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Selecting the New UN Secretary General

by Kristen Boon

With the end of Ban Ki-Moon’s term on the horizon, discussions about the next UN Secretary General, and more importantly how that person should be chosen, have moved front and center. A joint letter by the Presidents of the GA and Security Council was released on December 15, which sets forth a slightly new process.  It states:  “[The Presidents] will offer candidates opportunities for informal dialogues or meetings with the members of their respective bodies, while noting that any such interaction will be without prejudice to those who do not participate.”   These dialogues would take place before July 2016.

As the New York Times reported yesterday the letter remains vague on 2 points. First, on the question of whether a woman should lead the organization for the first time in 70 years it encourages nations to nominate “women as well as men” … second, on the tradition whereby each region gets a shot at the top job (with Eastern Europe being next in line) the language gave a nod to Russia’s concerns that “we note the regional diversity in the selection of previous secretaries general.”  Note the reference to past practices:  previous secretaries general.

Differences of opinion between the UK and Russia on the process held up the finalization of this letter for some time. The backstory can be found here.

This letter was issued pursuant to GA resolution 69/321 of 11 September 2015 provided a mandate for the GA on the issue, and “Requested the Presidents of the General Assembly and of the Security Council to start the process of soliciting candidates for the position of Secretary-General through a joint letter; to jointly circulate on an ongoing basis the names of individuals that have been submitted for consideration as candidates; and decided to conduct informal dialogues or meetings with candidates, without prejudice to any candidate who does not participate.”

To date, the campaign 1 for 7 billion reports 27 confirmed or prospective candidates including Angela Merkel, Helen Clark, and Danilo Turk. (Click on the candidates tab for more information).  General background on the efforts to change the appointments process is available here and here.

Specific Direction Again

by Jens David Ohlin

As already noted by others (including Kevin Heller, Marko Milanovic, and Dov Jacobs), the ICTY Appeals Chamber has overturned the acquittals of Jovica Stanisic and Franko Simatovic and remanded their case back to the Trial Chamber for the holding of a second trial. I want to discuss two issues pertaining to this decision.

The first pertains to the Specific Direction requirement for remote aiding and abetting of an organization that commits international crimes (yes, Specific Direction, again). There has been a long-standing dispute within the ICTY over aiding and abetting liability and whether Specific Direction is required by customary international law. The Perisic case said it was required, but then a differently composed Appeals Chamber disagreed in Sainovic. Now, finally, the Appeals Chamber has stated once again that the Specific Direction requirement is illusory (and hence the do-over for the Stanisic and Simatovic trial).

The unfortunate thing about the Appeals Chamber decision from Tuesday is how little we get in terms of actual legal rationale for the decision. Although the decision is almost 100 pages, only a few pages deal with specific direction. Of those, most are a summary of the positions of the parties in the case regarding specific direction. As for the court’s analysis, it is limited to one paragraph. And the argument in the paragraph itself does not touch the substance of the legal issue at all, and merely states that a previous appeals chamber had rejected the specific direction requirement, so the requirement does not apply. There is no analysis of how to understand precedent when there are contrary Appeals Chamber holdings, and even more distressingly no discussion of the underlying merits of the specific direction question, i.e. actual reasons why specific direction is not a part of the customary international law of aiding and abetting. All of this is left to the dissenting opinions. The court spends almost as much time and space devoted to the pressing legal issue of whether the defendant’s arguments should be rejected because the prosecution complained that the defendants failed to submit photocopies of the law review articles that they cited in their brief.

These facts highlight something that Heller, Milanovic, and Jacobs have already noted: The result was preordained from the beginning, given the composition of the Appeals Chamber and the number of judges who had previously (in the minority) opined that specific direction was not a formal requirement of customary international law. Incidentally, my complaint here is more about the lack of substantive engagement with the underlying issue, and not the result. Although I continue to think about the issue, I have been somewhat skeptical of specific direction for two reasons. First, the requirement seems to me a heightened mens rea standard akin to purpose, and not an actus reus requirement. Second, even if it is a heightened mens rea standard, it seems to me to be a house of cards built upon a strained reading of three words that were originally drafted, as dicta, in the original Tadic opinion, and which do not support the specific direction requirement. That being said, I do concede that there is evidence on both sides of the knowledge vs. purpose debate for aiding and betting under international law.

