One hundred and ten years ago next month, British geographer Halford Mackinder presented a paper at the Royal Geographical Society in London entitled “The Geographical Pivot of History,” setting out the basic tenets of what we now call “geopolitics.”  Strategic thinking during the Cold War was in part framed by geopolitical ideas such as the struggle over key territory in the “global heartland,” namely, Eurasia. But geopolitics today has evolved. It is no longer primarily a military stuggle to take or hold territory. It is now defined by competition over ideas and institutions in relation to strategic goals. Geopolitics has become normative.  Witness Ukraine.

Tens of thousands people are in the streets of Kiev because Ukraine’s political leadership announced two weeks ago that it would not sign an Association Agreement and a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU at the EU summit in Vilnius at the end of November. Rather, the government announced that Ukraine would join the Moscow-led Eurasian Customs Union.  The relationship of foreign policy strategy to norms and laws, of high politics to people in the streets, is the stuff of normative geopolitics.

I had recently written a post about the struggle to define the normative futures of countries in Russia’s “near abroad,” particularly Ukraine, Moldova, Armenia, and Georgia.  (And written about these topics at greater length in various articles and essays.) At issue is whether these countries will become more fully integrated into “European” institutions (especially the EU) or reintegrate with revamped “Russian” institutions (such as the Eurasian Customs Union). When a state is on one side or another of a normative border (Lithuania is part of the European normative order, Belarus is in Russia’s), normative boundaries coincide with national boundaries and the situation is relatively clear. But some states, such as Ukraine, are what I have called “systemic borderlands” that contain aspects of two or more normative systems. When normative systems overlap and jostle within a country, the result can be normative friction.  This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory or which international organizations a state may join.

Ukraine is a particularly stark example of a systemic borderland; its electoral map shows the normative division of the country between further integration with the EU or  with Russia.  The NY Times reported on November 21 that Ukraine’s decision not to sign the Association Agreement:

…largely scuttles what had been the European Union’s most important foreign policy initiative: an ambitious effort to draw in former Soviet republics and lock them on a trajectory of changes based on Western political and economic sensibilities. The project, called the Eastern Partnership program, began more than four years ago.

[This] a victory for President Vladimir V. Putin of Russia. He had maneuvered forcefully to derail the plans, which he regarded as a serious threat, an economic version of the West’s effort to build military power by expanding NATO eastward. In September, similar pressure by Russia forced Armenia to abandon its talks with the Europeans.

The EU issued a memorandum reiterating its (at least official) view that the signing of DCFTAs and Association Agreements with the EU is not normative competition, but rather normative bridge-building between east and west:

While being aware of the external pressure that Ukraine is experiencing, we believe that short term considerations should not override the long term benefits that this partnership would bring. However the European Union will not force Ukraine, or any other partner, to choose between the European Union or any other regional entity. It is up to Ukraine to freely decide what kind of engagement they seek with the European Union…

We therefore strongly disapprove of the Russian position and actions in this respect. The Association Agreement and a DCFTA are opportunities to accompany our common neighbours towards modern, prosperous and rule-based democracies. Stronger relations with the European Union do not come at the expense of relations between our Eastern partners and their other neighbours, such as Russia. The Eastern Partnership is conceived as a win-win where we all stand to gain.

This attempt at framing increasing integration with the EU as a “win-win” for the EU, Russia, and Ukraine, has not persuaded Vladimir Putin…(Continue Reading)

Calls for Papers

• December 1, 2013, is the deadline for applications for the Third Annual Junior Faculty Forum for International Law, which will be held at the University of Melbourne on July 7, 8 and 9, 2014. Regrettably, no applications can be received after this date, and full details of the application process and requirements are here.
• The Comparative Constitutional Law and Administrative Law Quarterly, an online journal based at the National Law University, Jodhpur, India, is calling for papers for its fourth issue. More information is here.
• On June 5-6, 2014, Edge Hill University (Omskirk, UK) is hosting a two-day
  international workshop. The event will focus on the legal phenomenon of cross-fertilization between international criminal law and human rights principles developed by specialized supranational bodies. The goal is to critically assess the manner in which widely-recognized standards of human rights have been used (or misused) by international criminal tribunals. Proposals are welcomed on topics specified in the call for papers. Interested participants should e-mail an abstract of up to 500 words and a CV by February 15, 2014. Speakers will be informed of acceptance by March 1.
• The College of Law, Qatar University and the Qatari Branch of the International Law Association are co-organizing an international conference focusing on ‘The Syrian Crisis and International Law’. The conference is scheduled to take place on February 25-26, 2014 in Doha (Qatar). Invited speakers will include academics, diplomats, activists and legal practitioners who will discuss different aspects of International Law applicable to the Syrian crisis. The conference aims to not only revisit the tragic events that have occurred but also, most importantly, to think ahead in the quest for peace and justice. The overall objective is to exchange ideas and suggestions on the future of the rule of law in Syria. Interested participants should submit an abstract (800 words maximum) summarizing their argument and ideas that they intend to develop in their presentation. Abstracts should be sent to Dr Yaser Khalaileh or to Dr Adamantia Rachovitsa by December 30, 2013. More information is here.

