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US House of Representatives Overwhelmingly Calls for War Crimes Tribunal for Syria (with Jurisdiction to Try Americans, Apparently)

by Patrick Wall

[Patrick Wall is studying for an LL.M. in International Law at the Graduate Institute of International and Development Studies, Geneva, as the Sir Ninian Stephen Menzies Scholar in International Law.]

Last Monday, the US House of Representatives overwhelmingly passed—by 392 votes to 3—a resolution ‘[e]xpressing the sense of the Congress condemning the gross violations of international law amounting to war crimes and crimes against humanity by the Government of Syria, its allies, and other parties to the conflict in Syria, and asking the President to direct his Ambassador at the United Nations to promote the establishment of a war crimes tribunal where these crimes could be addressed’. Information on the resolution can be found here, and the full text as passed can be found here.

The resolution was sponsored by Rep Chris Smith, a Republican of New Jersey, and was co-sponsored by one Democrat and three other Republicans. This is something of a personal victory for Smith, who has been advocating for a war crimes tribunal for Syria since at least September 2013 (this Google search links to all articles on his website concerning his advocacy on the issue).

After recalling some of the horrendous violations of international law that have doubtless occurred in Syria—and specifically pointing the finger at the Government of Syria, Bashar al-Assad, Russia, Iran, ‘Iran’s terrorist proxies including Hezbollah’, the Islamic State and the al-Nusra Front—the House:

  • strongly condemns the continued use of unlawful and indiscriminate violence against civilian populations by the Government of Syria, its allies, and other parties to the conflict;
  • urges the United States and its partners to continue to demand and work toward the cessation of attacks on Syrian civilians by the Government of Syria, its allies, and other parties to the conflict;
  • urges the Administration to establish additional mechanisms for the protection of civilians and to ensure consistent and equitable access to humanitarian aid for vulnerable populations;
  • urges the United States to continue its support for efforts to collect and analyze documentation related to ongoing violations of human rights in Syria, and to prioritize the collection of evidence that can be used to support future prosecutions for war crimes and crimes against humanity committed by the Government of Syria, its allies, and other parties to the conflict;
  • urges the President to direct the United States representative to the United Nations to use the voice and vote of the United States to immediately promote the establishment of a Syrian war crimes tribunal, a regional or international hybrid court to prosecute the perpetrators of grave crimes committed by the Government of Syria, its allies, and other parties to the conflict; and
  • urges other nations to apprehend and deliver into the custody of such a Syrian war crimes tribunal persons indicted for war crimes, crimes against humanity, or genocide in Syria, and to provide information pertaining to such crimes to the tribunal.

During his speech in the House urging lawmakers to vote in favour of the resolution, Smith pleaded that ‘the atrocities committed against Syria’s population demand accountability and demand justice’. At a press conference after the vote, he argued that the tribunal would need to be ‘aggressive, transparent, [and] go after all sides’.

There are a few notable elements about the development.

The first is the position of the International Criminal Court in all of this. The preamble to the resolution notes that ‘Syria is not a state-party to the Rome Statute and is not a member of the International Criminal Court’. Smith had the following to say during the post-vote press conference:

An ad hoc or regional court has significant advantages over the International Criminal Court (ICC) as a venue for justice. For starters, neither Syria nor the United States is a member of the ICC, although mechanisms exist to push prosecutions there. The ICC has operated since 2002 but boasts only two convictions. By way of contrast, the Yugoslavia court convicted 80 people; Rwanda, 61; and Sierra Leone, 9. Moreover, a singularly focused Syrian tribunal that provides Syrians with a degree of ownership could significantly enhance its effectiveness.

Although there are certainly no suggestions that Smith is in favour of the United States becoming a member of the ICC, his dispassionate analysis of the possible venues for international criminal trials does stand in stark contrast to the Congress’ well-known hostility towards the ICC.

The second item of note is Smith’s optimism about the possibility of the Security Council actually voting to establish an international criminal tribunal for Syria. Pointing to the fact that Russia did not stand in the way of the creation of the ICTY—despite being a supporter of Slobodan Milošević—Smith argues that a ‘serious and sustained push by the United States and other interested parties’ would result in the passage of a Security Council Resolution creating the tribunal.

