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More on Boehner’s Netanyahu Invite (and What It Says About Constitutional Change)

by Peter Spiro

My earlier post on whether John Boehner’s invitation to Benjamin Netanyahu seems to have triggered a little in-house conservative disagreement on the issue (or at least Weekly Standard’s Adam J. White is giving me credit for that). Mike Ramsey and David Bernstein come out against the invite’s constitutionality here and here; White argues in favor.

As I left off my first post, the question is appropriately raised but I think ultimately the Boehner move will go down as policy stupid but constitutionally legitimate. Appropriately raised because the invitation seems so patently at odds with a “one voice”/”sole organ” approach to foreign relations. Nice to have Mike Ramsey to confirm that the Founding generation wouldn’t have bought in (though Ryan Scoville dissents on the historical record here). But it would have provoked a huge controversy in the 20th century as well — see the much more informal interaction between Jim Wright and the Sandinistas during the Reagan years. Imagine if Wright had invited Sandinista leader Daniel Ortega to address Congress. I think a lot of folks would have deployed constitutional objections to that.

But just because it may have been unconstitutional then doesn’t mean it’s unconstitutional now.

The fact that it was left to a niche blogger to raise the constitutional question this time around pretty much proves the fact that this is now water under the constitutional bridge. There’s no way to put the lid on direct communication between members of Congress and foreign government officials. So much for “one voice.” One has to assume such communications are now dense. Making the jump from lots of behind-the-scenes contact to more formal actions like the Boehner invitation looks small. One might even argue that it is transparency enhancing. Better to play the institutional cards openly than hide them under the table. (Adam White highlights similar activity on the part of the courts, including the increasing amicus practice of foreign states. That practice would have raised a lot of eyebrows as recently as a couple of decades ago, especially on domestic issues; it’s now pretty routine.)

So the episode is a nice illustration of how changes in context can change constitutional understandings. Assuming the constitutional debate on the Boehner move remains restricted to a side conversation among constitutional scholars, it will supply a good precedent for similar moves on Congress’ part in the future. The practice then becomes constitutionally entrenched, accepted by all relevant actors. Any earlier understandings (including ones dating back to the founding) are overtaken by events. Th Constitution necessarily adapts to the world in which it has to operate.

Current Guantanamo Detainee Publishes Diary

by Deborah Pearlstein

While I’ve no insights into why the government finally permitted current Guantanamo detainee Mohammedou Slahi to publish the diary he hand wrote in English back in 2005, several years into his captivity, published it now is, subject to relatively minor redaction. The diary is a remarkable read in many respects; my longer take and a summary of Slahi’s account can be found in my review for the Washington Post this past week. Slahi, a Mauritanian national who holds a degree in electrical engineering, describes brutal beatings and other forms of torture not only in detention while in Jordan, but also at length at Guantanamo itself. A federal district court in Washington ruled in 2010 that Slahi’s petition for habeas corpus be granted; on appeal, that decision was remanded (for the application of a different standard of who can be considered “part of” Al Qaeda), and there it continues to sit. Diary publication notwithstanding, Slahi remains at Guantanamo today.

Is Boehner’s Netanyahu Invite Unconstitutional?

by Peter Spiro

John Boehner has invited Bibi Netanyahu to address Congress. There’s a modern tradition of foreign leaders appearing before the legislature (list here). I’m willing to bet that every single one of those appearances was pre-cleared with the State Department or White House in advance.

I’m no student of Middle East politics, but it’s seems pretty clear that the the White House and the congressional GOP leadership are at loggerheads on US policy here and that the Boehner invitation is meant to advance the GOP (and Israeli) position on Iran. In the past, when members of Congress have gone freelance on foreign policy there’s been a tradition of waving around of the Logan Act, which provides:

Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

It happened most prominently when Jim Wright played footsie with Nicaragua’s Sandinista regime in the 1980s. It was suggested as a problem as recently as 2007 when Nancy Pelosi visited Syria against Bush Administration wishes. As conservative commentator Bob Turner argued in a Wall Street Journal op-ed (“Illegal Diplomacy“):

consider this statement by Albert Gallatin, the future Secretary of the Treasury under President Thomas Jefferson, who was wary of centralized government: “it would be extremely improper for a member of this House to enter into any correspondence with the French Republic . . . As we are not at war with France, an offence of this kind would not be high treason, yet it would be as criminal an act, as if we were at war . . . .” Indeed, the offense is greater when the usurpation of the president’s constitutional authority is done by a member of the legislature — all the more so by a Speaker of the House — because it violates not just statutory law but constitutes a usurpation of the powers of a separate branch and a breach of the oath of office Ms. Pelosi took to support the Constitution.