The second issue is that this case highlights, once again, a substantial defect in the ICTY’s procedural framework: the lack of an en banc hearing mechanism for the Appeals Chamber. Either all judges of the Appeals Chamber should hear all appeals (rather than use panels), or if panels are used, there should be an opportunity, in rare circumstances, to petition the Appeals Chamber for a second appeal to the entire Appeals Chamber sitting en banc. This would ensure that the decisions of the case are not based on the vagaries of the panel’s composition, which seems both arbitrary and unstable.  Future ad hoc tribunals (if there are any), should avoid this structural mechanism.

One final point: Stanisic and Simatovic attended the hearing in person, and therefore were detained and placed in custody in The Hague. I find this surprising (their voluntary appearance, not their detention). Anyone have any information on this decision? If they had stayed in Serbia, would they have voluntarily complied with the new arrest order or would they have run?  Would the government in Serbia have been willing and/or able to arrest them quickly if necessary?  Of course, these are all hypothetical and somewhat moot questions at this point.

A Note About Commenting on Opinio Juris

by Chris Borgen

This is a reminder to all readers and contributors concerning Opinio Juris’ policy regarding comments and posts. The “About Opinio Juris” page explains that:

We encourage civil and respectful dialogue among our bloggers, readers (who may post comments), and guest-bloggers. Our goal is to be both informative and thought-provoking by fostering vigorous intellectual engagement without vitriol. The marketplace of ideas is what we make of it.

[Emphasis added.]

Consequently, Opinio Juris maintains the right to edit or delete any comments that in our view does not meet the forum’s guidelines. This has been exceedingly rare.

One of the strengths of Opinio Juris is that our writers (both the masthead bloggers and our guest writers), commentors, and readers have a wide range of views. That breadth of perspective enriches the conversation. Please be respectful and constructive in your comments.

China Launches Op-Ed Rebuttal to Philippines’ Arbitration Case

by Julian Ku

The UNCLOS Arbitral Tribunal formed to consider the dispute between the Philippines and China gave China until January 1 to file a response to the arguments made by the Philippines at its most recent merits hearing.  China had not showed up at any of the hearings, nor has it submitted any official written arguments to the Tribunal.   I don’t know if China will file any submissions (don’t hold your breath), but its state-run flagship The People’s Daily has launched an op-ed fusillade this week attacking the Philippines. Perhaps, this is China’s response to the arguments made at the arbitral hearing.

The first editorial, “Grandstanding Cannot Cover Up Illegal Moves”, is focused on vilifying the Philippines’ for bringing this arbitration, and the remarks of its foreign minister Albert F. del Rosario. The criticism is mostly non-legal, accusing Mr. del Rosario of bad faith, speaking untruths, and being an all-around bad guy.  But the oped does contain the germ of a legal argument justifying China’s defiance of the UNCLOS tribunal:

State sovereignty is a core principle in contemporary international law. No force is above a sovereign state. No country, organization or individual could expect China to stand by and allow its interests to be harmed. Here is a piece of advice for people like Mr. del Rosario: Don’t misread the situation. The Chinese government and people are adamant about safeguarding China’s rights and interests in the South China Sea. All calculating moves against that would end up in failure.

The second editorial, China’s Sovereignty over the South China Sea Islands Brooks No Denial, offers more of a legal and factual argument.  Interestingly, the editorial relies heavily on the legal force of the 1943 Cairo Declaration and the 1945 Potsdam Declaration as the basis for China’s South China Sea claims over the disputed Spratly/Nansha Islands.  The theory here is that the Spratly/Nansha islands belonged to China, and that Japan forcibly occupied them during WWII.  Cairo and Potsdam required Japan to return all “stolen” territories, ergo, the South China Sea islands go back to China.

The Philippines (apparently) argued at the merits hearing that the Nansha Islands were “terra nullius” and were not included in the “stolen” territories that Japan had to return to China.  Moreover, the Philippines argued that the Cairo and Potsdam Declarations were not legally binding.

China responds with a factual claim (China has always had sovereignty over the islands) as well as legal claim (the Cairo and Potsdam Declarations are legally binding). This latter argument is not precisely accurate, although it is true that Japan promised to comply with Potsdam in its surrender.  But none of this changes the fact that neither Cairo nor Potsdam say anything about the Spratlys/Nansha specifically, and seem a weak legal basis for China’s claims to those islands.