Events

• The Institute for National Security and Counterterrorism (INSCT) at Syracuse University and the Institute for Counter-Terrorism (ICT) at the Interdiscipinary Center, Herzliya, Israel, are jointly offering an Executive Course on “Counterterrorism in the 21st Century” at Syracuse University’s new Fisher Center in New York City.  More information is here.
• The Inter-American Human Rights Moot Court Competition is a unique trilingual (English, Portuguese, and Spanish) competition established to train law students how to use the Inter-American human rights legal system as a legitimate forum for redressing human rights violations.The 19^th Annual Competition will take place from May 18-23, 2014 in Washington, DC and the theme of the Competition is “Human Rights and Persons with Disabilities and International Human Rights Law“. Since its inception in 1995, the yearly Competition has trained over 2500 students and faculty participants from over 252 universities throughout the Americas and beyond. Written on a cutting-edge topic currently debated within the Inter-American system, the hypothetical case operates as the basis of the competition, and students argue the merits of this case by writing legal memoranda and preparing oral arguments for presentation in front of human rights experts acting as the Inter-American Court of Human Rights. To learn more about the Competition, please visit the website.   Registration is now open for the 2014 competition. Should you have any questions regarding the Competition, please do not hesitate to contact the Coordinator by email at or by phone at +1-202-274-4215.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington in Seattle.]

The International Tribunal for the Law of the Sea (ITLOS) dealt a blow to the Russian Federation on November 22nd, when it ordered Moscow to release the Arctic Sunrise and the remainder of the Greenpeace protestors who were on the vessel when Russia seized it on September 19, 2013.  Shortly after the tribunal’s decision was announced, however, the Voice of Russia reported that the Russian government does not intend to comply with the order.

The case is the Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation), ITLOS Case No. 22, Provisional Measures, Order of Nov. 22, 2013. The tribunal’s order, which is conditioned upon the Dutch government posting a €3.6 million bond or bank guarantee, was signed by Shunji Yanai, president of ITLOS, on behalf of 19 ITLOS judges. Two judges dissented: Vladimir Golitsyn of Russia and Markiyan Kulyk of Ukraine. In addition, separate opinions were issued by Judges Jesus and Paik individually, along with an important joint separate opinion by Judges Wolfrum and Kelly. …(Continue Reading)

I don’t have any insights to offer on the big news this weekend, that legally-non binding-UNSC-resolution-violating agreement in Geneva.  But I did want to note one other big sort-of-law news item from the other side of the world: China’s announcement that it is drawing an Air Defense Identification Zone (ADIZ) in the East China Sea, including over the disputed Diaoyu/Senkaku Islands.

China’s announcement has riled up both Japan (which has declared it “totally unacceptable”) and the United States (which has expressed “deep concerns.”)

Why all the fuss? China’s new ADIZ appears to overlap with Japan’s own ADIZ in some crucial places (like the Senkakus/Diaoyu) as well as South Korea’s and Taiwan’s.  China has declared that aircraft entering its ADIZ must report flight information to Chinese authorities (actually, its military) and (here’s the scary part), “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.”  The U.S. is already hinting that it will test this resolve by flying aircraft through the ADIZ.  (Wonder which lucky US pilot draws that mission!)

Although provocative and dangerous, it seem clear to me that China’s ADIZ does not violate international law.  Indeed, China’s Foreign Ministry was perfectly correct today in its claim that its ADIZ is consistent with “the U.N. Charter and related state practice.”  Countries (led by the U.S.) have long drawn ADIZs beyond their national sovereign airspace as a measure to protect their national airspace.  This practice, although not exactly blessed by any treaty, does not appear to violate either the Chicago Convention or UNCLOS.  (See Peter Dutton’s very solid review of ADIZs here in the American Journal of International Law for a good discussion on this point).

