Commission of Jurist’s Europe Programme.]

It is sometimes cases on obscure administrative processes that become landmark judgments in the ever constant building of our democratic legal systems. In the US Marbury v. Madison was a case that at the time attracted little attention as the subject matter related to respect of procedures in judicial appointments. This notwithstanding it came to be the legal milestone of constitutional review in the US legal system.

In the European Union one of these cases was decided on 22 March: Emilio De Capitani v. Parliament. As it will be outlined below, it is a technical case that goes to the heart of the procedure of one of the fundamental institutions in a democracy: Parliament.

  1. The EU legislative decision-making process

Unlike the United States, the European Union is not a State. However, it retains more and more competence to legislate in areas of everyday life and of crucial constitutional State prerogatives, including in the sphere of justice and home affairs that includes immigration, asylum, border control, and police cooperation.

The legislative process of the EU may be generally simplified in this way: the European Commission, i.e. a body of supposedly independent experts appointed by the European Council (see, the 28, soon 27, heads of State or government of its Member States) and approved by the European Parliament (the only institutions directly elected by EU citizens), has the initiative to table legislation.

Once the proposal is tabled it is the turn of the co-legislators to discuss it, amend it, approve it or reject it. At any moment the European Commission can withdraw the proposal and put an end to the process.

The EU legislators are the European Parliament and the Council of the European Union. The latter consists of the Governments, often in the configuration of the ministries relevant to the legislative piece to be discussed, of the EU Member States. These two bodies must agree on the legislative text, and its potential modifications, and approve it in the same form before it can become law. They can do it in one or two reading sessions.

In the last decades, since this procedure (once called “co-decision” and now “ordinary legislative procedure”) came to exist, a practical solution to speed up the legislative procedure was found by holding what are called “trilogues”. These are closed meeting among representatives of the Council of the EU, the European Parliament and the European Commission to find a compromise and produce an agreed text that will have to be voted by their respective committees and plenaries into law.

The practice of these trilogues is that no one has access to them nor to any document on the suggestions of compromise. Furthermore, when an agreement is reached, statistically, both the Parliament and the Council approve the compromise into law. It is therefore a key moment in the legislative process. And it is absolutely foreclosed to EU citizens and civil society.

  1. The case

Mr De Capitani brought a challenge to the General Court of the European Union, the judicial body competent for cases against EU institution at first instance, because Parliament, after having consulted the Council and the Commission, refused him access to the part of a document in the legislative process. Specifically this part of the document is the fourth column in a tabled document that reports the compromises reached or suggested during the trilogues, while the first three of them include the original proposal and the positions of the institutions.

  1. The judgment

The General Court ruled that, “contrary to what the Council maintains …, … the trilogue tables form part of the legislative process.” (para 75, , De Capitani)

It pointed out that

78. … it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole … .

The Court dismissed the EU institutions’ exception that non-disclosure was necessary because the document dealt with a draft law in the area of police cooperation. The Court very strongly ruled that

89… the fact … that the documents at issue relate to the area of police cooperation cannot per se suffice in demonstrating the special sensitivity of the documents. To hold otherwise would mean exempting a whole field of EU law from the transparency requirements of legislative action in that field.

Furthermore the Court stressed that

90…. the documents at issue concern a proposal for a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, which naturally concerns citizens, all the more so since at issue here is a legislative proposal directly affecting the rights of EU citizens, inter alia their right to personal data protection …, from which it follows that the legislative proposal could not be regarded as sensitive by reference to any criterion whatsoever … .

The Court then dealt with the assertion that access to these documents could increase public pressure on the representatives of the EU institutions involved in the trilogue procedure:

98… in a system based on the principle of democratic legitimacy, co-legislators must be held accountable for their actions to the public. If citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information … Thus, the expression of public opinion in relation to a particular provisional legislative proposal or agreement agreed in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights, particularly since … such agreements are generally subsequently adopted without substantial amendment by the co-legislators.

Finally, while allowing still the possibility for certain situations (“duly justified cases”) of non-disclosure for co-legislators, including Parliament (para 112, De Capitani), the Court closed by rejecting also the argument raised by Parliament that making public documents of the trilogue would have taken away the nature of these meetings as a “space to think” . The Court unmistakably reminded Parliament that these meetings are essential parts of the legislative procedure and not “spaces to think” and as such must be subject to the required level of publicity (para 105, De Capitani).