In any event, the editorial is largely rhetorical rather than legal. It concludes by rallying the Chinese people against mysterious international forces threatening their sovereignty:

[T]he determination of the Chinese people to safeguard its territorial integrity is as firm as a rock. Only the Chinese people have the final say when it comes to China’s territory. Any attempt to negate China’s sovereignty, rights and interests through a so-called “arbitration award” will be nothing but wishful thinking, just like flowers in a mirror and reflection of the moon in water. By going back on its own words and confusing the concepts for the purpose of territorial expansion, the Philippines will only end up bringing disgrace on itself.

Gotta love the metaphors, although I doubt very much the Arbitral Tribunal will be in any way moved by them.

Is the Paris Agreement Historic?

by Daniel Bodansky

Paris

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the sixth in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

COP-21 adopted the Paris Agreement (.pdf) at around 7:30 pm on Saturday night, a remarkably punctual conclusion by COP standards. There was a bit of drama at the end, over a “should” vs. “shall” in one of the provisions (more on that tomorrow), and the final plenary waited for more than an hour while the French presidency, the United States and Brazil tried to work it out. But there was none of the chaos and grandstanding that usually characterizes the end game of climate conferences.

How should we evaluate the Paris Agreement? Certainly, it satisfied the rather modest criteria of success I identified before the conference began. It is a solid outcome, and the French team that led the conference and the negotiators who worked round the clock to finalize the agreement can feel proud of their achievement. Compared to past climate conferences, the Paris conference is definitely cause for celebration.

But is the Paris Agreement historic, as speaker after speaker last night declared? If we focus only on the agreement’s relatively spare contents, it seems hardly the stuff of history. Yes, the agreement does some positive things: it requires countries to put forward “nationally determined contributions” (NDCs) – that is, pledges about what they will do to reduce emissions; it provides for transparency and review, to hold countries accountable for what they say; and it provides for a global stocktaking every 5 years and a process to update NDCs, in order to drive greater ambition over time. But one shouldn’t oversell these results. The NDCs put forward pre-Paris fall far short of putting the world on a pathway to holding temperature change to below 2° C. Countries’ NDCs are not legally binding. There is little new in the agreement on adaptation and finance. And the provisions regarding transparency and review are skeletal, and will need to be fleshed out by subsequent decisions.

Still, despite its relatively modest substance, the Paris Agreement is potentially pivotal, because it completes the paradigm shift from the bifurcated world of the Kyoto Protocol, which rigidly distinguished between “Annex I” and “non-Annex I” countries, to the common global framework that began to emerge in the Copenhagen Accord. The world has changed a great deal from 1992, when the UN Framework Convention on Climate Change was adopted and Annex I defined. Many of the world’s richest countries, like Singapore and Qatar, are still considered “developing” under the Convention’s outdated annexes. And, more importantly, most of the growth in greenhouse gas emissions over the next century will occur in “developing” countries. So reorienting the UN climate change regime to make it truly global is essential to solving the climate change problem.

Getting there wasn’t easy. Many developing countries were extremely reluctant to give up the deal they had gotten in Kyoto. That’s one of the reasons why the negotiations in Paris were so difficult. (Other reasons include the reluctance of donor countries to provide more finance and the need for the US to avoid commitments that might require Senate or Congressional approval.) In order to achieve a common approach, the US and other western countries had to accept somewhat limited provisions on transparency and updating. But this was a small price to pay, if the Paris agreement finally puts the climate regime on a broad-based, durable footing, which can be progressively strengthened over time. If that happens – and, of course, only time will tell – then the Paris agreement will merit the accolades that were showered on it today.

Transitional Justice and Judicial Activism Symposium

by Kristen Boon

The focus of Ruti’s article is the developing primary norm of the “right to accountability”, which derives from international jurisprudence associated with disappearances. Ruti describes the core content of this right as one that “implies a set of obligations on the state, largely read into prevailing treaty rights protections involving personal security, such as the right to life, whether under the International Covenant on Civil and Political Rights or the European or Inter-American conventions on human rights.” Like arguments for a right to democracy, it has its aspirational dimensions. Yet, Ruti taps into some very interesting undercurrents that implicate state responsibility, and it is this angle that I wish to comment on today.

As conceptualized in her article, the right to accountability is a primary rule of international law that is based in treaty law, and particularly the right to life. It is also connected to other sources such as the International Convention for the Protection of All Persons from Enforced Disappearances, and Article 7 of the Statute of the ICC. There is, of course, no “right to accountability” as such.   The primary norm is based on patterns of jurisprudence developed through judicial tools which courts have adopted to overcome obstacles associated with cases involving disappearances, whether jurisdictional (such as time bars), or stemming from a state’s refusal to recognize the disappearance.