No intent here to compare Netanyahu and Assad, but the logic of presidential control applies in both cases. (This isn’t about actual prosecution under the Logan Act. No one is ever actually prosecuted under the measure; it’s more a focal point for highlighting structural aspects of foreign relations.) In both cases, presidential powers are “embarrassed” in the terms of Curtiss-Wright. Will the Wall Street Journal take Boehner to task for his move? Somehow I doubt it. (For that matter how could constitutional originalists square this with the Framers’ intent? No head of a foreign state appears to have addressed Congress prior to 1919.)

The White House has called the Boehner move a breach of protocol. If this were happening beyond the political anomalies of the Middle East, I wonder if it might be using some stronger language. In any case the episode will set a precedent for congressional bypass of executive branch foreign policy in interacting, fairly formally, with foreign government leaders. (Will the Speaker host something like a state dinner for Bibi?)

Mind you, I’m not sure it’s a bad precedent (again, leaving aside policy particulars of the ME situation). It’s a fact of life that governmental components are now semi-autonomous foreign policy players in a way that would have been unimaginable in the 18th century. The constitutional custom, norms, “protocols” — whatever you want to call them — are catching up to those realities. Presidents will just have to learn to deal with the new tools of foreign policy dissent.

UPDATE: More thoughts from me on this here. On the originalism point, don’t take it from me, take it from Mike Ramsey, easily the leading expert on originalism in the context of foreign affairs. The VC’s David Bernstein, a consistent Israel/Netanyahu/GOP backer, is also on board in thinking there is a constitutional problem.

Does President Obama Need Congress to Lift the Embargo on Cuba? Yes.

by Julian Ku

It looks like a big showdown is brewing between the President and Congress over Cuba policy (Here comes 2016 presidential candidate Rubio!).  Some legal commentators have argued, however, that President Obama already has the legal authority to lift all or most of the Cuba embargo without any further action by Congress.  Robert Muse, a lawyer whose practice is all about Cuba sanctions law, has stated that the President has very broad discretion to lift most of the restrictions on trade with Cuba without further congressional action. Is he right?

I am not Cuba sanctions law expert, so it is possible I am missing something.  Since the bulk of the Cuba sanctions are found in regulations issued by the Treasury Department’s Office of Foreign Assets Control pursuant to the Trading with the Enemy Act, it would seem like President Obama could indeed lift those sanctions by simply withdrawing those regulations.  The TWEA has never been read to require sanctions, and President Carter lifted similar sanctions on China without Congress in 1979.

On the other hand, Congress has also enacted two Cuba-specific statutes: the Cuban Democracy Act of 1992 (CDA), 22 U.S.C. §§ 6001-6010 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091 (“Helms Burton). The latter appears to codify” the OFAC regulations on Cuba that were initially issued under the TWEA. See Section 102(h) (“Codification of Economic Embargo.– The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of this Act.”).  Section 204 in turn “authorizes” the President to lift sanctions only after submitting a determination to Congress that a transitional government in Cuba exists and that the lifting of sanctions will contribute “to the stable foundation for democratic government.” There is also the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), 22 U.S.C. §§ 7201-7211, which imposes further limitations on financial transactions with Cuba and allows no Presidential waiver.

It is worth noting that President Clinton expressed some reservations about the impact of Section 102(h) when he signed the Helms-Burton Act, stating that it”could be read to impose overly rigid constraints on the implementation of our foreign policy.” But Clinton didn’t suggest imposing conditions on when the President could lift sanctions actually violated the Constitution.  Since I assume Congress is the source of the authority to impose sanctions in the first place, it seems reasonable that Congress could impose conditions on when those sanctions can be lifted.  Any argument that those conditions themselves are unconstitutional would be a remarkably aggressive legal argument.