  1. Conclusion: a more democratic EU?

The European Union does not enjoy today the best image in terms of transparency, accountability and democratic processes. Its institutions have been openly attacked from many different quarters for their lack of transparency and the bureaucratic nature of their procedures. Most of these attacks are populist fear-mongering that simply aims at finding a scapegoat to gain political traction, votes and, hence, power. However, as we have seen, some critiques of the EU structure cannot be simply dismissed as political nonsense and one of them is about the legislative process in the EU that affects the lives of almost 500 million people.

The De Capitani ruling throws a breath of fresh air to these institutions and, importantly, demonstrates that, while some institutions of the EU may be criticised for lack of transparency and obedience to the rule of law, there are institutions, notably the EU courts, that can address the problem within.

This ruling can still be subject to appeal before the Court of Justice of the EU. In the meantime and this notwithstanding, the crucial question is whether and how the ruling will be implemented. Will the Parliament, the Council, i.e. the Governments of the Member States, and the Commission open up to democratic scrutiny in legislative process?

The answer to this question will be vital for the EU to withstand any criticism that it does not obey the rule of law and democratic accountability. This is why this case is a turning point for the EU rule of law structure. Much of the legitimacy of the EU as a rule of law based supra-national organisation lies in what its institutions are going to do next. And we’d better be watching…

The Latest on Our Global War

by Deborah Pearlstein

The Trump Administration last week released its first “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.” The report continues a practice initiated at the end of the Obama Administration and subsequently codified into requirement by Congress by which the Administration makes clear (among other things) where and under what legal authorities the United States is using military force, and how key domestic and international law rules apply to practices like targeting and detention. The publicly available Trump version of the report is far sparser than the Obama Administration report; this report seems to leave some essential points to the classified annex that accompanies it. Still, it remains highly useful as an official statement of the U.S. basis for using force (including, for example, attacks on Syrian government forces “to counter immediate threats” to partner forces of the United States there). A summary of the report’s contents is here.

There are several items of note in the report, not least of which is a troubling return to the bad old days in which the United States declines publicly to name which terrorist groups we consider ourselves at war with – identifying them here only in the classified appendix. (The full text of the report regarding the scope of the 2001 AUMF is as follows: “The classified annex contains more information on the application of the Authorization for Use of Military Force (2001 AUMF) to particular groups and individuals.”)

It is, however, among the report’s least surprising positions that should be seen as most significant: like its past two predecessors, the Trump Administration has embraced the notion that the United States is engaged in a singular, global non-international armed conflict against a shifting set of terrorist groups. This idea – which, after 17 years of U.S. efforts, has yet to be embraced by any other country in the world – continues to have a profound, and in many ways, warping effect on the law of armed conflict a/k/a international humanitarian law (IHL). Among many such effects: a growing group of legal scholars today urge that we reconsider the utility of the distinction (at the heart of IHL) between violence that counts as an “armed conflict” and violence that doesn’t. Critics raise a range of concerns, with the U.S. post-9/11 conflicts typically Exhibit A: the line dividing “armed conflict” and not is no longer clear or stable enough to provide meaningful guidance; current definitions may compromise humanitarian interests, prospects for criminal justice or both; perhaps most important, the “armed conflict” classification no longer reflects current moral, political, or strategic sensibilities about the role of lethal force in an age in which global threats have changed. I critiqued some of these claims to an extent in a review of Rosa Brooks’ book, How Everything Became War and the Military Became Everything: Tales from the Pentagon, out in AJIL late last year. I take them on in far greater detail in a new piece here (forthcoming Va. J. Int’l L. 2018). Among other things, I argue, it is not at all apparent that changing the terms on which we permit the use of lethal force will achieve the goals IHL’s current critics seem to seek.

But the Trump report – which, with little fanfare and in an otherwise rapidly changing world, embraces the legal construct that has framed and in many respects guided U.S. military operations for the better part of 20 years – underscores what should be an even more pressing concern. As the list of countries in which the U.S. is engaged in hostilities grows (Niger has joined the list since last report), and the purpose of U.S. intervention in some of these places blurs (the report reminds us that while ISIS has lost 98% of the territory it once held in Iraq and Syria, and will soon have lost 100%, we’re planning to keep bombing in Syria after that nonetheless), we’ve increasingly replaced a difficult conversation about the adequacy of international security policy with an easier (if ultimately misguided) debate about the adequacy of international security law. The problems to which “armed conflict” classification critics rightly attend – problems of interpretive uncertainty, law compliance, and social change – are familiar dilemmas in all legal systems. The problem of fighting a set of enemies we’re not willing publicly to name – that’s new.

Symposium: Wrestling with the Long Shadow of European Transplants of International Courts in the Third World

by James Gathii

[James Thuo Gathii is the Wing-Tat Lee Chair in International Law and Professor of Law at Loyola University Chicago School of Law.]

