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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)
 

 

Ghana v. Côte d’Ivoire: Unilateral Oil Activities in Disputed Marine Areas

by Xuechan Ma

[Xuechan Ma, PhD candidate at Grotius Center for International Legal Studies of Leiden University, the Netherlands, researching on the topic of international cooperation in disputed marine areas; L.L.M. & L.L.B. at Peking University, China. Email: maxuechan [at] gmail [dot] com.]

The Special Chamber of the ITLOS delivered its judgement of the Ghana v. Côte d’Ivoire case on 23 September 2017, which pertained to unilateral oil activities in disputed marine areas. Both parties agreed that the dispute concerned the establishment of a single maritime boundary to delimit the territorial sea, exclusive economic zone (EEZ) and continental shelf, including the continental shelf beyond 200 nautical miles, between them in the Atlantic Ocean. While both parties concurred that there was no formally concluded delimitation agreement between them, they disagreed as to whether there had been a maritime boundary established by a tacit agreement. Ghana argued that both parties had recognized and respected a maritime boundary in the area concerned on the basis of a tacit agreement which had been developed or confirmed as a result of the oil activities of both parties over years. By contrast, Côte d’Ivoire claimed that such a tacit agreement did not exist and that the oil practice of Ghana in the disputed marine areas should be deemed a violation of international law, including Article 83(3) of United Nations Convention on the Law of the Sea (UNCLOS).

Notably, the oil activities discussed in this case are unilateral due to the absence of any provisional arrangement between the parties. This case indeed contains two interlinked legal issues in relation to unilateral oil activities in disputed marine areas. The first issue pertains to the legal effect of unilateral oil activities. Put differently, can such oil activities improve the legal position of the parties to the dispute? The second issue is about the legality of unilateral oil activities. In other words, are such unilateral activities in contravention of certain international obligations undertaken by a State to a marine dispute? These two issues are interlinked in the sense that if these activities are deemed illegal, it is impossible to conclude that such activities can contribute to the improvement of the legal position of the party who undertakes them. The reason is quite simple: otherwise it would entail positive implications for the illegal conduct of States. Nevertheless, the converse is not necessarily true. Even if unilateral oil activities cannot have any legal effect on improving a State’s legal position, they are not necessarily deemed illegal.

The Special Chamber first addressed the issue about the legal effect of unilateral oil activities. In its view, evidence for the purpose of establishing a tacit agreement regarding a maritime boundary should be compelling. In the present case, the Special Chamber considered that the mutual, consistent and long-standing oil practice and the adjoining oil concession limits alleged by Ghana might reflect the existence of a maritime boundary or might be explained by other reasons. Thus, it was not convinced of the existence of a tacit agreement in relation to a maritime boundary in the area concerned. Moreover, the Special Chamber explicitly concluded that the all-purpose nature of the maritime boundary meant that evidence relating solely to the specific purpose of oil activities in the seabed and subsoil could not be determinative of the extent of the boundary. In addition, it also concluded that in principle the location of oil resources could not be considered a relevant circumstance in maritime delimitation and that the only exception to this principle is that the delimitation was “likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned”. Nevertheless, Côte d’Ivoire had not advanced any arguments which might have led the Special Chamber to be convinced that the situation in this case constituted the aforementioned exception.

As mentioned above, the lack of legal effect on improving a State’s legal position does not necessarily indicate that unilateral oil activities should be deemed illegal. Hence, the Special Chamber had to deal with the issue of legality separately. Indeed, this issue was entertained by the Special Chamber during the proceedings of provisional measures. Côte d’Ivoire requested Ghana be ordered to suspend all ongoing oil exploration and exploitation operations and refrain from granting any new operations in the disputed area. The Special Chamber admitted that both the ongoing and future exploration and exploitation activities would result in significant and permanent modification of the physical character of the area in dispute and thus create a risk of irreversible prejudice to the rights of Côte d’Ivoire and also cause harm to the marine environment. However, it also noted that suspending Ghana’s ongoing activities in respect of which drilling had already taken place would not only entail the risk of considerable financial loss to Ghana and its concessionaries, but also pose a serious danger to the marine environment, particularly caused by the deterioration of equipment. In this light, it considered that an order suspending all ongoing activities would cause prejudice to the rights claimed by Ghana and create an undue burden on it. Hence, the Special Chamber issued an order of provisional measures requesting that Ghana refrain from conducting any new drilling in the disputed area and authorizing Ghana to continue the ongoing drilling in the disputed area as long as it carried out strict and continuous monitoring of all activities undertaken by it or with its authorization “with a view to ensuring the prevention of serious harm to the marine environment”.

