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International Law Ten Years Later — On the Ground and In the Academy

by Peter Spiro

You know you’ve reached a certain age when you start saying, “I remember when. . .”

Well, I remember when international law was considered a legal chimera and an academic backwater. Policymakers would take it into account in only a limited set of circumstances, and then usually only where it was consistent with other agendas. In law schools it was ghettoized: schools understood they needed one member of the faculty to cover international law courses, but at many it was only one. Among the international relations theorists, international law was the target of ridicule (“epiphenomenal,” delivered with a heavy dollop of condescension).

Things had begun to change around the time that I joined the blog in 2006. One sign of change was a new wave of entry-level international law faculty, among whom Chris, Peggy, and Julian prominently counted. International law felt like the academic equivalent of a start-up, and Opinio Juris was there, helping to build the community of international law academics (something reflected in our impressive list of alumni guest contributors). There was a time when it was required reading among IL scholars. The blog helped demonstrate international law’s relevance on a day-in, day-out basis.

In those early years, I felt like blogging here was part of that cause – to prove the reality of international law against a stolid cohort of non-believers, both in and outside of the academy. It wasn’t advocacy in the traditional sense; international law doesn’t always point to progressive (or otherwise “correct”) results. (In any case, one of OJ’s virtues is its ideological diversity.) More in the way of advocacy for the discipline, at a point at which its respectability was still contested.

Today, there’s no longer any real need to engage in that kind of promotional activity. I don’t feel like I have to do the sort of cheerleading that I engaged in my early years here. International law has left its Ice Age behind. It is now arguably the center of the action, both on the ground and in the academy, as it comes to touch every area of law. It is in its take-off phase. Foundations are being built that will have consequences for generations to come. There’s still a tremendous level of instability. Some institutions now in their infancy will crash and burn. But others will survive. Things happening today will be studied by future generations, even if they aren’t necessarily very high-profile in the contemporary imagination. Some institution-builders anonymously at work today will be celebrated only long after they are dead.

The accelerated growth isn’t all upside, even leaving aside the inevitable missteps and false starts that are part of any take-off. In the “be careful what you wish for” department, international law has grown to the point where it’s no longer a unified field. It’s a lot of fields that are starting to go their own way. The number of international law generalists is dwindling; it’s impossible to keep up with developments in fields as diverse as those in domestic law. The level of specialization now makes it tough to talk across specialties. It’s like your first cousins — you have a recent common ancestor and probably spent some time together in your youth, but may more recently have drifted apart. The next generation will likely as not be strangers.

That’s presents a challenge for a blog that remains generalist in orientation. There are times when the debates in the weeds aren’t worth following if it’s not your particular area. Appealing to the larger community gets more difficult.

I’m also old enough to remember when blogging was new (not so old!). As Julian points out, it has changed – much more serious now, less of the breezy sort of pointers and back-and-forth chatter, much of which has moved to Twitter (which itself has started to get more serious). The emergence of other international law-oriented blogs (Just Security and Lawfare in particular) is a testament to that seriousness, as well as another data point evidencing the robust state of the field. In any case it’s been fun to be a part of a project that has seen these things through.

Celebrating Ten Years of Opinio Juris (!)

by Chris Borgen

It may be hard to believe, but this week Opinio Juris is celebrating its tenth anniversary. In a placeholder post prior to our commencing regular blogging, Peggy, Julian, and I had explained:

Our modest goal is to share with our readers a variety of perspectives on the role of international law in the U.S. and around the globe and to stimulate discussion within the community of international law scholars and practitioners. We will include useful links to other important on-line sources of information on international law.

We started blogging on January 10, 2005. On that first day we bantered with each other about UN reform (see 1, 2, 3), a topic that would come up time and again in the following years. Rereading some of my early posts makes me smile… and wince.  Although we were making it up as we went along, we were finding our voice. Ten years ago there was barely a blogosphere, let alone a legal blogosphere.

We knew we wanted this site to be a forum where people with a broad spectrum of views could discuss, argue, and analyze a wide range of topics related to international law. But if you want an interesting and informative conversation, then you better have interesting and informed discussants and editors. And so over the years Roger, Kevin, Duncan, Peter, Ken, Deborah, Kristen, and Jens joined the masthead, and An and Jessica joined as Assistant Editors.

However, the real reason this site has thrived is the thousands of people in the Opinio Juris community who are not on the masthead.  Each person who has submitted a guest post, participated in a symposium, taken the time to read a post, or added a comment to a post has made Opinio Juris the ongoing discussion that we hoped it would be.