Transplanting International Courts is an important book. It invites us to expand and enrich our studies of international courts to those in the developing world. In doing so, Karen Alter and Laurence Helfer directly address what they call the “Europe is unique” thesis. This is the view that it is impossible to have effective international adjudication in “far more diverse and less hospitable environments” than Europe. (page 264) Yet, they do not overstate this point. After all, the Andean Tribunal of Justice has been effective in only one issue area, intellectual property rights. Unlike the bold, purposive and consequential decisions of the European Court of Justice, the decisions of the Andean Tribunal of Justice on intellectual property rights are more restrained, predicated on formalist reasoning and “highly repetitive, even formulaic.” (page 276) In so doing, the Andean Tribunal has avoided direct confrontation between the Tribunal and Andean governments whose political leaders have the last word on Andean law. (page 146)

So striking is the authority of the Andean Tribunal of Justice over intellectual property rights, Alter and Helfer tell us, that it has helped the Andean Community to hold-off American pharmaceutical companies that have sought more extensive intellectual property protections such as data exclusivity, a ban on ‘pipeline’ patents and second—use patents. In so doing, the Andean Tribunal of Justice has played a central role in preventing Andean states from defecting “from regional IP legislation and adopt strong IP protection standards.” (page 19) It has of course been helpful that Andean governments have for the most part had a common interest in a uniform policy for trademarks and patents. Further, Andean rules in these areas, unlike under other integration objectives, are detailed and precise. (pages 139-140). Andean domestic IP agencies and national courts benefitted from the Andean Tribunals rulings, which they accept to improve their decision-making and to insulate them from domestic politics. (page 127).

Alter and Helfer draw two key lessons from the Andean experience. First, that we should not assume that international courts will always seek to expansively construe their ‘authority and influence.’ Second, they argue that by “scrupulously adhering to their delegated powers,” international courts in ‘politically and legally inhospitable environments’ can help them survive long enough to gain constituencies who will make use of them. (page 16)

What then are the implications of these lessons in this rich study of the Andean Tribunal of Justice for the ‘effectiveness of international court more generally’? (page 18) Alter and Helfer argue that the Andean Tribunal’s experience may have more in common with newer international courts than with their European counterparts. (page 47) The Andean experience they argue, shows that “transplanting supranational laws and institutions is insufficient in itself to stimulate local demand for those laws and institutions.” (page 45) This is particularly so in developing country contexts where integration is shaped by significant turmoil in domestic politics.

I want to push the argument that Alter and Helfer make about the Andean Tribunal of Justice having more in common with international courts outside Europe than with those in Europe. In other words, there is an even more radical implication that emerges if Europe is dethroned as the point of reference for non-European international courts. Eurocentric analysis of international courts assumes that non-European international courts are reproductions of European courts with an adjustment here or there to ensure that they are a fit with local conditions. Such a view does not take seriously the agency of non-European actors. It assumes the role of these non-European actors is to simply adapt these European-style courts to their non-European contexts. From this mistaken view, when these non-European courts do not function like their European copies, they are declared failures.

I therefore read Alter and Helfer’s book as an invitation to scholars of non-European international courts not to treat their non-European contexts as merely contexts of reception, but as Diego Lopez Medina persuasively argues as contexts of production. From this perspective, we should not be surprised if what we see in these non-European international courts are, what from a Eurocentric perspective might look like unfaithful copies. Yet, to characterize these non-European courts and their decisions as misinterpretations or mis-readings, is to misunderstand them and their decisions. What seem as mis-readings and misinterpretations from a Eurocentric perspective, are rather the conscious and intentional outcomes of their non-European judges and litigants.

Let me give an example of what a Eurocentric perspective may regard as a misreading or misinterpretation by non-European international courts. This example comes from the East African Court of Justice in a case where the applicants sought to stop the government of Tanzania from building a road across the Serengeti, a UNESCO world heritage site. By way of a very brief background, although the East African Court of Justice was created to decide trade cases, it has redeployed itself to deciding human rights cases even though it does not have a treaty mandate to do so. Thus, when it was invited to decide a question relating to the environment, the government of Tanzania strenuously argued that it should not do so.