This finding seems to contradict previous jurisprudence. In the Guyana v. Suriname case, Suriname claimed that by allowing its concession holder to undertake exploratory drilling in the disputed marine areas Guyana violated its obligation not to jeopardize or hamper the reaching of the final agreement as provided by Article 83(3) of UNCLOS. The tribunal took the position that exploitation of oil and gas reserves as well as exploratory drilling belonged to activities of the kind that lead to a permanent physical change to the marine environment and thus should be prohibited in disputed waters. On this basis, the tribunal concluded that “Guyana’s authorisation of its concession holder to undertake exploratory drilling in disputed waters constituted a violation of its obligation to make every effort not to jeopardise or hamper the reaching of a final agreement on delimitation”.

In the present case, Ghana argued that this case should be distinguished from the Guyana v. Suriname case in the sense that the latter involved wholly new and unilateral activities that had been undertaken following the emergence of the dispute, namely the critical date, while in this case, Ghana’s activities were “simply the continuation of decades of previous activity of a kind which would have been conducted by Côte d’Ivoire”. By this argument, Ghana implied that its ongoing activities were a normal continuation of acts conducted prior to the critical date and thus could not be deemed illegal. However, the Special Chamber had already negated the relevance of the notion of critical date in the present case on the ground that the activities of both parties in the maritime area concerned had not changed over years. In fact, even if the notion of critical date were held to be relevant in this case, Ghana’s argument would still be untenable because it mixed two issues, namely the legal effect and the legality of unilateral acts. The notion of critical date is only relevant to the legal effect of unilateral oil activities. Put differently, unilateral oil activities as a normal continuation of acts prior to the critical date could not improve the legal position of the party which relied on them. However, this cannot lead to a conclusion on whether such unilateral activities should be deemed legal or illegal.

Nevertheless, there is indeed some difference between the Guyana v. Suriname case and the present case. The oil activities involved in the former case only included exploratory drilling and did not include any actual exploitation operation. Consequently, the suspension of such activities would not entail the risk of considerable financial loss to Guyana and its concessionaries and pose a serious danger to the marine environment particularly caused by the deterioration of equipment. By contrast, in the present case, the oil practice included oil concessions, seismic surveys and exploration and drilling activities. The extent and intensity of the unilateral oil activities undertaken by Ghana were much greater than that of Guyana. Consequently, suspending Ghana’s activities would cause prejudice to the rights claimed by Ghana and create an undue burden on it. Moreover, it is generally accepted that an international court or tribunal can only prescribe provisional measures when there is “a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute”. Therefore, a provisional measure could not itself cause prejudice to the rights of both parties in dispute. In this light, it is understandable why the Special Chamber had refused to order Ghana to stop all ongoing drillings in the disputed area during the proceedings of provisional measures.

Furthermore, it is worth noting that the standard for an activity to be qualified as a provisional measure differs from that for an activity to be considered not hampering or jeopardising the reaching of a final agreement. The tribunal has confirmed in the Guyana v. Suriname case that the former standard has a higher threshold than the latter. In other words, activities qualified as a provisional measure can be considered not a violation of the obligation not to hamper or jeopardize the reaching of a final agreement under Article 83(3) of UNCLOS. But the converse is not necessarily true. In the present case, the fact that the Special Chamber did not order the suspension of ongoing oil exploration and exploitation operations as a provisional measure could not indicate that such ongoing activities did not violate the obligation under Article 83(3) of UNCLOS.