Day in, day out, for a decade we have all participated in a conversation that has ranged over important topics, humorous observations, technical analyses, and politically fractious debates. It is a discussion that includes anyone who has taken a moment to read or write anything on the site. Thank you.

In our first week of blogging we had perhaps a couple of hundred visits (and I think a large number of those hits came from repeated visits by our relatives). But the conversation has grown not only through our expanding masthead but with hundreds of guest bloggers, over 9,000 posts,and nearly 26,000 comments.  We have tens of thousands of readers each month and a total of over five million visits (according to our platform’s counter).

Again, thank you. We are constantly learning from our co-bloggers, our guest bloggers, and commenters. These last ten years have brought much more than we ever expected and we are very grateful.

In the coming days we will post about the past ten years of international law as well as where it may be going. We will also point out some memorable moments from the first decade of Opinio Juris.

You can also follow us on Twitter, @OpinioJuris (we will use the hashtag #OJ10 for topics related to the anniversary).

We look forward to our continuing conversation…

 

 

Congratulations to Dean Andrew Guzman

by Duncan Hollis

I’m pleased to note that Andrew Guzman is leaving Berkeley Law to become Dean of USC’s Gould School of Law (see here for the USC announcement, and here for Berkeley’s take).

Andrew’s a renowned scholar of international law, with major works on international trade, regulation, investment and public international law, including some seminal work on using rationale choice theory to explain the international legal order.  I’m deeply indebted to his scholarship on bilateral investment treaties (this one in particular) and soft law for influencing my own work.  Plus, to top it all off, he’s found time over the years to guest blog for us a few times.

Congratulations to Andrew — it’ll be good to have another international lawyer in a major leadership position in U.S. legal education.

Next Week: The Tenth Anniversary of Opinio Juris!

by Chris Borgen

Just a quick heads-up that tomorrow, January 10th, is the Tenth Anniversary of Opinio Juris!

All next week we will have posts looking back on the first decade of the blog as well as on the decade in international law. And we will also have posts looking forward…

Thank you to everyone who has taken time to read or write anything posted on this forum. Your engagement and contributions is what transforms this from a “blog” into a conversation and a community.

So next week we’ll celebrate not the past, so much as our ongoing discussion!

Cliff Sloan on Closing Gitmo

by Deborah Pearlstein

In case you missed it Monday, departing U.S. State Department special envoy for closing Guantanamo had a sharp op-ed in the N.Y. Times, marking the administration’s recent successes at moving detainees out of the prison and urging that further progress be made. Among other things, Sloan highlights several “fundamental misconceptions” he believes are behind continuing opposition in Congress and elsewhere to steps necessary to close the facility, particularly the misconceptions that the recidivism rate is high and that all of the detainees there pose a continuing threat.

Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.) … Of the detainees transferred during this administration, more than 90 percent have not been suspected, much less confirmed, of committing any hostile activities after their release. The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.

In light of these statistics, those who argue against continuing transfers are indeed, as Sloan puts it, “constrained by an overabundance of caution.” As I’ve noted here before, and described in detail in a piece just out in the Cardozo Law Review, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end. Thanks to Sloan’s efforts and others, other countries are beginning to welcome former Gitmo detainees. But we have also returned prisoners to homelands still suffering violent political instability, particularly the post-World War European nations whose economic, political, and state security systems were essentially non-functional. We likewise returned prisoners who still harbored violent intentions toward the United States; in World War II, among the first prisoners we released were those Nazis whose enmity was “most hardened” against us (principally because they were not good sources of prisoner labor). And we released prisoners who had ideological allies with whom they could reaffiliate post-detention; we returned thousands of communist prisoners to communist nations at the height of a half-century long war that was “hot” (in Korea and against non-state groups in Vietnam) almost as often as it was cold.

In all of these conflicts, we calculated that any short term tactical risk we might bear by the release of a few individuals was outweighed by the long term strategic benefit to the United States of acting, and being seen to act, in a manner consistent with prevailing law. Sloan notes: “As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, ‘The greatest single action the United States can take to fight terrorism is to close Guantánamo.’” The strategic benefits here are clear. It’s as good a time as any to recall a little history and seize them.

Events and Announcements: December 21, 2014

by An Hertogen

Events

  • For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (University of Frankfurt), Stephan Schill (Max Planck Institute Heidelberg), and Christian J. Tams (University of Glasgow) – has been a forum for the discussion of conceptual issues of international investment law. The next workshop, to be held March 13-14, 2015, will explore the role of history in the interpretation and application of international investment law. It will cover a wide range of issues, from debates about investment law’s imperial origins to the drafting history of the World Bank’s ICSID Convention. The program is available here. As in previous years, the workshop will bring together academics and practitioners and provide them with a forum for open and frank exchanges. To register, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt (S [dot] Schimpf [at] jur [dot] uni-frankfurt.de) by February 28, 2015.