So I don’t think the calls from some quarters for a unilateral lifting of the embargo on Cuba is supportable as a legal matter.  In fact, there are good reasons to doubt the legality of the loosening of sanctions already announced by OFAC.  In any event, there will be lots of legal skirmishing over the next few months on this front. It will be interesting to see if President Obama ever pulls out the “presidentialist” card and tries to argue some of these sanctions laws violate his constitutional authority.  I would doubt it, but then again I never thought he would engage in a separate war in Iraq and Syria with ISIS and change US immigration law without Congress either.

 

SDNY Finds UN Immune in Haiti Cholera Case

by Kristen Boon

In an 8 page decision handed down on January 9, Judge Paul Oetken found that the UN is immune in Delama Georges et. al v. UN, the so-called “Haiti Cholera case.” The decision is available at: http://www.ijdh.org/2015/01/projects/united-states-district-court-southern-district-of-new-york/ The finding that the UN is immune rests on two points: first, that the UN did not expressly waive its immunity under the Convention on Privileges and Immunities, and second, that any alleged inadequacy with the UN’s failure to offer a mode of settlement did not trump the requirement for express waiver. Relying on Brzak v. UN, Judge Oetken wrote:

“The Second Circuit’s decision in Brzak v. United Nations requires that Plaintiffs’ suit against the UN be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(h)(3). In Brzak, the Second Circuit unequivocally held that “[a]s the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless ‘it has expressly waived its immunity.’” 597 F.3d at 112 (quoting CPIUN art. II, § 2). Here, no party contends that the UN has expressly waived its immunity. (Statement of Interest at 6 (“In this case, there has been no express waiver. To the contrary, the UN has repeatedly asserted its immunity.”).); (Dkt. No. 43, at 1 (“Waiver is not at issue here.”).) Accordingly, under the clear holding of Brzak, the UN is immune from Plaintiffs’ suit. In addition, MINUSTAH, as a subsidiary body of the UN, is also immune from suit.   … …. “nothing in the text of the CPIUN suggests that the absolute immunity of section 2 is conditioned on the UN’s providing the alternative modes of settlement contemplated by section 29. See Tachiona v. United States, 386 F.3d 205, 216 (2d Cir. 2004) (“When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used.” (internal quotation marks omitted) (interpreting the CPIUN)). As the Second Circuit held in Brzak, the language of section 2 of the CPIUN is clear, absolute, and does not refer to section 29: the UN is immune from suit unless it expressly waives its immunity.”

Although a decision upholding the UN’s immunity has always been predicted, the spirited hearing on the UN’s privileges and immunities in October provided an opportunity to explore other ways to frame the issue.   In particular, Judge Oetken’s analysis of the language of the treaty (the UN shall provide an appropriate mode of settlement) suggested that effective dispute resolution in private law matters was not a matter of discretion.

The ruling here is consistent with other recent mass torts challenges against the UN, for example, the Mothers of Srebrenica case in the Netherlands where the UN’s absolute immunity was upheld following the massacre of 1996. Nonetheless, two important distinctions with the Srebrenica case are apparent. First, an alternative was available: proceedings against the Dutch state have been successful in at least one case so far.  Second, the Srebrenica cases clearly involved questions of operational necessity which are typically considered public or policy matters.  Under the CPIUN, the UN is not under an obligation to provide appropriate modes of settlement if the matter is not of a private law nature.

The plaintiffs have indicated that they will appeal the ruling.   Meanwhile, two related actions are pending in US district courts.

Never Thought I’d See the Day

by Deborah Pearlstein

Picking up on Kevin’s post about Fox News’ reporting on the terrorist threat (or something) in Europe, it’s worth noting that in addition to reporting that multiple areas of Paris were now “no go” zones, Fox also reported “poll results” purporting to show that 69% of Muslims in France support ISIS; and an ‘expert’s’ assertion that Birmingham, England is a “totally Muslim city where non-Muslims don’t go in.” Fox competitor CNN is, naturally, all over it. The factual inaccuracies eventually got so bad that after trying to correct them item by item, Fox eventually surrendered (so to speak), issuing a general apology to “the people of France and England.” Diplomacy in action.