It is a pity that the Special Chamber missed the opportunity to further address the compliance of Ghana’s unilateral oil activities in the disputed marine area with Article 83(3) of UNCLOS. Côte d’Ivoire had requested the Special Chamber to declare that unilateral activities undertaken by Ghana after the issuance of the provisional measures “in the Ivorian maritime area” constituted a violation of the obligation not to jeopardize or hamper the reaching of the final agreement as provided by Article 83(3) of UNCLOS. The Special Chamber opted not to explicitly address the real issue as to whether the unilateral oil activities undertaken by Ghana in the disputed area constituted a violation of the obligation set forth by Article 83(3) of UNCLOS. It simply concluded that the activities of Ghana did not meet the qualification of the relevant submission of Côte d’Ivoire since such activities took place not “in the Ivorian maritime area” but in an area attributed to Ghana. This finding implies that unilateral oil activities would not be deemed illegal as long as relevant areas of oil operations are found to belong to the party who has undertaken the activities.

To conclude, the judgement in this case contributes to clarifying the legal effect of unilateral oil activities in disputed marine areas. It is explicitly declared that unilateral oil activities have no legal effect on improving the legal position of a State to a marine dispute. However, by circumventing the issue about the legality of unilateral oil activities in disputed marine areas, this case may have negative impact on other unsettled marine disputes around the world. Following this jurisprudence, an international court or tribunal could not order a provisional measure to suspend ongoing unilateral oil activities in marine area in dispute as long as the extent and intensity of such oil activities are so great that suspending such activities would cause irreparable prejudice to the right of the party who undertakes such activities. In this sense, it can be imagined that States to a marine dispute would be motivated to undertake as many unilateral oil exploration and exploitation activities as possible since these unilateral activities would not be deemed illegal provided that relevant marine areas of oil operations are found to belong to them in the end.

International Law Pays No Homage to Catalonia’s Declaration of Independence

by Julian Ku

International law is famously mushy and subject to a variety of interpretations.  But there are some issues upon which there is more consensus under international law, such as the illegality of Russia’s annexation of Crimea.  But is there any reasonable argument favoring the legality of the Catalan Parliament’s recent declaration of independence from Spain?  I don’t think so.

At the outset, it is worth reminding ourselves, as Chris does in this post on Crimea, that there is no right to secede under international law. Chris argues that secession is a factual question: it has either occurred or it has not occurred.  But he says that legality of secession remains contested by international lawyers.

I agree with Chris that there is no right to secede under international law (see my post on Calexit here), but I would add that secession is generally only legal under international law when the parent state gives consent to secession.  Such consent might occur after a civil war or rebellion, but it seems a necessary formality to legalize a secession.  On the flip side, as is the case in both Spain or the United States, the domestic law of a parent country usually prohibits secession absent such consent.  Section 2 of the Spanish Constitution of 1978 begins by declaring that is based on “on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards.” Similarly, the U.S. Supreme Court decided in the 1869 Texas v. White decision that “[w]hen Texas became one of the United States, she entered into an indissoluble relation,”

Thus, there is no international legal right to secede, and it is usually (and appears clearly) illegal for Catalonia to do so under Spanish constitutional law.  It is for this reason that I do not think there is any reasonable argument that the Catalan declaration of independence is lawful or protected by international law.

The Catalans might (and do) fall back on invocations of the international right of self-determination.  Such a right does indeed exist under international law, but it is highly doubtful that such a right justifies secession in the case of Catalan. The right of self-determination does not guarantee the right of secession.  Moreover, as the Supreme Court of Canada rightly held in the case of Quebec:

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

Unlike Serbia under Milosevic with respect to Kosovars, Spain is a state which has granted Catalonians representation on the basis of equality and without discrimination. It is also not a situation of decolonization, as Professor Sterio explained on OJ here.   I just don’t see a credible argument here that the situation of the Catalonians triggers some kind of “external” right of self-determination.