Calls for Papers

  • A call for papers has been issued for the International Criminal Justice Stream at the Socio-Legal Studies Association Annual Conference which takes place at the University of Warwick from March 31 – April 2, 2015. Submissions are invited on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would also be welcomed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Abstracts may only be submitted via the Easy Chair system, must be no longer than 300 words, include your title, name and institutional affiliation and your email address for correspondence. Successful papers will be published in a symposium; details of which will be available shortly. For an informal discussion please email the convenor, Anna Marie Brennan at Anna [dot] Marie [dot] Brennan [at] liverpool [dot] ac [dot] uk. The deadline for the submissions is Monday January 19, 2015.
  • The Graduate Institute in Geneva is convening a conference entitled ‘International Law and Time’ to take place in Geneva, Switzerland, from June 12–13, 2015, to explore the phenomena of time and change in international law. Abstracts are due by February 15, 2015. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Guest Post: Has the US just called for unilateral interpretation of multilateral obligations?

by Rick Lines and Damon Barrett

[Dr Rick Lines and Damon Barrett are the Chair and Director of the International Centre on Human Rights and Drug Policy, University of Essex]

These are interesting times for drug law reform, which, as it gathers pace, is asking important questions of international law. A UN General Assembly Special Session on Drugs is set for 2016 just as national reforms are challenging international treaties that form the bedrock of a global prohibition regime that has dominated since the turn of the twentieth century. States parties to the three UN drug control conventions must now confront the legal and political dilemmas this creates. This is the situation in which the US now finds itself following cannabis reforms in various states that are at odds with these treaties. The State Department has issued its official position in this regard, one that stretches and boundaries of interpretation and raises other serious questions for international law.

In an October statement Ambassador William Brownfield set out that position in the form of the ‘four pillar’ approach the United States will now follow in matters of international drug control. While the four pillars, set out below, have prompted much discussion and debate among those working on drug policy issues, attention among international lawyers has been rare. This is something of an important gap given the implications of what the US suggests:

  1. Respect the integrity of the existing UN drug control conventions.
  2. Accept flexible interpretation of those conventions.
  3. Tolerate different national drug policies…[and] accept the fact that some countries will have very strict drug approaches; other countries will legalise entire categories of drugs.
  4. Combat and resist criminal organisations, rather than punishing individual drug users

Internationally, the four pillars have emerged in the context of efforts, led primarily by Latin American States, to open discussions on the future of the international drug control regime, and look at alternatives to the current and destructive prohibitionist paradigm.  Domestically, it comes in the context of successful referenda to legally regulate cannabis in several US states.

Both of these are welcome developments. The international drug regime is long overdue for reform, and the cannabis referenda will produce many positive criminal justice, health and social outcomes in those US states adopting them. However, domestic cannabis law reform places the United States in a compromised position within the coming debates on the future shape of the international drug control regime.

(more…)

16 things to know about UN Sanctions

by Kristen Boon

The UN’s Department of Political Affairs recently published this list of “13 things to know about UN sanctions.”  If you scroll down on the link above, you’ll also see some great sanctions graphics.

United Nations Sanctions Primer

1. Since the creation of the United Nations, the Security Council has established 25 sanctions regimes. They have been used to support conflict resolution efforts, prevent the proliferation of nuclear and other weapons of mass destruction, and counter terrorism.

2. “UN sanctions have proved to be an effective complement to other Security Council instruments and actions. We know it is not perfect, but there is also no doubt that it works,” Under-Secretary-General Jeffrey Feltman told the 15-Member of the Council in the 25 November briefing.

3. There are currently 15 sanction regimes, the highest number in the history of the Organization.

4. UN sanctions are fairly economical. The total cost of supporting the 15 sanctions regimes is less than $30 million per year.

5. The first United Nations sanctions regime was established in 1966 when the Security Council imposed sanctions on Southern Rhodesia. By a vote of 11 to 0 – with four abstentions – the Council declared an international embargo on 90 per cent of Rhodesia’s exports, forbade the UN’s then 122 Member States (there are now 193) to sell oil, arms, motor vehicles or airplanes to Rhodesia.

6. The most recent sanctions were applied against Yemen this November. The UN Council ordered a freeze of all assets and a global travel ban on Saleh, the rebel group’s military commander, Abd al-Khaliq al-Huthi, and the Houthi’s second-in-command, Abdullah Yahya al Hakim.