Happy Birthday OJ!

by Kristen Boon

Although I’ve only been a regular OJ blogger for two years now, I feel like I’ve known OJ since it was born.

Chris Borgen, Julian Ku and I have been friends since we all worked together at Debevoise and Plimpton in New York years ago.  Over the years I’ve gotten to know Peggy, Roger, Ken, Deborah, Duncan, and at least by email, all the others! I was extremely honored when Chris invited me to join the crew in 2012. Chris, I owe you a big thanks for this incredible opportunity.  One of my most professionally rewarding occupations is to be part of this conversation, as Deborah puts it, about international law today.

I have used blogging in a variety of ways over the last 2 years. I’ve used it as a vehicle to test ideas see here and here on topics related to the Security Council. I’ve used it to report on recent developments, for example, my many posts on the Haiti Cholera case against the UN. I’ve also used it as a venue for opinion pieces on subjects of current concern, whether on academic topics close to my heart like Jus Post Bellum or newsworthy international law developments, including a post here on the relationship between sanctions and the 2013 deal with Iran, a post here on Bashir’s interest in coming to the 2013 General Assembly, and the East China Sea dispute available here.   Each type of blogging brings its own rewards, and puts one in contact with different networks of academics, practitioners, journalists, and observers, from around the world.

Blogging has also prompted me to follow subjects I’m interested in – like the UN – in greater detail, and to watch and report on the ebbs and flows of debates and developments with a better trained eye.  Over the past two years in particular, I’ve participated in a number of UN projects, including the recently concluded High Level Review on Sanctions.   During this period, there has been a well-known hardening of relations between the Western Powers and Russia, which has affected the Council’s ability to act decisively on many recent issues.  In addition, China’s rising influence on matters of international law remains an important development institutionally, and with regards to state practice generally.  In parallel to this period of power shifts, stresses from the outside seem to have multiplied: chronic underfunding, the advent of mass torts cases against the UN, the communications revolution, the creation of more flexible, new bodies.  Many of these themes are recalled in Frederic Megret’s terrific essay on the Cholera Case available here.

And yet, as Francesco Mancini perceptively writes, rumors of the UN’s death have been greatly exaggerated.    The UN recently turned 69, and it currently has 16 current peacekeeping operations, including robust peacekeeping missions in which peacekeepers are given an offensive mandate.  Although it shows it age in some ways – take for example the almost defunct Trusteeship Council – if is catching up on many other fronts – I think here of efforts to improve due process in sanctions listings –  and ahead of the curve on many others, including measures to combat terrorism.   Major reviews on peacekeeping and political missions, as well as the UN’s peacebuilding architecture, are planned for 2015.  These reviews will present an opportunity for stocktaking and goal setting in two of the UN’s most important fields, for the next decade.

As I look ahead to the next period of blogging, I hope these developments will be something we can discuss and debate together on OJ.  Thanks to all for the opportunity to be part of this enterprise.

Law Blogging as Law Making

by Jens David Ohlin

For 10 years, Opinio Juris has served as a forum for short-form legal scholarship. Many posts were short and simple, quickly flagging a particular development or issue and bringing it to the attention of international lawyers across the globe. But other posts were far more in depth, analyzing a complex legal issue with great subtlety and persuasion. What strikes me about the longer posts is that they often read like mini-articles, enhancing and enriching legal scholarship with shorter articles that might not–or could not–be explored in regular law review articles. Producing legal scholarship on a daily blog allows for an immediate impact that would be impossible in a law review or law journal with a 6-month (or even 2-month) publication cycle.

Opinio Juris posts have been cited in many law review articles. A simple search for opniojuris.org in any law review database will pull up hundreds of examples of law review blog posts that are now cited as scholarship alongside treaties, cases, and more conventional articles. Opinio Juris postings also impact the daily practice of law in important and urgent cases. To name just one well-known and recent example, Kevin Heller wrote about the U.S. drone strike against Anwar al-Awlaki and queried whether it violated the federal murder statute. It was widely reported that Kevin’s post prompted the Office of the Legal Counsel in the Justice Department to substantially revise their draft memo regarding the lawfulness of targeting al-Awlaki. If that isn’t real-world impact, I don’t know what is.