Does this matter? At the margins, the lack of legality for the Catalans’ declaration of independence probably bolsters the unwillingness of any foreign state to recognize Catalonia as an independent state. I am doubtful legality is decisive here, but it certainly weakens what is already a pretty weak Catalan case for independence.

Upcoming Event on UN Accountability

by Kristen Boon

I am pleased to announce an upcoming experts workshop on UN Accountability on October 19 at Seton Hall Law School.

This workshop will explore the liability of International Organizations for international wrongs, as well address direct, indirect or shared responsibility. It will offer a detailed examination of accountability, and what models of external and internal international dispute resolution currently exist, and should exist in the future. In light of the recent suggestion that victims of international wrongs should be made whole by charitable contributions, it will also discuss redress and compensation for victims of international wrongs.  

The keynote address will be given by Professor Philip Alston on The Strengths and Weaknesses of External Accountability.

The program will end with a book launch of the Research Handbook on UN Sanctions and International Law, edited by Professor Larissa van den Herik.

We would welcome participants interested in the subject. After the event, a group will go to the opening panel of ILW at the NYC Bar Association.

For the complete program, and to RSVP please see the webpage here.

 

Apparently Perfidy Is Not Prohibited in 2256

by Kevin Jon Heller

I have just started watching Star Trek: Discovery, the first new Star Trek series in a decade. It’s excellent — dark, well-acted, with beautiful special affects. But I have to say that it was shocking to see the Captain of a Federation starship engage in a blatantly perfidious act in the second episode. The Federation has just come out on the losing end of a major battle with the Klingons. Captain Georgiou transports a photon torpedo into the torso of a dead Klingon, the lead Klingon ship retrieves the dead Klingon for burial, and… boom, the Klingon ship is disabled, with hundreds if not thousands dead.

As I have explained in a scholarly article, it is perfidious to use a booby-trap in a manner that violates the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. Art. 2(4) of the Protocol defines a booby-trap as “any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.” And Art. 7(1)(b) specifically provides that “it is prohibited in all circumstances to use booby-traps and other devices which are in any way attached to or associated with… sick, wounded or dead persons.” Captain Georgiou’s use of a booby-trapped dead Klingon to disable the Klingon ship was thus unequivocally perfidious.

The Star Trek universe always presents the Federation as the height of legal and moral rectitude. At least for one episode of Star Trek: Discovery, that was not the case.

A Farewell Note from Professor M. Cherif Bassiouni

by Julian Ku

As most of our readers know, Professor M. Cherif Bassiouni, a leading figure in the creation of the field of international criminal law, passed away yesterday at the age of 79. Professor Bassiouni had a large email list of friends and acquaintances, and his email account sent out one last posthumous message last night. We are posting it here for those of you who did not receive it. Please feel free to leave any notes and comments below on your memories of Professor Bassiouni or how his work affected you. 

Oona Hathaway and Scott Shapiro’s New Book “The Internationalists”

by Deborah Pearlstein

I have a review up at the Washington Post. A great read.

If President Trump Ends the Iran Deal, Can He Trigger the Security Council Snapback?

by Jean Galbraith

[Jean Galbraith is an Assistant Professor of Law at the University of Pennsylvania Law School]

President Trump has reportedly made a decision about whether or not to end the Iran deal – although he won’t yet say what he’s decided.  The Iran deal, more formally known as the Joint Comprehensive Plan of Action (JCPOA), is a political commitment rather than an agreement that is binding as a matter of international law.  President Trump can thus abandon the Iran deal without violating international law, although there will be plenty of other repercussions from such a step.

But abandonment will nonetheless raise at least one interesting legal question.  If the United States ends the Iran deal, can it thereby trigger the re-imposition of Security Council sanctions against Iran?