This would seem to be unrealistically optimistic. Although there were suggestions during the Balkan conflict that Russia would deploy troops in support of Serbia, this never occurred, so there was never any possibility that the ICTY would investigate or prosecute Russian personnel. In Syria, Russia has become an active participant. Indeed, the very preamble to Rep Smith’s resolution alleges that ‘the Russian Federation…has committed its own violations of international law by leading deliberate bombing campaigns on civilian targets including bakeries, hospitals, markets, and schools’. Smith has not, to my knowledge, explained why Russia wouldn’t veto a resolution that would expose its own troops to prosecution.

Which brings us to the most curious part of the whole saga: the fact that American troops and those of her allies would also fall within the jurisdiction of the proposed tribunal. The proposed tribunal’s rationae personae is said to be ‘the Government of Syria, its allies, and other parties to the conflict’ and Smith said in the post-vote press conference that ‘no one on any side…would be precluded from prosecution’; it would ‘go after all sides’.

As we know, the United States, the United Kingdom and France have conducted strikes against Islamic State targets in Syria and are, thus, ‘parties to the conflict’. Given that the Congress has previously authorised the use of military force to liberate any citizen of the United States or an allied country held by the ICC, it is at least passing strange that the House has so overwhelmingly urged the creation of a new international criminal tribunal that would be empowered to prosecute, for example, an American pilot accused of bombing civilian targets within Syria.

Comment on this possibility has been sought from Rep Smith, but a response has not yet been forthcoming.

Responding to Steve Vladeck and Charlie Savage on Garland

by Deborah Pearlstein

Thanks to Steve Vladeck for the thoughtful post over at Just Security about his take on Garland’s record on Guantanamo cases and related matters. Steve, like Charlie Savage in the Times, is in one sense far more critical of Garland than I. I say “in one sense” because, before jumping back into the details here, it seems apparent we’re all applying somewhat different metrics here in assessing that record, some I fear more problematic than others. (more…)

Worried About Garland’s National Security Law Record? Don’t Be.

by Deborah Pearlstein

On the hopeful assumption the Senate will come to its senses and consider President Obama’s nomination of Merrick Garland to the U.S. Supreme Court on its merits, I wanted to respond to what appears to be some skepticism among progressives that Garland is indeed a good choice for the Court. The Huffington Post, for instance, published an article following the nomination headlined (ominously) that Garland once sided with the Bush Administration on Guantanamo. I was curious, so I decided to look up the cases.
(more…)

When A.I. Met R.O.I.

by Chris Borgen

Over the years a few of us have written issues concerning battlefield robots. (See, for example: 1, 2, 3, 4, 5.)  Sometimes, we had links to remarkable videos of quadruped robots stomping through forests. Those robots and videos were made by Boston Dynamics, a company that started from an MIT research group.

Besides its designing quadruped robots, Boston Dynamics gained further renown when, in 2013, it was acquired by Google as part of that company’s broad push into robotics. Just last month, one of Boston Dynamics’ new videos wen viral; it highlighted its two-legged Atlas robot walking indoors, on snowy hillsides, lifting and stacking boxes, and being pushed by a human (and righting itself). Yesterday, Google announced that it was selling Boston Dynamics. Why? And what does this say about all the prognostications about the rise of the robots, either on the battlefield or in the workplace?

At its most basic level, the story here seems to be as much about the difficulties of post-acquisition integration of business cultures and goals as it is about robotics. An article in Bloomberg Business notes:

Executives at Google parent Alphabet Inc., absorbed with making sure all the various companies under its corporate umbrella have plans to generate real revenue, concluded that Boston Dynamics isn’t likely to produce a marketable product in the next few years and have put the unit up for sale, according to two people familiar with the company’s plans.