Once the First Instance Division decided it had jurisdiction, what it did next was striking. Basing its decision on a treaty provision that serves the equivalent role as the rule of systemic integration under Article 31(3)(c) of the Vienna Convention of the Law of Treaties, the Court concluded that East African Community treaties should not be interpreted in isolation of non-East African Community international environmental treaties. Thus, the Court brought on board the African Convention on Conservation of Nature and Natural Resources, the Rio Declaration, the Stockholm Declaration, and the U.N. Convention on Biodiversity. In so doing, the East African Court of Justice recognized environmental conservation must be seen in the broader economic, social and cultural context captured in this array of additional treaty regimes. This willingness to look beyond one regime is notable considering the sheer difficulty that other international judicial bodies such as those of the World Trade Organization, (WTO), have had in bringing non-WTO treaties as sources of WTO law. In so doing, the East African Court of Justice decided not to construe its jurisdictional remit narrowly as a specialist court within a single self-contained regime.

The Appellate Division of the East African Court of Justice confirmed that it was not improper for the First Instance Division to rely on non-East African Community treaties in its decision. A discussion of this case can quickly veer into considering whether the murky decision of the Appellate Division that did not lift the permanent injunction against Tanzania indicated that the Court feared backlash and non-compliance. That discussion has its utility. However, a choice to foreground a compliance analysis may come at the cost of pursuing the situational and localized circumstances that inform why such cases are brought to these courts in the first place.

For example, the environmentalists who brought the suit objecting to the building of the road through the Serengeti saw the Court as one venue in a multi-dimensional and multi-pronged strategy that involved other venues and pressure points. That multi-pronged strategy that has had its successes and challenges has continued long after the case ended. For these activists, the case was one part of a strategy of galvanizing an international alliance of conservationists to prevail upon the Tanzanian government. My point therefore is that studying non-European courts, and perhaps such courts elsewhere, requires us to put their users and their broader strategies at the center of our analysis.

Foregrounding compliance presupposes litigation is being pursued in these non-European courts because litigants see them as primary change agents. Such an assumption is based on the type of structural reform litigation in North America and Europe. It is not an assumption that those who use international courts in developing countries proceed from. As the Serengeti example noted above shows, whether or not the case is won, it becomes a focal point to galvanize, publicize and mobilize organizational support as well as fund-raising. When a case is lost, litigants use it to appeal to sympathetic individuals and groups by highlighting to the injustices they face. As such these non-European international courts are not independent actors isolated from other sites of political, social and legal contestation.

To conclude, I would emphasize the degree of unfaithful copies of European courts in the non-European world will vary. Further, as a recent study of the preference for non-litigious dispute settlement in the ASEAN investment context has persuasively argued, we should not assume that dispute settlement models that do not fit the European or western experience are flawed or indeed failures, but rather are independent and legitimate forms of legalization.

Alter and Helfer do in fact acknowledge that international courts in developing countries “deploy strategies that diverge from those of European tribunals in response to the distinctive legal and political contexts that these emerging courts face.” (page 274) I have argued that it is misleading to assume that cases filed in international courts in developing countries are primarily and narrowly targeted at legal reform, rather than to satisfy a range of other imperatives that activists are pursing. That is why Alter and Helfer’s conclusion that we “should look for evidence of judicial influence beyond case-specific compliance,” (page 277) is a very welcome one.

Please Take Our Reader Survey!

by Kevin Jon Heller

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Does the ICJ Have Binding Jurisdiction Over the Guyana-Venezuela Border Controversy? Probably, But Maybe Not

by Julian Ku

Last month, the UN Secretary General António Guterres announced that he was referring the longstanding border dispute between Guyana and Venezuela to the International Court of Justice. This decision was made after a long period of mediation by various UN Secretaries-General dating back to 1990.  But as a ICJ jurisdiction nerd, I am curious what the basis of the Secretary-General’s power to refer the dispute to the ICJ is.

It is based on the 1966 Geneva Agreement between the United Kingdom (which was sovereign over Guyana at the time) and Venezuela. That agreement specified a long process of study via a joint commission and then noted that, if agreement on the commission’s report failed, the following process should be undertaken according to Article IV(2):

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

There is no doubt that this provision has been invoked, and the Secretary General’s announcement indicated that he deems “the International Court of Justice as the means to be used for the solution of the controversy.”  Article 33 of the UN Charter does list “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” as options for “pacific settlement of disputes.”  The ICJ would seem to qualify as a “judicial settlement.”

The problem is that it is not clear that Article IV of the Geneva Agreement automatically makes the ICJ’s decision legally binding. Neither Guyana nor Venezuela have accepted the compulsory jurisdiction of the ICJ, so there is no independent basis for jurisdiction.  The Geneva Agreement, I suppose, should be read as delegating to the UN Secretary-General the power to refer their dispute to “judicial settlement.” But it is not clear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.

The most natural reading, I concede, is that Venezuela is indeed bound to abide by any ICJ ruling in this case. But I wouldn’t be surprised if Venezuela tries to contest the jurisdiction of the ICJ, or the binding nature of any decision it issues.