First, a bit of background (discussed more here).  Prior to the JCPOA, the Security Council had imposed various sanctions against Iran – sanctions which all countries were legally obligated to enact.  The core bargain in the Iran deal involved the lifting of sanctions, including these Security Council sanctions, in exchange for Iran’s commitments not to develop nuclear weapons and its acceptance of a monitoring regime.  But what would happen if Iran failed to honor its commitments?  In that case, would there be the votes on the Security Council to re-impose sanctions or instead might Russia or China veto such a resolution?  In order to address this concern, negotiators included innovative provisions in the JCPOA and in Security Council Resolution 2231, which was passed in July of 2015 to help implement the JCPOA.  These provisions have been referred to as the “snapback” provisions, and I have called them “trigger termination” provisions.

Summarizing a bit, Resolution 2231 provided that the pre-existing Security Council resolutions imposing sanctions on Iran are terminated, but they can be reinstated at any time during the next 10 years by any single P5 country (including the United States) or by Germany, under certain conditions.  Specifically, the country seeking reinstatement must notify the Security Council “of an issue that [it] believes constitutes significant non-performance of commitments under the JCPOA.”  If the Security Council does not pass any resolutions on this issue in the 30 days following notification, then the prior resolutions imposing sanctions are automatically reinstated.  These resolutions would not apply retroactively to contracts signed prior to their reinstatement.

If President Trump simply ends the Iran deal without trying to trigger the snapback provision, then he can only re-impose U.S. sanctions.  (He could try to persuade other countries to re-impose sanctions, but his ability to do that in practice will likely be fairly low.)  But what if instead of or in addition to announcing an “end” to the deal, President Trump states that Iran is not complying with the deal and attempts to trigger the snapback provision?  Will this be effective as a matter of law, even if President Trump’s claim of Iranian non-compliance looks like a pretext?

In a comment I wrote in the October 2015 issue of the American Journal of International Law (draft version here), I addressed the issue of a pretextual snapback.  I wrote as follows:

Resolution 2231’s trigger termination has some protections against arbitrar[y use], but not very strong ones.  The activator can be a single state – any one of the P5 [including the United States], Germany, or theoretically Iran.  The standard is that this state must ‘believe’ that there is ‘significant non-performance of commitments under the JCPOA.’  While ‘significant non-performance of commitments under the JCPOA’ is a reasonably clear criterion, the fact that the activator is only required to ‘believe’ this nonperformance to have occurred makes the standard a fairly flexible one.  But although flexible, it is not a grant of total discretion.  It must require a good faith belief in significant nonperformance, for otherwise it would be meaningless.  Indeed, if such a good faith belief is demonstrably absent, other states would have grounds for considering that the trigger termination has not been properly activated.  In that case, they could presumably treat Resolution 2231 as continuing in force and thereby have a legal basis for declining to reinstitute the prior sanctions.

If President Trump tries to trigger the snapback provision now, other countries will have reasonable grounds for disputing the legal effectiveness of such a trigger.  Of course, if the United States walks away from the Iran deal and re-imposes its own sanctions, Iran may then cease its implementation of the deal and ramp up its pursuit of nuclear weapons.  After that point, the United States will have good faith grounds to believe in Iran’s significant non-performance – but if Iranian non-compliance is clearly due to U.S. non-compliance, states might raise other arguments for doubting the legal ability of the United States to trigger the snapback.

In closing, my thanks to the editors of the Opinio Juris blog for letting me contribute this guest post.

The Drafters Knew Best: Corporate Liability and the Alien Tort Statute

by Heather Cohen

[Heather Cohen is a Legal & Policy Associate with the International Corporate Accountability Roundtable (ICAR), which harnesses the collective power of progressive organizations to push governments to create and enforce rules over corporations that promote human rights and reduce inequality.]

Can corporations be held accountable in the United States for violations of international law? This question is back before the Supreme Court of the United States (SCOTUS) this fall. On October 11, 2017, SCOTUS will hear oral arguments in Jesner v. Arab Bank, PLC on the question of whether corporations can be held liable under the Alien Tort Statute (ATS). In the case, the plaintiffs, victims of terrorism in Israel, allege that Arab Bank knowingly and willfully used its U.S. branch to provide financial services to the terrorist organizations that harmed them and their family members.