After Boston Dynamics’ 2013 acquisition, it was made part of Google’s broader robotics initiative, called Replicant. (Query whether naming the division after the murderous androids of Philip K.Dick’s dystopian classic Do Androids Dream of Electric Sheep, which became the movie Blade Runner, was a good idea.) Bloomberg Business explains:

At the heart of Replicant’s trouble, said a person familiar with the group, was a reluctance by Boston Dynamics executives to work with Google’s other robot engineers in California and Tokyo and the unit’s failure to come up with products that could be released in the near term.

While the issue inside of Google was less about the technology of artificial intelligence (AI) than about the return on the investment (ROI) of the robotics company acquisitions, according to Bloomberg Business the Atlas video did cause concern among some of the public relations folks at Google over whether humanoid robots  would be perceived as taking jobs from real human. Plus, as one PR person put it, some people found the robot “terrifying.” (Yeah, that “Replicant” name-choice seems increasingly like a bad idea. At least they didn’t call the business unit the “Terminator Division.”)

Many  have spent time writing and talking about the legal issues related to the use of remotely controlled or autonomous battlefield robots. The immediate issues stemmed from the use aerial drones, of course, but on the horizon has been the possibility of robots being deployed in ground combat (as opposed to in bomb demolition, or other areas where remotely controlled units are already deployed). I am all for lawyers anticipating issues caused by technological change. But before we get there, there are a host of legal issues concerning the transactions that will support the R&D that will develop this technology. With the potential sale of Boston Dynamics to Toyota, it bears noting that the immediate legal issues may have to do more with international business transactions than international humanitarian law.

An Obama-Trudeau Agreement Conceding Canada’s Claim to the Waters of the Northwest Passage?

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington, where he directs the university’s Arctic Law and Policy Institute.]

In a March 10, 2016, op-ed in the Wall Street Journal, Canadian professor Michael Byers (along with U.S. co-author Scott Borgerson), reprises an earlier suggestion aimed at bringing legitimacy to Canada’s claim of sovereignty over the waters of the Northwest Passage through a bilateral agreement between Canada and the United States. The article, titled The Arctic Front in the Battle to Contain Russia, leads with a photograph of Russian President Vladimir Putin and closes with the warning that the United States and Canada must reach agreement on the status of the waters “before it is too late,” because “there is little to stop an increasingly assertive Russia from sending a warship through” the passage. To Professor Byer’s disappointment, the suggestion is unlikely to attract any support in Washington, D.C.

The “Northwest Passage” refers to the sea route that connects the Atlantic and Pacific Oceans across the top of North America, via waterways through the islands lying between Canada’s northern continental coastline and the Arctic Ocean (displayed in red below). The Canadian government asserts that the Northwest Passage is part of Canada’s internal waters, and subject to the nation’s full sovereignty. In fact, in 2009 the Canadian Parliament renamed the waterways the “Canadian Northwest Passage.” Under Canada’s view, no other nation has the right to navigate in or fly over those waters unless Canada consents.

Arctic

[Image courtesy of geology.com]

Canada’s Claim: In contrast to the conflicting maritime claims in the South China Sea, there is no dispute regarding Canada’s sovereignty over the principal islands along the Northwest Passage (the only exception is Hans Island, a tiny uninhabited knoll in upper Baffin Bay near Greenland, which is claimed by both Canada and Denmark). The dispute concerns the status of some of the waterways surrounding the Canadian islands, and whether other nations enjoy navigation rights in those waters. Over the years, Canadian officials and commentators have relied on a variety of theories to support Canada’s claim that the waters of the Northwest Passage are internal waters. They include a claim to historic title over the waters, announced in 1973; a claim based on straight baselines, first established in 1986 (soon after the U.S. Coast Guard Cutter Polar Sea transited the passage); and occupation of the covering ice by Canada’s Inuit people “from time immemorial.”