A central claim of the article is that this primary norm has developed as a remedy to the limitations of secondary rules, such as rules on attribution under the Articles on State Responsibility. In this, as Ruti notes, there are parallels with terrorism and cases of rendition, that have led to the elaboration of new duties, such as a duty to prevent, and creative thinking about omissions and due diligence standards. I have discussed these trends in a recent article in the Melbourne Journal of International Law available here.

Nonetheless, given the connection between state action and disappearances, the secondary rules of state responsibility remain important. Ruti describes some of these connections: in Heliodoro Portugal, for example, she writes that “the court drew on the principle of the continuing breach of state responsibility rather than fully conceiving the failure to provide accountability as an autonomous internationally wrongful act— which, of course, obviously continued up to the time the petition was brought, and persisted until and unless there was state explanation.”   Ruti also discusses the attribution of acts to a state, and notes the IACHR’s profound contributions to its development and application, beginning with the Velasquez Rodriguez case. Importantly, she highlights that courts are not adhering to the traditional two-step process of identifying attribution and wrongfulness, instead determining there is “a right to accountability” regardless of whether it can be established that the original human rights abuses were themselves internationally wrongful. Finally, in Goiburu, she discusses connections between forced disappearance and violations erga omnes, which trigger the responsibility of other states and the international community as a whole.

One interesting dimension of this article is that it points towards a unified theory of responsibility that combines international criminal law, human rights law, and global / criminal justice. Another is that it highlights the problem of slippage in international law: states are increasingly outsourcing key activities, including activities that have been linked with disappearances, raising the question of whether one high level of control is the appropriate default standard in international law.   Finally, this study supports the proposition that in certain areas of law- which may now include disappearances – the relevance of secondary rules is waning.  As such, the piece provides interesting insights into the status of secondary rules of state responsibility in a variety of regional courts.   There are a series of open questions that follow: Might this jurisprudence constitute a lex specialis for attribution doctrines in the field of human rights? More generally, what would a unified theory of responsibility that encompasses states, international organizations, individuals, and non-state actors look like? What would its core components be? Finally, are attribution doctrines under the ASR fit for the purpose today, given the changing nature of the modern state, including prevalent out-sourcing and multilevel governance situations?  I would be very interested in Ruti’s take on how to remedy the gaps in the ASR given the role of non-state actors in the cases she examines.

Transitional Justice and Judicial Activism Symposium: Comments by Chandra Lekha Sriram

by Chandra Lekha Sriram

[Chandra Lekha Sriram, Professor of International Law and International Relations and Director, Centre on Human Rights in Conflict, University of East London.]

This insightful article covers a great deal of subject matter, far more than can be analysed in a brief comment. These include not only the topics signaled by the title, but also the relationship between transitional justice and international criminal accountability and between transitional justice and the jurisprudence of regional courts. The primary focus of the article is the jurisprudence of regional courts, specifically the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), on forced disappearances and its relationship to political transitions. It necessarily touches upon a number of complex issues that continue to bedevil transitional justice and international criminal justice, and I will take up a few of these.

State perpetration and state inaction
The paper understandably begins with the jurisprudence of the IACtHR) and the Velasquez-Rodriguez, relating to enforced disappearances in Honduras. As with many of the cases to follow, while the pattern of state perpetration appeared evident, the state engaged in blanket denial of responsibility, and evidentiary difficulties have meant that judgments have relied on a mixture of state responsibility for direct action by its agents, and of state inaction. Teitel rightly flags this issue, but doesn’t expand on it as she might do, particularly in light of two challenges which confront international criminal and transitional justice: the role of non-state actors in serious abuses, and modalities of interpreting complicity and joint criminal enterprise.

Transnational/regional state violence
Not surprisingly given the history of transnational violence and inter-state collaboration in abuses via Plan Condor in South America, the IACtHR has had to render judgments on regional violence. Yet, while its decisions have referred to regional patterns of violence, they haven’t grappled sufficiently with additional challenges that state collaboration may have for questions of state responsibility, either for breaches of obligations to their own citizens or potentially those in relation to other states. Teitel explains that the trend is to treat such violations as erga omnes and thus of concern to the international community generally; this turn also appears to underpin treatment of temporal jurisdiction encompassing violations which predate some states’ acceptance of the jurisdiction of the court. Each of these trends seem open to question, and the essay might have interrogated these further.