If China has sovereignty over the Diaoyu Islands, then it is perfectly legal for it to declare an ADIZ beyond those islands to protect the airspace above those islands.  It is a little less clear why China needs the rest of the ADIZ, but it is presumably aimed at protecting its national airspace.  The U.S. State Department has already offered China an interpretive out of creating unnecessary conflict:

The United States does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace. We urge China not to implement its threat to take action against aircraft that do not identify themselves or obey orders from Beijing.

Now the accuracy of this description of US practice could be questioned, but it is probably right. In recent years, the U.S. has allowed Russian bombers to fly through its ADIZ over Alaska.  If China follows this practice, this could help a great deal to diffuse tensions. One can only hope. Early signs are not promising,as China has essentially told the U.S. to shut up and butt out of this issue.

A flurry of news today over the announcement that Iran has cut a deal with six major world powers — the Permanent 5 members of the UN Security Council — the US, Russia, China, France and the UK — plus Germany.  The text of the ‘Joint Plan of Action’ is also widely available (see here or here).

My first reaction on looking at this ‘deal’ is that it’s not legally binding under international law.  Look at how the Preamble begins:

The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful. Iran reaffirms that under no circumstances will Iran ever seek or develop any nuclear weapons….

The ‘goal’ implies something aspirational rather than required.  The big-ticket commitment that Iran won’t seek or develop nuclear weapons is also referenced as a ‘reaffirmation’ rather than an affirmative commitment via this text.

Similarly, the operative paragraphs maintain an emphasis on avoiding language of legal intent:

Elements of a first step

The first step would be time-bound, with a duration of 6 months, and renewable by mutual consent, during which all parties will work to maintain a constructive atmosphere for negotiations in good faith.

Iran would undertake the following voluntary measures:

• From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line
• Iran announces that it will not enrich uranium over 5% for the duration of the 6 months. . . . .

*********
In return, the E3/EU+3 would undertake the following voluntary measures:

• Pause efforts to further reduce Iran’s crude oil sales, enabling Iran’s current customers to  purchase their current average amounts of crude oil. Enable the repatriation of an agreed amount of revenue held abroad. For such oil sales, suspend the EU and U.S. sanctions on associated insurance and transportation services.
• Suspend U.S. and EU sanctions on:
  • Iran’s petrochemical exports, as well as sanctions on associated services.5
  • Gold and precious metals, as well as sanctions on associated services.
• · Suspend U.S. sanctions on Iran’s auto industry, as well as sanctions on associated services . . .

(emphasis added)

Note the operative verb in these paragraphs is ‘would’ not ‘shall’ (which everyone would agree connotes an intention to be legally bound) or even ‘will’ (which the United States often uses to convey a legal intent even through the British and several other countries insist signals an agreement meant to have political, in lieu of legal, force).

To further emphasize the political and non-legally binding nature of this agreement, note the two sides emphasize that the measures listed are ‘voluntary’.  Moreover, the document is unsigned and lacks final clauses.  So, the bottom line for me . . . this isn’t binding under international law.  It’s a political commitment, not a legal one.

OK.  Say I’m right?  Why does it matter if this is not a treaty?  To be clear, there’s nothing entirely novel about concluding a major political document in a non-legal form — from the Atlantic Charter, to the Shanghai Communique to the Helsinki Accords, there are plenty of ‘big ticket’ precedents for doing major deals in legally non-binding texts.  Nor is it that political commitments are devoid of content — to be sure they can contain much that is aspirational or even puffery.  But, many political commitments can contain significant expectations of changes to future behavior and, at first glance, I’d say the Joint Plan of Action falls in the latter category.  The text is chock full of commitments both sides indicate they’ll be taking in the next six months on the path to a comprehensive settlement with respect to the future of Iran’s nuclear program.

That said, I think there are at least three significant implications of the choice of a non-treaty form for this deal.  First, I think it offers all sides flexibility – all seven parties are cloaking their expectations of what’s going to happen now behind terms that allow them to turn on a dime as necessary, either to back away from their ‘voluntary measures’ or to adjust them as all involved carefully monitor the other side’s performance.  Indeed, I expect that such flexibility was a key criterion for the sort of cooperation this deal envisages.  Second, by choosing a political deal rather than a legal one, I think the results are less credible than if they’d been done via a more august instrument like a treaty.  The treaty signals a level of commitment that just isn’t available with respect to an unsigned ‘joint plan’.   Now, maybe a major legal text wasn’t possible in the time frame all sides were working under, but I’d be surprised if any subsequent, final deal isn’t coached in a legal form given the greater credibility that accompanies those sorts of promises.