The Parochialism of Western Cosmopolitanism in a Competitive World Order

by Anthea Roberts

[Professor Anthea Roberts of Australian National University is the author of numerous publications, including the topic of our joint symposium this week: Is International Law International? This is the first of several posts over the next two days on the argument in her book and reactions to it.]

We are familiar with the question: Is international law law? In my new book, I ask instead: Is international law international? Not particularly, is my answer—at least, not in the way that it tends to be conceptualized by international law academics in different states and in the international law textbooks and casebooks that they use.

When asked to reflect on the professional community of international lawyers, Oscar Schachter memorably called it an “invisible college” whose members were “dispersed throughout the world” yet “engaged in a continuous process of communication and collaboration.” But in rendering that college visible, I find that international lawyers may be better understood as constituting a “divisible college” whose members hail from different states and regions and who often form separate (though overlapping) communities with their own understandings and approaches.

In tracing these divisions and considering their consequences, I make three arguments. First, international lawyers are often subject to differences in their incoming influences and outgoing spheres of influence in ways that affect how they understand and approach international law. Second, actors, materials and approaches from some states and regions have come to dominate certain transnational flows and forums in ways that make them disproportionately instrumental in constructing the “international.” Third, existing understandings of the field are likely to be disrupted by factors such as changes in geopolitical power, making it increasingly important for international lawyers to understand the perspectives of those from unlike-minded states.

My book invites international lawyers to look in the mirror to discern and become more reflective about their blind spots and parochialism. It encourages international lawyers to recognize and speak openly about some of the socializing factors, incentives and power dynamics that shape their divisible college. It suggests that they try to see the field through the eyes of others and to diversify their sources, networks and perspectives. This call is particularly appropriate for Western international lawyers—myself included—who often study, work and publish in a Western bubble, which makes it harder for us to understand and adjust to the newly emerging competitive world order.

From National to Western Parochialism 

In an earlier blogpost titled “With Blinders On?” on Just Security, I argued that US international law often gives the impression of being US foreign relations law under a different name. By way of example, I pointed to how unusually nationalized US international law casebooks were in terms of how heavily they relied upon US cases, executive practice, legislation, academics and publications. This national focus both reflects and reinforces what Samuel Moyn has insightfully described as the “Parochialism of American Cosmopolitanism.” US insularity has many causes and consequences, from American power and exceptionalism to the locations where US international law academics typically study, work and publish.

It is common for other Western international lawyers to see such reports and feel a slight sense of glee or superiority. “Those crazy Americans,” many would say, with a knowing smile and a roll of the eyes, safe in the knowledge that they could not be accused of similar parochialism. Yet one thing that really struck home for me in this study was that though I and many of my Western colleagues were not guilty of national parochialism, we were exceedingly guilty of Western parochialism. This issue seemed to be a fitting one to raise on the European Journal of International Law’s blog and the US blog Opinio Juris.

Let me give you an example that follows from my case citation analysis on Just Security. In that piece, I pointed to how US international law casebooks were the only ones that contained a higher—and, indeed, significantly higher—percentage of cases from their own domestic courts (64%) than from international courts and tribunals (31%). To international lawyers from many other Western states, these results seem ridiculous. But what if one instead asks what percentage of all of the domestic cases cited—whether from a state’s own courts or from foreign courts—come from Western states, by which I mean states in the Western Europe and Others Group? Suddenly, the US books are no longer outliers.

 

Between 96% and 99.6% of the domestic cases cited in the most commonly used international law textbooks in these three Western states (France, the United Kingdom and the United States) come from—you guessed it—Western states. Like most international lawyers, I was aware of a level of Western bias in my field. Nevertheless, I was surprised by how stark it was when I started looking at the numbers. This pattern didn’t seem to deserve the moniker “international.”

Of course, one could leap to argue that perhaps this pattern just reflects the facts on the ground. The vast majority of domestic decisions on international law may actually have been issued in Western states, so this depiction simply reflects reality. I suspect that this is not the whole story. But even if it were, this circumstance should make us consider in more detail the biases built into the very metrics that we use when seeking to understand international law. To what extent do our metrics reflect the approaches to law we are used to dealing with domestically? And to what extent do they give us a skewed understanding of the world by focusing on some states over others?

As an English-speaking, common-law-trained lawyer, I never thought it odd when I first studied international law that an important way to understand the field was through case law, both domestic and international. This study made me much more conscious of the fact that when one applies this metric, it results in outsized emphasis on the practice of Western, democratic states in general, and English-speaking, common-law ones in particular. At the same time, this metric renders almost invisible the practice of non-Western, non-democratic, civil law states. China and Russia have made important contributions to international law practice, but you won’t usually find it in their domestic courts.