On August 21, Arab Bank filed its respondent brief in the proceedings, arguing that corporations should not be held liable for violations of international law under the ATS. This argument is inconsistent with the intent of the drafters of the Constitution who enacted the law, as well as with the legal interpretation that has followed.

An analysis of the language and historical context of the ATS demonstrates that the drafters of the Constitution intended for the ATS to be applied broadly to both individuals and legal persons, such as corporations. By placing no categorical limits on who can be sued under the legislation, it is clear that corporations can and should be held liable for violations of international law under the ATS.

The Enactment of the ATS and its Application to Legal Persons

The ATS was passed by the First Congress in 1789 to demonstrate the commitment of the new country to upholding the “law of nations,” thereby granting the United States legitimacy on the world stage. Its enactment was spurred by two incidents of offences against foreign ambassadors, but the law would also provide merchants plagued by piracy with a legal avenue to obtain remedy for the harm and losses suffered.

In passing the ATS, the First Congress chose not to limit who can be sued under the legislation:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

By choosing not to exclude any particular class of defendant, the ATS places no limitation on who can be sued. This is made even more clear by the contrasting restriction on who can sue, i.e. only “aliens.”

Historical context suggests that the First Congress intended the law to hold both legal persons as well as natural ones accountable. Courts have held legal persons liable for their abuses as far back as the 1600s. A number of piracy cases provide a clear example of this. For instance, in 1666, Thomas Skinner sued the East India Company for “robbing him of a ship and goods of great value.” The U.K. House of Lords ruled in favor of Mr. Skinner and held that the company owed him compensation. Even where piracy was not committed by corporations, courts have imputed corporate form to the ships themselves. Similarly, early American courts held that ships, as entities, could be ordered to pay damages for piracy. They reasoned that it made financial sense to direct judgment against a captured ship, which had substantial value, while pirates were unlikely to pay the compensation ordered.

These piracy cases demonstrate that courts during the era of the drafters of the Constitution were not only familiar with the concept of liability for legal persons, but that they regularly imposed it for violations of international law. In light of this familiarity, the fact that the First Congress did not limit the language of the ATS suggests that it intended for legal persons, such as corporations, to be sued under the statute.

A Modern Interpretation of the ATS

This interpretation has been supported by courts in subsequent decisions. For example, the D.C. Court of Appeals, in Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 48 (D.C. Cir. 2011), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013) held that “[t]he notion that corporations could be held liable for their torts… would NOT have been surprising to the First Congress that enacted the ATS” [emphasis added]. For decades, corporations have been sued under the ATS “without any indication that the issue [of their liability] was in controversy, whether in ruling that ATS cases could proceed or that they could not on other grounds.

Since its passage in 1789, the ATS has remained the law of the United States for more than two hundred years, without ever being limited, narrowed, or amended by Congress. In contrast, Congress has made it abundantly clear when it does mean to exclude a particular class of defendants, namely corporations, from liability. For instance, the Torture Victim Protection Act (TVPA) explicitly excludes suits against corporations. While one can argue that failure to amend the ATS does not necessarily mean acceptance, one cannot negate the fact that both times that the issue of corporate liability under the ATS has come before SCOTUS, the U.S. Government has argued in favor of it. The Government has made it clear that it supports the original words and meaning of the ATS.

Arab Bank’s Interpretation of the ATS

Faced with this evidence of the intent of the drafters of the Constitution, all Arab Bank can do is endeavor to chip away at little pieces of it by attempting to undermine the piracy cases raised by the petitioners and their amici. In Arab Bank’s brief, it attacks the British case by claiming that the East India Company functioned more like a sovereign than a corporation, and that the case was ultimately vacated by King Charles II.