I like to use blog posts, on Opinio Juris and elsewhere, to sound out ideas that eventually make it into law review articles. It’s often easy to sketch out the basic contours of an argument and see what kind of reaction it generates. Then, when it comes time to render the argument in article form for a law review, one already knows which aspects of the argument will generate the most push-back and will require a stronger defense. In many cases one can predict this in advance, but in other situations the audience reaction is genuinely surprising and counter-intuitive. In this way, law blogging improves legal scholarship.

For most of the last 10 years, I’ve been a reader of Opinio Juris, not a blogger. My migration from the former to the latter is relatively recent. Ten years from now, I hope we are looking back on another decade of compelling and intense discourse.

A Career, in Blogging

by Kevin Jon Heller

I published my first post on Opinio Juris on February 10, 2006. That was almost nine years ago, and although I do not have exact figures, I estimate that I’ve written around 1,800 posts and close to a million words on the blog since. And my lifetime numbers are actually even a bit higher — beginning in August 2004, I blogged for a while with my friend Tung Yin, who teaches at Lewis & Clark. (You can find my first posts ever, if you are so inclined, here.) I only joined the University of Georgia as an assistant professor in June 2004 — which means that I have been a blogger for all but two months of my academic life.

I had no idea when I joined Opinio Juris that I would still be plugging away nine years later. I didn’t even set out to join it. It just kind of happened, as so many good things do. I stumbled across the blog in my first year at Georgia, was instantly outraged by Julian’s posts on the Iraq war, and started leaving long and often somewhat intemperate comments on the blog. (I know, you’re shocked.) This went on for a while, until Peggy finally wrote to me and asked if I wanted to guest-blog for a couple of weeks. I thought that sounded like fun, so I pre-wrote a few posts and off I went. I must not have been too tendentious in those early posts, because not long after my guest-stint ended, Peggy, Chris, and Julian (to his credit!) asked me to join permanently.

I said yes without hesitation — against the wishes of my Dean, and against the advice of most of my senior colleagues. It wasn’t that they didn’t take blogs seriously. (I’m not sure what they thought of them.) But they all agreed that blogging so early in my career was a terrible idea, because it would distract me from more traditional scholarship. Their opposition only motivated me further: if everyone was against it, I figured, blogging had to be a good idea. And the rest, as they say…

As I tell anyone who asks, that was the best professional decision I ever made. Blogging did not — and has never — undermined my “ordinary” scholarly productivity. Quite the opposite. I have always used blogging to ease into traditional writing; churning out a short post gets me going. There’s a reason Sartre mentioned the writer’s blank page as the quintessential example of existential nausea; ain’t nothing going on that page unless the writer puts it there. So writing begets more writing for me — not less.

And then there is the exposure…

Thanks for the Conversation, OJ

by Deborah Pearlstein

When Peter Spiro wrote to ask me back in 2007 whether I might be interested in writing a response to then-State Department Legal Adviser John Bellinger’s posts on the blog, Opinio Juris, I had two nearly simultaneous reactions: (1) The U.S. State Department Legal Adviser was writing on a blog?!; and (2) Yes.

I am, as I take it Duncan once was, a pathetically late adopter of new technologies – gadgets and forms of communication alike. Blame it I suppose on being the offspring of a physicist father and journalist mother, but peer-reviewed scholarship and old fashioned investigative reporting were – still are for me – the standard bearing pillars of thought and current events. How I now find myself writing scholarship for a field still substantially without peer reviewed journals is perhaps best left for another discussion. How I find myself writing on a blog is easier to explain: it’s where a conversation we all needed to have about law and security in the new world was happening.

That the conversation was happening on a blog primarily about international law admittedly gave me some cause for hesitation when Chris asked me to become a regular contributor the following year. I had gone to law school to study civil rights and U.S. constitutional law. True, I had studied some international law, with the lovely Detlev Vagts, who we lost not too long ago. But the subject seemed to involve far more about ancient maritime incidents than suited my taste. Yes, there were (even then) human rights treaties on the books. But they seemed to me then of little instrumental value to one aiming to tackle injustice (an immodest aspiration) here in the United States.