For the United States, though, I think the third, and most significant, implication of this deal taking a political form is the fact that the Obama Administration doesn’t have to get the Senate or the Congress as a whole to approve it.  Legally binding treaties and international agreements require the conclusion of specific domestic approval procedures.  The Constitution contemplates the Senate giving advice and consent by a 2/3rd majority to Treaties (and most arms control agreements are done as Treaties).  Modern practice meanwhile more regularly favors ‘congressional-executive’ agreements where Congress approves of the conclusion of the agreement before or after the deal is done.  In other cases, the President may invoke his sole executive powers to authorize the conclusion of a deal by himself.  But, when it comes to political commitments, there are no constitutional precedents requiring that Congress as a whole or the Senate authorize the commitment’s conclusion.  Now, together with Josh Newcomer, I’ve argued previously that this status quo is constitutionally problematic where political commitments can function in much the same way as treaties.  I fear political commitments may function as a loop-hole for the Executive to do deals that he could not do if he had to go to Congress or the Senate.  I’m not sure that this is such a case, but it’s certainly worth thinking about the consequences of having the United States pursue this major foreign policy shift where the U.S. legislature has so little say in the matter (at least until such time as any deal requires changes to U.S. law itself).

What do others think?  Am I right the Joint Plan of Action is not intended to be a treaty or an international agreement?  And do you agree that it was a means for the United States to conclude a deal without involving a Congress, at least some portion of which has been overtly hostile to any negotiations with Iran?

[Update: over at Lawfare, Ingrid Wuerth rightly calls me to task for my earlier title -- referencing a 'U.S.-Iran' deal when there are 7 States involved -- en route to discussing whether this text would've required congressional or Senate approval IF it was legally binding.  I've fixed the title accordingly and recommend readers check out Ingrid's post.]

Not otherwise newsworthy. . . except that it makes the US the only country in the world that will not have ratified it (full list of accessions here). It’s a glaring manifestation of American exceptionalism, and not in a good way.

With the Disabilities Convention making another go of it in the Senate, perhaps the US could turn the corner on its problem with human rights treaties (Bob Corker is wobbling, would be a key switch to yes). Holding out in complete isolation will increasingly be of symbolic value only, catering to a shrinking minority of Boltonite international law nay-sayers, as universal treaty norms move into the realm of customary law and creep in through other channels.

[Zoran Oklopcic is an Associate Professor of International Law at Carleton University in Canada. He focuses on self-determination, popular sovereignty in theory of constitutional law and on the theories of secession and territorial rights]

I am grateful to Professor Brad Roth for engaging with my article, “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary”. In his response, Roth embraces my understanding of his account of self-determination as “emptied” of normative content, and, in fact, insists on rejecting projects that would seek to give it a more precise normative meaning.

In other words, it is less so that my argument misses the target, than that his ‘emptied’ understanding of self-determination is robust enough to sustain a political critique. I say ‘political’, because the norm of self-determination is not just an object of legal exegesis; its understanding, perhaps more than any other norm of international law, betrays a particular political vision, not only of state-formation, but of the political ordering of the world as well.

My project was not to offer a new jurisprudential reading of self-determination, nor to insist that the accommodation of nationalist pluralism must be reintroduced as part of “external” self-determination’s promise. In reading Roth’s, Cohen’s and Krisch’s recent contributions primarily as political theories of pluralism with an emancipatory promise, I was more interested to argue that global pluralist commitments have, in the past, been accompanied by global or regional political visions that have sustained them, and which have provided space for the recognition and accommodation of ethnocultural pluralism. For example, demands for the accommodation of national or racial diversity in some cases, such as in French West Africa in the 1950s, initially took the form not of external self-determination, but rather of the wholesale constitutional transformation of transcontinental empires, in a way in which it would have increased, if successful, the political stake of the imperial ‘periphery’ in the constitutional affairs of the metropole.

I hasten to add that from a doctrinal point of view, there is little to disagree with Roth. (more…)

[Brad R. Roth is a Professor of Law at Wayne State University in Detroit, Michigan, where he teaches international law, comparative public law, and political and legal theory]

In “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary,” Zoran Oklopcic gives an enlightening account of a set of related approaches to the international norm of self-determination of peoples.  In this rendering, I have the honor of being cast as the representative of “Empty”:  that is to say, my approach to international legal pluralism “empties” the self-determination norm of the contents that might otherwise be supplied by ethno-nationalism or by “the democratic ideal of the consent of the governed.”  Although the expression had not occurred to me, I am pleased to defend – indeed, perhaps, to insist on – an “empty” conception of self-determination in preference to the alternatives on offer.