Justice in and for strong vs weak states
The article argues that there has been a shift from strong to weak state transitional justice, in states with weak rule of law, with concomitant effects for regional and international courts. Certainly, it is notable that many of the situation countries at the International Criminal Court (ICC) are either emerging from serious internal armed conflict or are dysfunctional or collapsed states. However, these countries are all in Africa, with only Georgia now the subject of a non-African request for the opening of an investigation, and therefore not subject to the jurisdiction of either of the regional courts examined in the article. Further, while it is true that some of these states do have weak or failing judiciaries, many do not, although those judiciaries may well be corrupt or biased. Further, many states of interest for the article are not weak or collapsed, and are able to resist implementing judgments, either thoroughly or at all, such as Russia or Brazil. Even some ICC situation countries are quite strong, or at least able to resist external courts, such as Sudan, Kenya and Uganda. The claim regarding this trend needs more justification, particularly as there are important implications noted, such as that it is concomitant with an expansion of legal obligations and rights.

Cross-judging or transnational legal culture?
The article develops the concept of “cross-judging”, or interpretation across legal systems. She characterizes this largely as the cross-referencing of cases between the two regional courts. However, one might ask for a greater examination of the use of similar doctrines and practices across not only these courts but also others, as she begins to discuss when addressing subsidiarity, deference, and the ICC principle of complementarity. Here, an examination of the work of the African Court of Human and People’s Rights might have provided an additional comparative perspective, particularly given that court’s broader application of states’ obligations beyond the African Convention. The necessity of the creation of the term “cross-judging” is also somewhat unclear, given the rich literature that exists on transnational judicial dialogue and transnational legal culture. Is there something unique about the new term?

Expanding external jurisprudence and internal transitional justice
Teitel closes with reflections upon the challenges where courts intervene in countries where accountability has begun, but has stopped or is delayed. She suggests that there is, or ought to be, a continuum of accountability where there are domestic political considerations in play. Building on conceptions of judicial deference, subsidiarity and complementarity, she makes the case for caution with the increase of judicialization. It is an important call, given that much of the argument against judicialization and indeed individual criminalization has focused purely on political pragmatism, and political strategies, whereas she focuses on legal strategies. This approach opens up new opportunities for both research and policy development.

To close in brief, this is an article rich with challenges and ideas, and I have drawn on and queried just a few. Naturally, such an article could not have addressed all of the issues I have raised, but I look forward to Teitel’s reactions to the comments in this piece and others.

The Endowment Effect and the International Climate Change Negotiations

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the fifth in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

According to the endowment effect, people care more about losses than gains. If the no-Paris-agreement status quo represents country’s current endowment, then the endowment effect suggests that countries will place a higher priority on removing provisions in the Paris agreement that represent losses to them, than on including provisions that represent wins. That is why, in reaching an agreement, countries tend to resolve differences by removing provisions rather than by adding them. Hence the incredible shrinking climate agreement that I described in my earlier post.

Yesterday afternoon, the French put out a new version of the text (.pdf). Even though it made relatively modest changes, and left all of the crunch issues unresolved, and even though all countries accepted it as a basis of negotiations, they raised many objections in a three-plus hour meeting of the Paris Committee last night. Indeed virtually every option that the French text had tried to remove, some country insisted on putting back in. Following the Paris Committee, which ended at about 11:30 PM, the French presidency convened a smaller, closed meeting (known as an Indaba, a term that originated at the 2011 Durban COP), which reportedly ran until 7:30 AM. Apparently, the Indaba made little progress in bridging differences, so the French are now conducting bilateral consultations with a wide variety of countries, to try to reach agreement on “landing zones” for the various issues in the text.

Interestingly, the issue that was probably raised most frequently last night in the public meeting of the Paris Committee was the need to strengthen the long-term goal from the current goal of limiting temperature increase to no more than 2° C, to a goal of no more than 1.5° C. Since most analysts agree that there is no prospect of meeting the below-2° target, it is unclear what benefit would be provided by adopting an even more unrealistic temperature goal. Supporters of the 1.5° goal remind me of the courtiers to King Canute, who thought he could command the tide not to rise – they seem to believe that saying 1.5° will make it so. This reflects a touching faith in the power of words, but, frankly, I think the efforts to include a 1.5° degree goal might better be spent on including provisions in the agreement that are most likely to actually reduce emissions, such as a strong transparency system and a ratchet mechanism to encourage progressively more ambitious action over time.

The negotiations are now going 24/7. Although they are scheduled to end on Friday, most assume that they will continue into Saturday and possibly Sunday. A good indicator is that most delegations with whom I’ve spoken have booked return tickets for Monday!