I was just past clerking when September 11 happened, and not far into practice when it became clear the United States’ response to those attacks would be the most important thing to happen to constitutional law in my lifetime. It soon became equally clear that pulling out my old international law books, and mastering all I hadn’t gotten the first time around and more, would be a necessity if I hoped to grapple seriously with the rights impact of U.S. uses of force, detention, interrogation, trial, and more. The law of armed conflict quickly became a central area of professional focus for me, as my practice shifted from an excess of pro bono constitutional law cases to full time work for a human rights NGO.

Yet even in the midst of that practice, it still seemed presumptuous to consider myself part of the field of international law, a field that I fear still carries more than its share of barriers to entry for law students, lawyers and non-international law faculty alike. Too many of the “real” international lawyers and scholars I knew had a bad habit of assuming vast amounts of background knowledge, and of using field-specific jargon of the worst, Latinate kind. Too few made careful enough distinctions between the law that is binding and law that is hortatory. Between the law as it is and the law as we might wish it to be. There was a lot of underbrush to sort through.

Not that there wasn’t blame to go around; there was deep ignorance of international law even among folks who should know better. International relations theorists who didn’t recognize a distinction between their criticisms of particular international institutions and the substance of international law. Law professors who had never contemplated any difference between comparative law and international law. A leading political scientist who, on hearing that I taught both constitutional law and international law, expressed amazement at teaching in such “opposite” fields – the one being hard core LAW-law, the other being (something like) a Hogwarts text on witchcraft and wizardry. And far too many American policymakers who think “international” law means someone else’s law, rather than (as is often the case) commitments we ourselves agreed to undertake.

Of all the terrible effects of 9/11 and the U.S. response to it, I like to think one of the few beneficial effects – certainly among the most ironic – is that it has brought far greater awareness of international law to a new generation of students, practitioners and scholars. My strong sense – someone should do a less impressionistic survey – is that courses in U.S. law schools in relevant areas of international law, including the law of armed conflict and human rights law, have proliferated in recent years. Federal cases in those fields certainly have, along with federal judges’ exposure to them. And that has made a forum like OJ more in demand, and more essential to the discussion, than ever.

I can’t quite say everyone’s talking about international law now. But I probably need to start admitting that at least on occasion, I am. Thanks to OJ – and all of you – for the great conversation.

What Are International Law’s “Must Reads” from the Past Decade?

by Chris Borgen

In a comment to a recent post, Patrick O’Donnell noted a post from the first year of Opinio Juris in which I had taken a crack at starting a list of the “must reads “of international law. I wanted to get a discussion going over what should be the key scholarly texts in our field. Opinio Juris readers made significant contributions and suggestions to the list.

Returning to this discussion, are there any “must reads” that we should add from the last ten years: articles, books, blog posts? What were the any earlier texts that we missed?

As Peter mentioned in his post, international law is constantly expanding breadth and drilling down in depth, such that there are now relatively few generalists. It may be that the moment has passed where one person could have have deep expertise across the whole of the field.

I wonder if the “must reads” on international law will be less and less about “international law” in general, but rather be deep dives into a particular substantive areas. My guess is that as international law itself is flowering, the list of “must read” texts is also growing as there are important texts across an ever-widening spectrum of international legal theory and practice. But now some (perhaps most?) of the “must reads” might not be “must reads” for everybody, but for anybody interested in a certain area of our profession.

If you have any suggestions as to “must reads,” either generalist texts or in a particular sub-field, please let us know in the comments to this post or via Twitter to @Chris_Borgen and @OpinioJuris with the hashtag #OJ10 (we may then post them in the comments section to the post).

I have a few initial (and non-exhaustive) suggestions from the last decade. They are texts that I return to time and again for their perspectives and insights. With the following selections to start things off (as well as the original list from 2005), I look forward to any other suggestions the Opinio Juris community may have!