In a superficial sense, the term “self-determination” necessarily implies an emptiness as to the substance of what is determined; otherwise, the determiner would not be the “self.”  Yet on closer examination, externally-dictated substance inevitably creeps into the emptiness. The self-determination formula generally withholds judgment about what should count as legitimate public order in particular territories, but in addressing myriad local political struggles – struggles not only over what is determined, but over the delimitation of the self – it nonetheless deviates from impartiality in two ways.
(more…)

[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian countries, even Asian countries locked into disputes with each other.  Like the Philippines…and China.

Which is why I was so pleased to witness a frank exchange last week at AsianSIL’s biennial conference in New Delhi, India between two unofficial but influential representatives of each country’s legal positions in the upcoming Philippines-China UNCLOS arbitration. In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event).  In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice.  Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post.  One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.  Moreover, she has served a general legal adviser to the Chinese Ministry of Foreign Affairs, including on its submission to the ICJ in the Kosovo advisory proceeding.  Her views are likely to be close or the same as the views of the Chinese government on these issues.  Since the Chinese government has offered almost no official explanation of its legal position, her statement may be the best we will get from China in the near future.[*UPDATE: On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below. See below for her full disclaimer].

The following is based on my notes of her presentation. They are necessarily incomplete, but hopefully a fair summary of her views.

Columbia University’s Jagdish Bhagwati and Francisco Rivera-Batiz have an excellent piece in the November/December issue of Foreign Affairs in which they throw up their hands at the prospect of comprehensive immigration reform and look to the states for some progress on the issue. The piece served as the basis for Bhagwati’s delivery last week of the 2013 Emma Lazarus Lecture, co-sponsored by Columbia Law School and its School of International and Public Affairs. I was delighted to serve as a discussant for the lecture.

Bhagwati makes two basic points in the piece: that federal policy on undocumented immigrants is inhumane in an unfixable way, and that the more promising vehicle for advancing rights is through competition among the states. We should, in other words, give up on Washington and look to state capitals by way of moving forward on immigration reform.

Count me in. As Bhagwati points out (the reflexes of many immigrant advocates notwithstanding), the federal government, even under Democrat presidents, is capable of great cruelties when it comes to the treatment of undocumented aliens. The Obama Administration has deported a record number of non-citizens, many of them for trivial crimes. The Senate’s version of immigration reform includes a ridiculous increase (by almost everyone’s estimation) in the border security budget. Anyone assuming that comprehensive immigration reform will be friendly to immigrant interests has history to argue against.

The states, meanwhile, will see the error of their ways in treating undocumented immigrants badly. If undocumented immigrants feel unwelcome, they will leave for more hospitable jurisdictions. That by itself will harm a state’s economy — witness the crops left rotting on the vines in Alabama after it enacted the draconian HB 56 in 2011. Greater harm results from a tarnished brand. After Arizona enacted SB 1070, it lost tens of millions of dollars in convention and tourism dollars (Mexico issued a travel advisory cautioning against travel there). It can hardly help Alabama’s future efforts to attract big-ticket foreign investment after it locked up German and then Japanese auto manufacturing executives for possible violations of its law.

Hence the very real possibilities of “race to the top” federalism in the immigration context.

Even in the wake of the Supreme Court’s decision last year in Arizona v. United States, which gutted SB 1070, the states have room to differentiate their treatment of undocumented aliens. States can adopt their own sanctions regimes against those who employ undocumented workers. They are free to grant or deny in-state tuition to undocumented alien college students. They can grant or deny drivers licenses to the so-called childhood arrivals insulated from deportation as a matter of Obama administration policy. They can grant or deny other state public benefits to undocumented aliens. (The most recent example: whether an undocumented immigrant is eligible to practice law.) Finally, they can adopt (or not) the kind of “papers, please” measure that the Supreme Court upheld in the Arizona case.

But this discretion is mostly at the margins. For the states to play a central role in immigration reform, they’ll need more regulatory space. That will require federal activation. Devolving power to the states itself might grease the wheels to securing comprehensive immigration reform in Washington, allowing federal legislators to pass the buck downstairs. . . .