While it is beyond the scope of this blog to offer an analysis of the differences between the East India Company and the modern day corporation, the broad power and scope of today’s multinational corporations suggest that these differences may be much smaller than they initially appear. For example, one often cited variance is the power the East India Company had to “operate its own courts and establish its own law.” However, modern corporations likewise operate their own courts through grievance mechanisms, such as that offered by Barrick Gold in response to sexual violence at its mine in Papua New Guinea. In any event, what is relevant is that “the East India Company was on any number of occasions judged by English courts to be a legal person subject to both English common and civil law.

Also problematic with Arab Bank’s critique of the British case is the weight that it places on the intervention of the monarchy, namely, the decision by King Charles II to vacate the case. This decision is simply emblematic of the politics and the central role the Monarch played at the time. Using this political dynamic to criticize the case is unpersuasive.

To undermine the American piracy cases, Arab Bank argues that a ship is not a corporation and that holding a ship liable for the acts committed by the people operating it is not equivalent to accepting the concept of corporate liability. However, this argument is purely a matter of semantics and ignores the very basic concept of corporate liability, which is to hold a legal entity liable for the acts of individuals operating within it. This is exactly what the court did when imposing liability on the ships in these piracy cases.

Conclusion

If SCOTUS rules that corporations cannot be held liable under the ATS, it will be overturning hundreds of years of legal tradition, as well as undermining the chosen words and understanding of the drafters of the Constitution. Such a ruling would similarly undercut the legal interpretation adopted by numerous courts and policymakers following the First Congress. Furthermore, Arab Bank’s arguments are not convincing and fail to undermine the evidence that the ATS was intended to apply to both legal and non-legal persons.

Will SCOTUS respect the wishes of the drafters of the Constitution by holding Arab Bank liable for providing financial services to terrorist organizations? Those of us who believe in the underlying principles of this Nation certainly hope so.

UK-Saudi Arabia Arms Trade before the High Court: Questions following the Judgment

by Riccardo Labianco

[Riccardo Labianco is a PhD candidate at SOAS, University of London. His research focuses on state-to-state military assistance in times of conflict.]

On 10th July 2017, the High Court of Justice (HCJ) delivered its decision regarding the choice of the Secretary of State for International Trade not to halt the transfers of arms between the UK and Saudi Arabia (SA). The Campaign Against Arms Trade (CAAT), the claimant, requested judicial review of that choice, in light of the violations of international humanitarian law (IHL) committed by SA in the conflict in Yemen which likely occurred through UK-manufactured arms and weapons. Eventually, the judges accepted the government’s arguments and dismissed the request for judicial review. This decision was based on the fact that the UK government was the only actor able to assess the absence of a clear risk of IHL violations that could be committed with the transferred arms, due to its inside knowledge of the Saudi administration and its engagement with it. As shown below, the absence of a clear risk of IHL violations must be assessed before authorising any arms export.

Two aspects of the judgment are analysed here. First, the HCJ’s interpretation of the “Consolidated Criteria for Arms Export”, a piece of EU legislation incorporated in the UK legal system. Second, the choice to consider the UK’s “privileged position” within the Saudi administration as an essential element for the lawfulness of the arms transfers.

Response from the EIC of the Journal of the History of International Law

by Kevin Jon Heller

[The following is a response from Anne Peters, the Editor-in-Chief of the Journal of the History of International Law]

Dear readers,

The JHIL received this letter and had agreed towards the authors in writing to publish it in the JHIL as soon as possible.

Publication in JHIL does not imply any agreement or endorsement by the editors or by the academic advisory board of the opinions expressed in an article.

The selection of articles for the journal occurs through double blind peer review on the basis of their academic quality. In the case of the article on the Jamestown Massacre, the editors were able to obtain only one peer review report.

The editor-in-chief acknowledges that there were flaws in the review process and apologizes for this.

The JHIL has recently amended the selection and review procedure in order to strengthen the process.

The new authors’ guidelines containing the description of the review process can be found on the Journal’s website.

Anne Peters