In a paper prepared by Canada’s Library of Parliament, the Canadian government author cited Donat Pharand, whom the Library’s author describes as “perhaps the most authoritative Canadian legal expert on the question,” for the conclusion that Canada’s historical title argument is weak. By contrast, the author continues, Pharand concluded that the claim based on straight baselines around the offshore islands (a move that Pharand himself advocated in a 1984 article) is Canada’s “best” claim, and “strong enough” in international law. Other states disagree. The United States protested Canada’s claim to straight baselines in the Arctic immediately after the claim was to go into effect on January 1, 1986 (U.S. Department of State, Limits in the Seas: United States Responses to Excessive Maritime Claims, No. 112). That same year, the member-states of what was then the European Community similarly protested that they could not “acknowledge the legality” of Canada’s straight baseline claim (Id.).

In his most recent attempt to provide a legal basis for Canada’s claim to the waters of the Northwest Passage, Byers sidesteps weaknesses in Canada’s claims under existing international law, and advocates instead that President Obama and Canadian Prime Minister Trudeau negotiate a bilateral agreement by which the United States would acquiesce in Canada’s claims, in order to address the two nations’ “shared vulnerability to naval vessels from Russia and other unfriendly nations.”

Byers’ use of a Russian threat to encourage U.S. acquiescence is curious, given his recent statements elsewhere that dismiss, as “hypothetical,” security concerns about Russia raised by others. For example, in a late February 2016 interview by Radio Canada International, Professor Byers argued that Russia has “shown no sign of any inclination towards aggression in the Arctic”; a far cry from the “battle front” posed by an “increasingly assertive Russia” characterization he now offers to spook the U.S. into an agreement.

The Consistent U.S. Position: Recent White House statements make clear that the United States is not going to acquiesce in Canada’s claims to sovereignty over the waters of the Northwest Passage. As reaffirmed in the 2009 U.S. Arctic Region Policy presidential directive, the United States’ position vis-à-vis the status of the Northwest Passage has been clear:

Freedom of the seas is a top national priority. The Northwest Passage is a strait used for international navigation…; the regime of transit passage applies to passage through those straits. Preserving the rights and duties relating to navigation and overflight in the Arctic region supports our ability to exercise these rights throughout the world, including through strategic straits.

Far from signaling a willingness to retreat from its objection to Canada’s excessive maritime claims in the Arctic, U.S. objections to the claims were recently reiterated. Just last week, the Obama White House expressed what might be seen as impatience with excessive maritime claims in the Arctic. In the March 2016 Implementation Framework for the National Strategy for the Arctic Region, the Obama Administration laid out a plan to “promote international law and the freedom of the seas” in the Arctic. The Framework asserts that in the Arctic “the United States will exercise internationally recognized navigation and overflight rights, including transit passage through international straits, innocent passage through territorial seas, and conduct routine operations on, over, and under foreign exclusive economic zones, as reflected in the Law of the Sea Convention” (emphasis added). The Obama Framework goes on to pledge specific steps in the coming years that will include conducting routine Arctic maritime exercises, operations and transits consistent with international law; documenting related U.S. diplomatic communications and Department of Defense freedom of navigation operations; and delivering strategic communications at appropriate opportunities “to reflect U.S. objections to unlawful restrictions in the Arctic on the rights, freedoms, and uses of the sea and airspace recognized under international law; and to promote the global mobility of vessels and aircraft throughout the Arctic region consistent with international law.”

It should also be noted that the kind of bilateral agreement between the U.S. and Canada Byers advocates would have no effect the legal status of the waters under UN Convention on the Law of the Sea (UNCLOS). As a party to UNCLOS, Canada is strictly limited by Article 311 of the Convention in the extent to which it can attempt to alter the effect of UNCLOS by bilateral treaties. Any attempt to do so would have no effect on the navigation rights of Russia, the EU member-states, or any other state. Moreover, any such bilateral agreement would likely be viewed by the other coastal state members of the Arctic Council as inconsistent with the spirit of the 2008 Ilulissat Declaration, in which both Canada and the United States agreed that the “law of the sea,” not bilateral side agreements, provides the relevant rules regarding freedom of navigation in the Arctic.