Correction:  My original post incorrectly suggested that King Cnut actually believed he could command the tide to stop.  But, apparently, the correct rendition of the story is that King Cnut knew he was powerless to stop the tide from rising, and ordered it to do so either to show the supreme power of God over his own secular power, or to rebuke his fawning courtiers (depending on which version of the tale one reads).

Transitional Justice and Judicial Activism Symposium: Comments by Dinah PoKempner

by Dinah PoKempner

[Dinah PoKempner is General Counsel of Human Rights Watch. She is writing in her personal capacity. Views expressed in this essay are not necessarily those of HRW.]

Increasing judicial recognition of a duty to investigate and even to prosecute serious violations of international law is unlikely to narrow the ambit of transitional justice; to the contrary, it adds pressure for more thorough transitional measures by upping the reputational cost of impunity.

Not even two decades have passed since agreement of the Rome Statute of the International Criminal Court, arguably a high water mark in political consensus on accountability for human rights crimes. While that institution has survived what was initially feared to be its strongest political obstacle—the non-participation and even subversion of great powers—it is still having difficulty in gaining acceptance in Africa, a region with the greatest number of both states parties and ICC investigations. The region is also known for weak state institutions where, as Ruti Teitel would acknowledge, supranational judicial intervention (even by invitation) may be most likely and most appropriate. Indeed, watching its moves in carefully navigating a course to find what is politically as well as legally feasible to prosecute is itself an education in the limitations of international law as a bulwark against real-world impunity, even after the moment of international political consensus.

I mention this, because it seems premature to worry, as Teitel does, about a developing judicial consensus on what she terms the “right to accountability” overwhelming the political options for transitional justice. If anything, judicial recognition of state obligations to provide account, investigate and even prosecute the most serious abuses can add a little impetus for broader transition from a regime of abuse towards one of legality.

Teitel elegantly traces a number of components of accountability through international judicial bodies. She grounds the notion of account in the crime of enforced disappearance, where the question of what happened and who did it—that is, the state’s refusal to give account–is quite literally the central wrong. As she points out, the law developed in a way highly sensitive to context, in this case the regional as well as national context of patterns of impunity, failure to investigate, and systemic political corruption that courts noted in imputing duties to the state even where states denied involvement in the crime.

It bears mention that in less obscure contexts—massacres, genocides, ethnic cleansing—the notion of an investigation and formal account has also become established as a primary duty of the state, both through normal domestic law and through transitional mechanisms. Should the state fail in this duty, such an account might be supplied by a foreign or international prosecutor, court or commission if need be. Either way, resort beyond the national courts indicates a failure of the state to assume the burden of the account as well as the conclusions on remediation or retribution that may flow therefrom. What disappearance jurisprudence added was not an entirely sui generis duty of investigation or right to the truth (.pdf), but rather a notable judicial reluctance to step aside (by courts flexibly interpreting doctrines such as standing, exhaustion of remedies, statutes of limitation, etc.) when a state stonewalled on what everyone more or less knew were the likely victims, the likely perpetrators, and the likely wrongs.

Indeed, enforced disappearance, more than many other human rights crimes, is custom-built for legal deniability. It may be that the precedent of courts sidestepping prudential obstacles to read new duties into the law may be more interesting as a model of judicial approach for other elusive or deniable crimes than as the origin point of a duty to investigate. Perhaps a duty of democratic oversight or transparency will one day be read into human rights law when deniability for violations rests on secrecy justified by national security interests; or maybe we will see a duty of accurate and public record-keeping on persons taken into state custody, to avoid liability for conditions that encourage abuse.

The second line of jurisprudence Teitel describes as creating a “right to retributive justice” involve state actions that in the main implicate criminal acts for which there is a clear and pre-existing duty of investigation and potentially prosecution, such as torture, enforced disappearance or a crime against humanity. Although scholars have long asserted a duty of prosecution, it was not seen by all as comprehensive or mandatory until fairly recently. That such a duty is gaining judicial recognition is a natural corollary of the positive duty of states to prevent abuses, by discouraging an environment of impunity.

But the formal legal recognition of a duty to prosecute does not necessarily displace transitional justice measures as Teitel suggests when she adverts to “a restructuring and narrowing of the relevant questions” or to a shift of emphasis from “political and social goals of transition to other more limited aims such as procedural justice for victims and their families.” There is no reason that these processes cannot co-exist, and indeed, they often do.