Your weekly selection of international law and international relations headlines from around the world:

Middle East

• Israel has secretly detained a suspected al-Qaeda biological weapons expert for more than three years, court documents disclosed, after the man appealed to the Israeli Supreme Court to free him.
• The president of Iraqi Kurdistan has called on Turkey’s Kurds to back a flagging peace process with Ankara, in a show of support for Prime Minister Tayyip Erdogan’s bid to overcome a three-decade conflict.
• US Secretary of State John Kerry will travel to Israel later this week to discuss a proposed deal between world powers and Iran on the Islamic Republic’s nuclear program.

Asia

• Australia’s spy agencies attempted to listen in on the mobile phone conversations of Indonesia’s president and targeted the mobile phones of his wife and senior ministers, citing documents leaked by NSA contractor Edward Snowden.
• Pakistan has announced that it would put former military ruler Pervez Musharraf on trial for treason, punishable by death or life imprisonment, for imposing emergency rule in 2007.
• Commonwealth leaders have agreed on steps to tackle high debt and poverty as they staged a show of unity after a summit in Sri Lanka dominated by a bitter dispute over war crimes.
• A senior Sri Lanka’s minister has said the government will not allow an international probe into alleged war crimes during its 27-year ethnic conflict, despite mounting pressure from abroad.
• China will loosen its decades-old one-child policy by allowing two children for families with one parent who was an only child and will abolish a much-criticized labour camp system, its ruling Communist Party said.

Africa

• Former members of the Seleka rebel group have shot dead a Central African Republic judge and his assistant, a para-military police official has said.
• The UN Security Council has rejected an African demand to suspend the International Criminal Court trial of Kenya’s president and his deputy for one year.
• According to the UN, at least 460,000 people in Sudan’s Darfur region have been displaced this year as a result of tribal violence and rebel-government battles.
• The UN via its Special Rapporteur on Torture, Juan Mendez, has found that squalid conditions, poor food and overcrowding in Ghana’s prisons amount to “cruel, inhuman and degrading treatment.”

Europe

• French President Francois Hollande has called for a complete halt to Israel’s settlement activities on land the Palestinians want for a future state.
• EJIL: Talk! offers commentary on the United Kingdom Supreme Court’s recent decision in the R. v. Mohammed Gul case defining terrorism in times of armed conflict.
• OnNovember 14, the Court of Justice of the European Union delivered its judgment in Armin Maletic and Marianne Maletic v lastminute.com GmbH and TUI Österreich GmbH and defined the concept of “international character of consumer contracts.”
• The European Court of Human Rights has rejected a request from the Polish government to exclude the press and public from a hearing next month into whether Poland hosted a secret CIA jail on its soil.

Americas

• The US Department of Defense announced that media entities and other would-be observers will not be allowed to sit in on the first session of the Periodic Review Board, a parole-style hearing process for detainees held at Guantanamo Bay.
• The United States military is considering a mission to train Libyan security personnel with the goal of creating a force of 5,000 to 7,000 conventional soldiers and a separate, smaller unit for specialized counterterrorism missions.
• The US has been quietly offering as much as $10 million since January for information about the attack on a diplomatic post in Benghazi, Libya.

[James G. Stewart is an Assistant Professor at the University of British Columbia Law Faculty.  Until recently, he was on the board of the Conflict Awareness Project, but had not role in this investigation.]

Something momentus happened in Switzerland last week—national prosecutors opened a criminal investigation into one of the world’s leading gold refineries, for pillaging Congolese natural recourses. Pillage, of course, is a war crime. If the case leads to a conviction, it will represent the first ever instance of corporate responsibility for an international crime, and the only time since Nuremberg that pillage of natural resources has featured in a criminal trial. In this short blog, I complement an op-ed I published about this today by setting out the background to the case, some of the legal work that I undertook with Ken Hurwitz at the Open Society Justice Initiative prior to it, and the contemporary significance of all this, especially in the wake of the Alien Tort Statute’s demise.

Argor-Heraeus is one of the world’s largest refiners of precious metals. Between 2004 and 2005, the company is alleged to have acquired approximately three tons of pillaged gold from the Congolese rebel group the Front des Nationalistes Intégrationnistes (FNI), through intermediaries in Uganda and the Jersey Islands. As the International Criminal Court heard recently in a case against one of the FNI’s alleged leaders, the armed group was a Lendu militia based in the North-East of the Congo, neighboring Uganda. According to an excellent report by Human Rights Watch, their existence was largely dependent on the extraction and sale of pillaged gold. According to these new allegations, major western producers were buying.

The reappearance of commercial responsibility for pillaging conflict commodities is a long time in the coming… (Continue Reading)