Ironically, in arguing that a bilateral agreement between the U.S. and Canada is needed to bring legitimacy to Canada’s Northwest Passage claims and provide a legal basis for preventing Russia from sending warships through the passage, Professor Byers has implicitly acknowledged the weakness in Canada’s claim absent such an agreement, while at the same time undermining his otherwise consistent position that Russia poses no threat to security in the Arctic.

Seeking the Regulatory High Ground: the International Civil Aviation Organization and Commercial Spaceflight

by Chris Borgen

In 1958, Air Force Chief of Staff Thomas D. White wrote: “For all practical purposes air and space merge, form a continuous and indivisible field of operations.” White later coined the term “aerospace” and used it in a Congressional hearing. Later it was used in policy papers to explain why the U.S. Air Force would also have the responsibility for space issues. (William Burrows, The New Ocean, 248.)

The International Civil Aviation Organization, a specialized agency of the UN, has just made a similar giant leap from air into space. Agence France Press reports that in a March 15 speech at the Second Annual Aerospace Symposium (there’s that word again) co-sponsored by ICAO and the UN Office on Outer Space Affairs (UNOOSA), ICAO Council President Olumuyiwa Benard Aliu said:

The International Civil Aviation Organization “recognizes that sub-orbital and outer space flights will foster new tourism and transport markets, and that investments in related research and development remain at a very healthy level,”…

“Personally, as an engineer, I am very excited to see the dream and theory of normalized space flight now becoming such a tangible reality,” he told an aerospace symposium in Abu Dhabi.

In making its case, the agency noted an uptick in the number of spacecraft designs that have made the leap from concept to reality, saying more will follow.

As SpaceNews put it: ICAO is “spreading its wings into commercial spaceflight.” Thinking holistically about the continuum of air and space activities does make sense. Virgin Galactic’s space planes and SpaceX’s and Blue Origin’s returnable, reusable rockets will have significant activities within the atmosphere as well as in space. And, so, we see domestic and international organizations adapting.

That adaptation is itself an interesting story. ICAO’s mandate is focused on aviation. Its vision statement is to “[a]chieve the sustainable growth of the global civil aviation system.” Even its 2014- 2016 strategic objectives make no mention on of space– or aerospace. However, Agence France Press reports that at the ICAO/ UNOOSA conference, the ICAO leadership stated that:

Rules must be put in place soon to ensure safety and security in space, as well as prevent the creation of a patchwork of regulations by individual states..

The agency suggested adapting the existing regulatory framework for aviation, for which the ICAO and national governments are responsible.

ICAO, as it stands, does not have enforcement authority. It studies,  fosters coordination and  develops policies and standards.

While there has been a focus on certain potential future space activities, such as asteroid mining, and their relation to the Outer Space Treaty, is there a need for a new treaty covering launches and activities such as space tourism? In the U.S., there seems to be a concern that too much regulation of the space tourism and orbital launch services could stifle the nascent industry. According to R&D:

Both the Federal Aviation Administration and the recently passed commercial-space competitiveness legislation from the U.S. Congress keep their distance from regulating space tourism, “as long as passengers receive explicit warnings about the hazards and the vehicles have basic safeguards,” the Wall Street Journal reported.

And so there are likely two discussions that will be taking place in the coming months. The first will concern the an institutional question: should ICAO become a norm-setter in regards to space activities? The second will address a set of regulatory issues: do we need a new treaty on aerospace activities, space tourism, and launch activities? Could consultation and coordination among national regulators be enough?

Stay tuned…

Transcript of Haiti Cholera Appeal Hearing

by Kristen Boon

A transcript is now available for the Haiti Cholera Appeal:    Georges, et al. v. UN Oral Argument_ActiveUS(153242982)_ActiveUS(1)-Final

In addition, the audio recording is available here.

Of particular note were questions from the judges that addressed (i) whether domestic courts should have the right to determine the adequacy of remedies in tort actions involving the UN, (ii) why states parties have not done more to insist the UN create the mechanism envisioned by Art. 29 of the CPIUN, (iii) how this would be dealt with in the US if it had been the US army that had introduced cholera; and (iv) whether an ICJ advisory opinion is possible.