7. In 1999, the Council established its first sanctions monitoring group on Angola.

8. There are now 11 monitoring groups, teams and panels with a total of 66 experts working in support of the Security Council and its sanctions committees.

9. Expert panels regularly cooperate with international organizations, such as INTERPOL, the International Civil Aviation Organization (ICAO), the International Air Transport Association (IATA) on issues related to travel bans, and with national authorities and the private sector on asset freezes.

10. DPA underscored in today’s briefing that UN sanctions are meant to be supportive not punitive. They are not meant to cripple states but to help them overcome instability, address massive human rights violations, curb illegal smuggling, and counter terrorism.

11. The DPA’s Security Council Affairs Division provides substantive and administrative support to the sanctions committees and expert panels; as well as engages the wider UN system in support of UN sanctions.

12. This year, among its other activities on sanctions, DPA let two missions on sanctions issues, one on the partial lifting of the arms embargo on Somalia and another on the termination of sanctions in Liberia. The aim was to strengthen these countries’ understanding of what the Council expects on sanctions issues and to enhance UN coordination on how the Organization can support implementation in these countries.

13. In 2006, the Secretary-General outlined four elements to improve the fairness and transparency of the sanctions procedures: the right to be informed; the right to be heard; the right to be reviewed by an affective review mechanism; and the need for periodic reviews, especially regarding the freezing of assets.

Let me add three things of my own:

14.   A recent UN high level review on sanctions took place between May – October 2014 (thus the reference to the 2006 document in #13 is a bit dated).  The background paper on the High Level Review website is well worth reading, as are the reports from the 3 working groups. See for example this briefing on Working Group 1, that included Security Council members.

15.   Technical assistance remains an important but controversial topic.   Australia proposed a resolution on technical assistance in November, 2014 but due to opposition by Russia, China and Argentina, the resolution was not put to a vote.   The basis of the opposition, as I understood it from statements during the Security Council session, was largely due to concern over an expansion of the Secretariat’s policy making role.   To put it differently, more technical assistance managed by the Secretariat might result in less Security Council authority.  Nonetheless, implementation gaps in sanctions remain a serious bar to sanctions effectiveness.  As sanctions become more sophisticated, so too do techniques of evasion, and for UN sanctions to be effective, there is no question that common ground will need to be identified to assist states, particularly, but not exclusively those states in whose territories individual and entities are targeted, neighboring states, and regional hegemons.

16.   There is growing support to expand the Ombudsperson’s jurisdiction to other sanctions regimes.  Currently, her office reviews delisting requests from the 1267 Al Qaida regime.   Individuals and entities listed under other regimes only have access to a focal point, who has far less powers.  If these proposals continue to gain momentum, there will be a significant improvement to the due process procedures noted above.  See an overview of developments in this debate here.

Do you have anything else to add to the list?  Please use the comments box to chime in.

Is the “Norm” Against Torture Dying (At Least in the U.S.)?

by Julian Ku

Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that “norms” against torture and assassination have died in the United States in the aftermath of the 9/11 attacks.  Kutz is not writing to support the CIA interrogation program or the US government’s use of assassination, but he does think that, as a descriptive matter, the rules against torture and assassination may be dead or dying in the U.S. He suggests that democracies have a limited ability to maintain commitment to these kinds of norms because of a democracy’s “sensitivity” to public mobilization.  Eric Posner has a typically interesting response to Kutz here.

I don’t know if the norm against torture is dead in the U.S., but I will say that the U.S. public appears completely unmoved by the release of the U.S. Senate Intelligence Committee’s very critical report on the CIA interrogation program.  A raft of new polls shows that the U.S. public’s support for an absolute ban on torture remains relatively low, while a majority, or perhaps a strong plurality, support the actual CIA program and methods that was so harshly criticized by the Senate Report.  See the WSJ/NBC poll here.  See the Pew Research Survey poll here.  We can quibble about the details, but those post-Senate Report polls show almost no change from pre-Senate Report polls.

I emphasize again that the U.S. public’s support for the CIA program does not in any way justify the legality or the morality of the program.  But the public’s failure to support a ban on torture, especially the absolute ban on torture embedded in international law and U.S. law, cannot be ignored either.  It suggests there is little chance of a prosecution over the CIA program, and it really poses a tough challenge for international lawyers. What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?  As Kutz’s paper suggests, this whole episode suggests widely accepted international law norms can be fragile, even (or especially) in liberal democracies.