General Texts or Treatises

James Crawford, The Creation of States in International Law (Oxford 2d ed. 2006)  A remarkable compendium of analysis of the international law of statehood and sovereignty.

James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge 2002). This should have been on the original list back in 2005. A key reference to an important project in international law.

Report of the Study Group of the International Law Commission on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (.pdf) (13 April 2006) UN Doc A/CN.4/L.682 and the accompanying Analytical Study (.pdf). Much the this post is built on the assumption that international law is expanding, becoming more institutionally complex, and deepening. But is the proliferation of law and institutions also leading to legal fragmentation? This has been a much-debated topic since at least the 1990’s. The ILC’s report, finalized by Martti Koskenniemi and the related study, have been much-debated and remain key resources in thinking-through this important topic.

The Oxford Guide to Treaties (Duncan Hollis, ed.) (Oxford 2012) At the risk of being accused of cheering for the home team, I want to note this volume that Duncan edited because it is a particularly significant contribution to the law of treaties, with 25 essays by many of the leading scholars and practitioners in the field as well as a sort of “bird-watcher’s guide” with examples of treaty clauses. (Truth in advertizing, I have a short piece in this book. No, my own chapter is not a “must read.”)

Legal History

The Oxford Handbook of the History of International Law (Bardo Fassbender and Anne Peters, eds) (Oxford 2012). A deep survey of the history of international law in and across countries and cultures. It goes beyond international legal history as European history and widens the focus to encompass comparative legal histories and how different international legal traditions encounter and interact with each other. Plus a section of legal biographies. A fascinating and much-needed resource.

 

Opinio Juris and the Not-So-Invisible College of International Law

by Peggy McGuinness

When Chris, Julian and I started our modest “conversation” about international law ten year ago, we were not universally praised.  Nor were we instantly accepted.  Who did we think we were, we pre-tenure punks just starting out in this field? And what were people to make of this short-form, internet-based content?  As Chris noted, we really didn’t know what we were doing or where things were going. (In fact, I distinctly remember admiring Roger for his confidence that we were on the right track and that this blogging thing would have legs!)   What Chris, Julian and I did recognize, from the very first days and weeks of the blog, was that we were creating a community.  And that mattered.

When we started, international law was, and on many U.S. law faculties still is, a “niche” area (which is just a polite way of saying that many U.S. law professors find international law esoteric at best, and irrelevant or dangerous at worst).  As Peter rightly notes, international law has mostly “made it.”  But a decade ago, at many U.S. law schools there was just one “internationalist” professor who carried the load of both public and private international law courses.  Long before Facebook, Twitter and Linked-In, Opinio Juris became a “connector” for many of us “lone wolf” international law professors scattered throughout the U.S. Through Opinio Juris we got to know scholars around the U.S. and the globe – friendships and collaborations that existed through the comments section, through email relationships, and, on occasion, an offer or invitation to guest blog.  Along the way, we upended what the late Oscar Schachter referred to as the “invisible college” of international law.  As part of the broader trend of flattening and democratizing the marketplace of academic and policy ideas that technology has made possible, OJ has contributed to making the invisible college not only visible, but accessible.  In 2005, there was almost no other place for a grad or law student to join a comment thread that included professors and government practitioners.  There was almost no other place for a student or junior scholar to have a short opinion essay placed – with almost no time lag and a relatively light editorial hand — to be read by the world.

Our very long list of guest bloggers includes many names that have gone on to found their own international law blogs – some of which endured, some of which morphed into other entities, all of which enriched the conversation and expanded the community.  We always welcomed and supported the emergence of the new blogs because they brought even more voices to the discussion and added structures within this virtual college of international law scholars.  We also partnered with student-edited international law journals to host discussions of articles published in the “old media” as a way of linking slower paced student-edited scholarship to a timely online discussion with multiple commentators.   And it has been wonderful to see some of those student editors join us in the academy in the interim years.  Perhaps most surprisingly, our community grew to include government lawyers and diplomats on the front line of vitally important policy and legal questions.

Ten years is a long time in any “start up.”  But as Opinio Juris enters its mature years, my hope is that the OJ community of contributors, readers, commentators and guests continues to grow in a spirit of dialogue, collaboration and fellowship.