Analyzing this issue among others helped me to realize that some of the approaches to international law that seem so natural to certain international lawyers can produce an effect equivalent to looking at the field through blinders. As with the US example above, this parochialism has causes and consequences, from Western power and exceptionalism to the locations where Western international law academics study, work and publish. That many Western international lawyers are trapped in a Western bubble will not surprise anyone from outside the West or those who have read or adopted Third World Approaches to International Law. But it is an uncomfortable reality that few in the West sufficiently acknowledge, let alone contemplate its possible consequences.

From Dominance to Disruption

The ideal of international law suggests that it is constructed by drawing equally on people, materials and ideas from all national and regional traditions. In reality, some national and regional actors, materials and approaches have come to dominate much of the transnational field and international lawyers’ understandings of the “international.” This point holds true for Western actors, materials and approaches in general, and Anglo-American ones in particular. The case law cited above represents a stark example of this pattern, but many others characterize the field as well, ranging from who appears before international courts and tribunals to which sources and practice these courts typically invoke.

Recognizing this situation made me wonder about how some of these patterns might be disrupted by forces such as changing geopolitical power. After the relative hegemony of Western international law approaches in the post–Cold War period, the world is entering into what I refer to as a “competitive world order” in which power is diffusing from West to East and from North to South.  In the coming decades, the international order is unlikely to be dominated by Western, liberal democratic states to the same extent as before. A significant standoff is also emerging between Western, liberal democratic states and non-Western authoritarian ones, most notably China and Russia, across multiple domains.

Three things have become clearer since I completed this book in late 2016. First, the United States and the United Kingdom have seriously stepped back from their position as global leaders following Donald Trump’s election and the Brexit vote. Anglo-American approaches that have featured so prominently in defining international fields in the last few decades seem to be quickly receding in importance. On many issues, from trade to climate change, the West is divided and weakened. American global leadership is in question and its prestige is tarnished.

Second, several non-Western states are more actively seeking to assert themselves on the international stage. China is a prime candidate, exemplified by President Xi’s endorsement of economic globalization and expansive Belt and Road project. But these aspirations underlie many other developments, such as the battle in the recent ICJ elections between India and its former colonial master, the United Kingdom, which led for the first time to a British judge not sitting on the Court. This vote represented a sea change, breaking the traditions of granting the P5 informal permanent seats on the Court and casting votes according to informal regional group quotas.

Third, states are more openly acknowledging the emergence of a new era of great-power politics and ideological competition. Specifically, the December 2017 US National Security Strategy describes a newly emerged “Competitive World” in which great-power competition has returned and it characterizes China and Russia as “revisionist powers” seeking to “challenge American power, influence, and interests” and to “shape a world antithetical to U.S. values and interests.”

In this new competitive global order, international lawyers of all stripes will need to develop a greater awareness of the diverse frameworks and narratives through which international law events are understood and arguments are made around the world. The first step in building this understanding is for international lawyers to diversify their sources and networks in an effort to see the world from different perspectives and through other eyes. The motivation for taking this step can be founded in cosmopolitan idealism (thinking international law should be more inclusive) or hard-bitten realism (along the lines of “know thy enemy”). Either way, knowledge is key, whether one ultimately accepts the alternative approaches as valid or not.

Developing such an understanding can be hard for Western international lawyers because often where we study, work and publish adds little to diversifying our perspectives. Just as those sitting in the United States often find it hard to look beyond their national standpoint, so many Western international lawyers find it hard to look beyond their geopolitical perspective. Our networks and sources are typically not national, but neither are they fully international. Yet, as power becomes more disaggregated among a larger number of more diverse states, international lawyers will experience a heightened need to adopt a “comparative international law” approach to come to grips with these differences.

In seeking to develop such an understanding, international lawyers must also be aware that some transnational flows are likely to be asymmetrical, leading to different patterns of diffusion and knowledge. For instance, elite Chinese international lawyers are far more likely to study in Western states than vice versa. Thus, Western materials and approaches are more likely to be found in China than the reverse (the power of diffusion), but Chinese international law academics are more likely to exhibit broad comprehension of Western perspectives on international law than the reverse (the power of knowledge). As China becomes an increasingly significant international player, it will want to disseminate its own approaches to international law more widely, whereas international lawyers in the West will need to deepen their knowledge of China’s interests, interpretations and approaches.