 

Guest Post: Protecting Schools and Universities from Military Use

by Bede Sheppard

[Bede Sheppard is the deputy children’s rights director at Human Rights Watch, based in Barcelona]

At an event at the United Nations in Geneva this morning, the ambassadors of Norway and Argentina unveiled a set of six new “Guidelines” aimed at better protecting schools and universities from being used for military purposes during times of armed conflict. They are intended to respond to the practice of government forces and non-state armed groups converting schools and universities into bases or barracks, or using them as firing positions or places to cache weapons and ammunition.

This practice endangers students and teachers by turning their schools into targets for enemy attack. Students and teachers have been injured and killed in such attacks. It also exposes students to sexual violence, forced labor, and forced recruitment by the soldiers sharing their schools. Students must either stay at home and interrupt their education, or study alongside armed fighters while potentially in the line of fire.

The Guidelines urge all parties to armed conflict to refrain from using schools or universities for any purpose in support of the military effort, but state specifically that “functioning schools” should not be used, even if it is outside of normal school hours, or during the weekend or on school holidays. Schools that have been abandoned or evacuated because of the danger presented by the armed conflict should also not be used, except in circumstances in which fighting forces are presented with no viable alternative, and only as long as no choice is possible between such use of a school and another feasible method for obtaining a similar military advantage. The Guidelines reiterate the prohibition on destroying a school as a measure intended to deprive opposing parties of the ability to use them in the future, and provide guidance on how to respond if enemy forces are using a school, or if military forces are the only option for providing essential security in response to threats of an attack on a school.

Concerns about the negative consequences of where soldiers are accommodated—and resulting efforts to regulate their billeting—date back a long time. (more…)

Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal

by Julian Ku

The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea.  It is a little unclear exactly what Vietnam has filed.  According to its Ministry of Foreign Affairs website:

In response to the question on Viet Nam’s position regarding the South China Sea Arbitration case, spokesperson of the Ministry of Foreign Affairs of Viet Nam Le Hai Binh affirmed that:
“To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Viet Nam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam.”/.

According to the South China Morning Post, the Vietnamese submission has three points.

1) It supports the Philippines on the question of the tribunal’s jurisdiction.
2) It asks the tribunal to give due regard to Vietnam’s legal rights and interests
3) It rejects the legality of the Chinese “nine-dash line”.

I think this filing has much more political than legal significance.  As a legal matter, I don’t think there is any procedure in the UNCLOS dispute settlement system for third-party interventions, so I think this is really just like sending a letter to the arbitral tribunal.  It has no legal significance, and the tribunal has no obligation to consider it. But of course, it has the right to do so if it believes it is relevant to the dispute before it.

On the other hand, this is a political victory for the Philippines, since it means that Vietnam has tacitly agreed to join a common front against China.  I remain skeptical (as I wrote yesterday) of the Philippines’ legal strategy, even with this support from Vietnam, because China has the same arguments against Vietnam and it will not likely change course.   The next question: Will Vietnam file its own legal claim and form its own arbitral tribunal? That might push China into a different response, but I would still bet against it.

The Question of Prosecution

by Deborah Pearlstein

The 525-page executive summary of the torture report released this week, and the debate that has followed thus far, is in many respects so dense it is a struggle just to decide where to begin engaging. Having spent years of my life as a human rights lawyer working on precisely these issues – preparing reports on secret detentions, and indeed detainee deaths in U.S. custody, among other things – and having spent plenty of days in shock and horror at what we learned then, I had come to feel almost inured to new revelations. Power drill to the head? We’d seen that earlier. Detainee died of hypothermia having been left mostly naked in his dungeon-like cell? Knew that too. But beyond the important new detail about our treatment of detainees the report offers, it is for me the facts the report reveals about the level of fundamental professional incompetence giving rise to this program, and the extent of the CIA’s efforts to keep information about it from other parts of our own government – including the director of the FBI and two U.S. secretaries of state – that leaves me newly in awe. Among the many telling (and I believe unrefuted) passages of incompetence (p. 11 of the Report): “Numerous CIA officers had serious documented personal and professional problems – including histories of violence and records of abusive treatment of others- that should have called into question their suitability to participate” in the interrogation and detention program. More, the private psychologists CIA hired to develop, operate and assess its interrogation program lacked any “experience as an interrogator, knowledge of Al Qaida, background in counterterrorism, or any relevant cultural or linguistic expertise.” Even as I continue to work through the text of the report, it is clear that it should be required reading for all Americans.

For now, though, I want to begin with one of the questions the report raises that I find much more difficult to assess: whether and how those responsible for the acts of torture described in the report should be held accountable. (more…)