Indeed, as she acknowledges, supranational legal interventions from regional courts can also take place outside of a transitional context or in lieu of it; Russia and Turkey are not in the midst of transition with respect to their counter-terrorism policies, to the contrary. One might even wonder whether the incorporation of some states to regional human rights mechanisms might in some ways “normalize” these moments of intervention and criticism. But even where they don’t produce systemic change, such interventions do not pass unnoticed and can provide some support for those who press for greater respect of human rights or incorporation of universal standards into domestic law. And sometimes these rulings can impel further alignment with more generally held democratic norms where the political process hit a plateau.

Teitel’s recommendation that regional courts take into consideration whether some deference to transitional justice processes is due, while pragmatic, perhaps misses the point that whatever their function was at their moment of inception, these courts are not serving only transitional ends. The European Court of Human Rights, for example, mostly regulates mature democracies, and undue deference to the transient political circumstances of one state creates normative license for others as well. A regional court may not be able to disturb a self-amnesty law in a given country, but it can discourage that law from having wider recognition as a legitimate act of a sovereign democracy. The repertoire of transitional justice is likely to remain broader than the jurisprudence of human rights courts, which serve a different end, and a different pace.

The Incredible Shrinking Climate Agreement?

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the fourth in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

“Tomorrow and tomorrow and tomorrow creeps in this petty pace from COP to COP.” For many, that might be the slogan of the UN climate change regime. Or, to mix literary metaphors, the COPs are reminiscent of Sartre’s No Exit, where hell consisted of being locked in a room talking to the same small group of people for eternity.

Paris is the opportunity to prove the skeptics wrong – to show that the climate change regime can take a real step forward, rather than just creep along from COP to COP. But whether it will succeed in doing so remains an open question.

First, the good news. Paris is definitely one of the best-organized COPs ever – the French have done a fantastic job. And the mood, perhaps not coincidentally, is also good, totally unlike the poisonous atmosphere in Copenhagen, where some countries sought to systematically undermine the Danish Presidency. In contrast, one hears nothing but praise for the French team’s handling of COP21. Instead of angry protesters outside the venue, people are handing out apples, as a taste of biodiversity.

Moreover, the text is gradually being streamlined to a more manageable size. Parisagreement.org, a group based at UC San Diego, have been tracking the number of brackets and options in each successive iteration of the negotiating text. According to their figures, the number of brackets in the December 5 text has shrunk by 45% from the November 10 text, and the number of options by 60%. Of course, their work reminds me a bit of the Monty Python skit in which John Cleese compares the difficulty of Shakespeare’s plays in terms of the number of words they contain: Hamlet has 8262, Othello has 941 words fewer, and so forth. But then he adds, “Ah well, I don’t want you to get the impression it’s just the number of words … I mean, getting them in the right order is just as important.” Something similar could be said of brackets; it’s not just the number, it’s also a matter of whether they reflect real differences or are just negotiating ploys. That said, I do think it’s fair to infer that the shrinking number of brackets and options reflects progress. And I remain optimistic that there will be an agreement this week in Paris.

The question is what will survive the negotiating process and make it into the agreement. Although the text is in better shape than many expected and the number of crunch issues is relatively manageable, states continue to push proposals that have no prospect of being accepted, in an effort to gain negotiating leverage. So progress remains slow.

The political imperative of reaching a deal gives tremendous leverage to potential naysayers. The usual solution, when time is running out, is to cut and cut and cut, until the outcome doesn’t push any country past its comfort zone. Developing countries want strong provisions on finance and differentiation, while developed countries want more modest provisions. Conversely, developed countries want strong provisions on transparency and updating (to promote progressively higher mitigation ambition), while the big developing countries do not. How to bridge these differences? The easiest solution is to trade weak provisions on finance and differentiation for weak provisions on transparency and updating.

Even if this is how the end game plays out – and that is, of course, by no means a foregone conclusion – I don’t think it would be fair to characterize the Paris process as a failure. Paris has served as a catalyst both for national governments and for sub-national and non-governmental initiatives. It has prompted more than 185 countries to put forward INDCs, which would reduce emissions by an estimated 4-8 gigatons below business as usual by 2030, according to a recent report by UNEP. It has led to a groundswell of activities by cities, regions, and companies. And it has spawned initiatives like Mission Innovation, announced last week by President Obama, President Hollande, and leaders from 18 other countries, who pledged to double their clean energy R & D over the next five years, as well as the related private initiative, the Breakthrough Energy Coalition, led by Bill Gates. So, in many ways, Paris is already a success. Nevertheless, the international agreement that the Paris process is supposed to produce is also a key ingredient. If the INDCs submitted by countries aren’t bolstered by an agreement with strong provisions on transparency and ambition, then I think Paris will be a lost opportunity to show that the UN process can do more than creep – that there’s a way out of the room within which the negotiators have been locked.