Conclusion

International law aspires to be universal; but it is also, and inevitably, a deeply human product. No international lawyer can understand all aspects of the field from all viewpoints, myself included. We are all prisoners of our own networks, languages, education, histories and trajectories. For this reason, this book should be understood as a conversation starter rather than the final word on the subject. It seeks to render into words, and provide a framework for understanding and analyzing, experiences that many international lawyers have had and yet are often not spoken about or are confined to conversations over cocktails rather than deemed worthy of scholarly treatment.

It is this sort of dialogue that I am grateful to be starting with this thought-provoking collection of international lawyers. This book raises many questions and offers only some answers. I am not yet sure what it all means or where we go from here. As the very definition of a parochial English-speaking, Western international lawyer, I have much to learn and I look forward to seeing my book—and the transnational field of international law—through the eyes of my interlocutors.

Introducing the Opinio Juris/ EJIL:Talk! Joint Symposium on Anthea Roberts’ “Is International Law International?”

by Julian Ku

We are thrilled to announce that over the next few days we will be co-hosting with EJIL:Talk! a discussion of Anthea Roberts’ new prize-winning book Is International Law International? (Oxford University Press, 2017). The book has recently been awarded the American Society of International Law’s  2018 Certificate of Merit for “Preeminent Contribution to Creative Scholarship.” As the ASIL Book Awards Committee states:

In this book, Professor Roberts takes us along as she chases the title’s question down an international law rabbit-hole to reveal a topsy-turvy world in which international law is parochial and the invisible college is rendered visible. Roberts turns a beguilingly simple question into a globe-trotting, multi-method quest for a map of international law’s players and meanings. Simultaneously irreverent and serious-minded, Roberts develops an original research agenda that takes her and the reader through the migratory flows of international lawyers around the world, the divergent methods through which they are educated, and the different professional tracks through which they are socialized. The book does not just dissolve international law’s myths of universality; it is a nascent sociology of the field of international law and the beginning of a new field of comparative international law. In an era in which Western dominance over international law no longer looks certain, this book provides the tools for a more nuanced understanding of international law’s politics, revealing the deeper meanings and stakes of current debates.

To discuss the book’s findings and main claims, EJIL:Talk! and Opinio Juris have assembled a distinguished group of international lawyers from all over the world. The discussants on EJIL:Talk! will be Professors Hélène Ruiz Fabri (Max Planck Institute Luxembourg for Procedural Law) , Vera Rusinova (National Research University ‘The Higher School of Economics’, Moscow), Bing Bing Jia (Tsingua University, Beijing). On Opinio Juris, the discussants will be Professors Paul Stephan (University of Virginia), Julian Ku (Hofstra Law School) and Marko Milanovic (University of Nottingham). . We are grateful to all of them for taking part in this discussion.The symposium will open with a post later today on both blogs by Anthea introducing her book. Readers are invited to join the discussion with comments on the posts.

Letter to the Israeli AG About the Deportation of African Asylum Seekers

by Kevin Jon Heller

The following is an open letter sent by 25 of the most eminent Israeli international lawyers to Dr. Avichai Mandelblit, Israel’s Attorney General, explaining why the government’s move to expel thousands of African asylum seekers from Israel violates international law. I think the letter, which is brilliantly argued, will be of great interest to our readers.

The letter is long, so I’ve put it after the break. Here are the signatories:

Prof. Orna Ben-Naftali, College of Management Academic Studies
Prof. Eyal Benvenisti, Tel Aviv University and Cambridge University
Prof. Tomer Broude, Hebrew University
Prof. Iris Canor, College of Management Academic Studies
Atty. Avinoam Cohen, Tel Aviv University and the College of Management Academic Studies
Dr. Natalie Davidson, Tel Aviv University
Prof. Aeyal Gross, Tel Aviv University
Prof. Guy Harpaz, Hebrew University
Prof. Moshe Hirsch, Hebrew University
Dr. Tamar Hostovsky Brandes, Ono Academic College
Prof. David Kretzmer, Hebrew University and Sapir College
Dr. Tally Kritzman-Amir, College of Law and Business
Dr. Eliav Lieblich, Tel Aviv University
Dr. Doreen Lustig, Tel Aviv University
Dr. Itamar Mann, Haifa University
Dr. Tamar Megiddo, Hebrew University
Prof. Frances Raday, Hebrew University and College of Management Academic Studies
Dr. Daphne Richemond Barak, Interdisciplinary Center Herzliya
Prof. Yael Ronen, Sha’arei Mada Umishpat Academic Center
Dr. Yaniv Roznay, Interdisciplinary Center Herzliya
Prof. Yuval Shany, Hebrew University
Dr. Sivan Shlomo-Agon, Bar-Ilan University
Dr. Michal Saliternik, Netanya Academic College
Prof. Muhammad Watad, Zefat Academic College
Dr. Reuven (Ruvi) Ziegler, Reading University and Oxford University

For questions and communications regarding this memorandum, contact Itamar Mann at imann [at] univ [dot] haifa [dot] ac [dot] il.