Success in the Paris Climate Negotiations in Broader Context

by Hari Osofsky

[Hari Osofsky is a law professor, faculty director of the Energy Transition Lab, and director of the Joint Degree Program in Law, Science & Technology at the University of Minnesota. She is serving as chair of the American Society of International Law’s observer delegation at the 2015 Paris climate change negotiations. Any views expressed are those of the author and do not represent the views of either the University of Minnesota or the American Society of International Law.]

I appreciate the opportunity to guest blog with Opinio Juris while at the Paris climate change negotiations this week. I will aim in my blogs to complement Dan Bodansky’s excellent assessment of the negotiations among state parties by examining the broader context of what would be required to address climate change adequately and the activities by other key stakeholders.

From my observation of the first Comité de Paris and hallway conversations on Monday, December 7, the parties still seem on track to reach some sort of agreement in Paris, though perhaps not by the Friday deadline. While there are certainly some differences yet to be resolved, the tone appears to be unusually cooperative at this stage according to those who have attended many of these negotiations.

However, even if the agreement contains reference to the need to keep warming less than 1.5 degrees, which appears increasingly likely, the state parties are highly unlikely to actually achieve that with their current commitments. As one civil society participant from Latin America remarked to me yesterday, the key question is whether we hold warming at 3 or 4 degrees. While I certainly hope he is wrong, we are not on track, even is these negotiations successfully conclude, to mitigate at the levels that scientists say are needed. And as I have analyzed in forthcoming articles with Jackie Peel  and Hannah Wiseman, even if we can find ways to more constructively address energy partisanship in the United States, the Clean Power Plan will involve a complex integration of an environmental cooperative federalist law with a largely state- and regionally-based energy system.

So how do we bridge the gap between what negotiations among nation-states can achieve and what is needed? Two key pieces of that puzzle are subnational governments and the private sector (particularly corporations and investors), and my blogs this week will focus on some of their activities here.

In the process, I will also try to convey, for those who have not attended international negotiations like these, the concentric circles of activity taking place here, with access limitations between each ring. At the core are the nation-states negotiating, and even some of those meetings are only open to subsets of those negotiators. A key concern raised in the Comité de Paris by several state parties on Monday night was the need for more transparency and inclusion in the informal facilitated streams taking place this week to try to bridge differences. Outside of that are official observers, who can gain access to only a very limited set of the negotiations but are able to enter the “Blue Zone,” which contains the negotiating spaces and many of the high-level side events. Outside of the restricted space, a hall in Le Bourget and venues around Paris contain events open to the many people who are here without access passes.

As I move between sessions in the “Blue Zone” space, the people around me exude a sense of being rushed and busy with important tasks as they race among meetings and cluster in small groups in hallways. I am continually reminded of an observation by Sheila Watt-Cloutier, the-chair of the Inuit Circumpolar Conference, when she presented  at the climate change negotiations in 2005, the year that the Inuit submitted their petition to the Inter-American Commission on Human Rights claiming that U.S climate change policy violated their rights:

I have attended three COPs. People rush from meeting to meeting arguing about all sorts of narrow technical points. The bigger picture, the cultural picture, the human picture is being lost. Climate change is not about bureaucrats scurrying around. It is about families, parents, children, and the lives we lead in our communities in the broader environment. We have to regain this perspective if climate change is to be stopped.

While many at these negotiations clearly have that bigger-picture focus, I think that continually reminding ourselves of what all these legal conversations are really about is critical. Achieving an agreement that goes farther than anything that preceded it at Paris would certainly be a form of success, but ultimately we only succeed if we limit human suffering and ecosystem damage—and develop new opportunities—through mitigating and adapting adequately.

Symposium on Ruti Teitel’s “Transitional Justice and Judicial Activism: A Right to Accountability?”

by Chris Borgen

This week it is our pleasure to host a symposium on Professor Ruti Teitel’s article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf).  After an initial post by Professor Tetitel, we will have comments by Dinah PoKempner of Human Rights Watch, Professor Cesare Romano of Loyola, and Professor Chandra Sriram of the University of East London.

We are looking forward to the discussion!