Mladic Convicted

by Jens David Ohlin

The ICTY Trial Chamber announced today its verdict in Prosecutor v.  Ratko Mladić and has found the defendant guilty and sentenced him to life in prison. (The judgement summary, which was read aloud in court, is available here. I don’t see a link to the full judgement; if someone else has it, please provide a link in the comments below.) Although this outcome was widely expected by most court observers, the details of the decision merit some discussion.

First, the Chamber found Mladić guilty of genocide in Srebrenica but not of genocide in the other provinces. According to the court (from the oral summary):

The Chamber then examined the specific intent of the physical perpetrators. The Chamber found by majority, Judge Orie, dissenting, that the physical perpetrators in Sanski Most, Vlasenica, and Foča, and certain perpetrators in Kotor Varoš and Prijedor Municipalities intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group. The Chamber then considered whether the targeted part constituted a substantial part of the protected group, and concluded that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part. Consequently, the Chamber was not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

This finding is consistent with other cases where the ICTY has failed to conclude that the crimes committed in these municipalities amounted to genocide. But the genocide finding for Srebrenica was reaffirmed in Mladić.

As for modes of liability, Mladić was found guilty of participating in four joint criminal enterprises. As far as I can tell from the court’s oral summary, the chamber convicted Mladić in each case of JCE I, meaning that the chamber concluded that the defendant shared the intent to carry out the crimes of the JCE (its objective). There is no reference to JCE III, i.e. liability for crimes committed by other members of the enterprise that fall outside the scope of its design but which were reasonably foreseeable. It seems as if the court felt it unnecessary to rely on the controversial JCE III, preferring instead to simply rest its conclusions on the more stable and secure JCE I theory.  (If I have misread the judgement summary in this regard, please correct me in the comments.) If this is what happened, the court has preserved JCE III as a viable theory by removing an opportunity for judicial scrutiny of the doctrine at the appeal level.

The four joint criminal enterprises were described in the following manner:

First, an Overarching JCE, which had the objective of permanently removing Muslims and Croats from Serb-claimed territory in Bosnia-Herzegovina, through the commission of the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Second, a Sarajevo JCE, which had the objective of spreading terror among the civilian population through a campaign of sniping and shelling as charged in the indictment including through murder, acts of violence the primary purpose of which is to spread terror among the civilian population and Unlawful Attacks on Civilians.

Third, a Srebrenica JCE, the objective of which was the elimination of Bosnian Muslims in Srebrenica through the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of forcible transfer, and Deportation.

Fourth, a Hostage-taking JCE, the objective of which was taking UN personnel hostage to prevent NATO from conducting air strikes against Bosnian-Serb military targets through the crime of Taking of Hostages, as a war crime.

One question I have is the relationship between the “Overarching JCE” and the other JCE. This isn’t exactly spelled out in the summary and it will be interesting to read the full judgement to understand their exact relationship. Are the second, third, and fourth JCEs merely sub-components of the overarching JCE? Or are these overlapping JCEs? How should we understand their geometric inter-relation? Furthermore, does describing one of the JCEs as “overarching” have some consequence for the application of the doctrine to the facts of this case? I would welcome thoughts from readers on this point.

Finally, with regard to the hostage-taking JCE, it is interesting to read the chamber’s conclusion that the defendant “intended the objective of the hostage-taking joint criminal enterprise, to capture UN personnel and detain them in strategic military locations to prevent NATO from launching further air strikes. The Chamber found that the Accused’s statements, in particular with regard to the fate of UNPROFOR personnel, were tantamount to having issued threats to continue to detain or to kill UN personnel, and that these threats were meant to end the air strikes.”

I also found it interesting that the chamber declined to give the defendant a reduction from a life sentence just because the defendant was acquitted on one count (genocide in the municipalities). Rather than looking at the significance of that acquittal for purposes of determining the appropriate sentence, the chamber looked to the significance of the convictions to determine Mladić’s blameworthiness.

The appeal in the case will be heard by the Mechanism (MICT).

Call for Submissions / Nominations: The Francis Lieber Prize

by Chris Borgen

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.
 
Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
 
Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.
 
Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 
 
Printed submissions must be sent to:
 
Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia  30322
USA
 
Electronic submissions must be sent to:
 
 Lblank[at]emory.edu
 
Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
 
Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 
 
In 2017, the winners were:
 
Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)


Article prize:

— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)