For my take on this case and the scope of UN immunities in mass torts cases, see  The UN As Good Samaritan:  Immunity and Responsibility,  in the most recent volume of the Chicago Journal of International Law.

Who Says America Can’t Agree on Anything Anymore: Every US Presidential Candidate is in Favor of U.S. Drone Strikes

by Julian Ku

In a tumultuous U.S. presidential campaign season, it is easy to conclude that the U.S. is hopelessly polarized between a proto-fascism and a proto-communism. But while there may be some truth to that observation with respect to immigration and economic policy, it is worth noting that the presidential candidates of both parties agree on many issues of foreign policy, even those that are controversial among international lawyers.

For instance, it is worth noting that all of the presidential candidates support the current U.S. program of drone strikes against Al-Qaeda and ISIS terrorists.

From a legal perspective, the U.S. program of lethal drone missile strikes against ISIS and Al Qaeda terrorist targets is controversial. Not only is the domestic legal authority to strike at ISIS targets under the September 11, 2001 authorization for the use of military force questionable, but the international legality of such strikes in countries such as Pakistan, Syria, Yemen, and Libya is uncertain because none of those four countries have explicitly given consent to such strikes. More significantly, legal critics of the drone program have questioned whether its use complies with the proportionality and other requirements of international humanitarian law due to the number of civilian casualties injured or killed in such strikes.

All of these legal criticisms are plausible, but none of the remaining U.S. presidential candidates are seriously troubled by these criticisms. None have pledged, for instance, to seek an additional authorization for the use of force from Congress to clarify the legal authority for such strikes against ISIS. None have suggested they would cut back or eliminate the program in any meaningful way.

Both of the remaining Democratic presidential candidates, for instance, have publicly expressed support for the program as it is currently being implemented. Hillary Clinton, as might be expected from a former Obama administration cabinet member, has endorsed such strikes on both a policy and legal basis. But so has her chief Democratic rival Bernie Sanders:

In an interview with NBC’s Meet the Press scheduled for broadcast on Sunday, host Chuck Todd asked the independent senator from Vermont if drones or special forces would play a role in his counter-terror plans.

“All of that and more,” Sanders said.

Asked to clarify, he added: “Look, a drone is a weapon. When it works badly, it is terrible and it is counterproductive. When you blow up a facility or a building which kills women and children, you know what? … It’s terrible.”

Todd asked Sanders: “But you’re comfortable with the idea of using drones if you think you’ve isolated an important terrorist?”

Sanders answered: “Yes.”

 

Indeed, there has arguably been more criticism of the drone program from the Republican presidential candidates, although that criticism is largely that the program doesn’t go far enough.

Republican frontrunner Donald Trump has not specifically addressed the drone program (surprise, surprise!). But Trump has famously called for counter-terrorism activities worse than torture, including the deliberate killing of terrorists’ families (presumably through drone strikes). Although Trump has partially reversed himself in a recent statement pledging to comply with all U.S. “laws and treaties” relevant to counterterrorism operations, none of this suggests he is going to cut back. (But this is Donald Trump, so who the hell knows!)

U.S. Senator Ted Cruz, currently Trump’s main rival, has been primarily concerned with limiting or prohibiting the use of drone strikes against U.S. citizens. Cruz, and has sponsored legislation to prohibit drone strikes on U.S. citizens on U.S. soil (with one exception).

Senator Marco Rubio, currently in third place, has also sponsored legislation to require independent review of drone strikes against U.S. citizens. Governor John Kasich, the last remaining GOP candidate, has proposed shifting drone strikes away from the CIA to the military. This last proposal may be the most significant drone reform proposal on the table from any of the remaining candidates. (Kasich is in fourth place on the Republican side).

So who says Americans can’t agree on anything anymore. The U.S. public, and its leading presidential candidates, want drone strikes to continue. All seem to feel like the current drone program is legal under U.S. and international law.  (I should hasten to add that I agree with them on the legal point, although I do think there are many reasonable questions about the program.)  In any event, for U.S. presidential candidates, the only question is whether to do more, not less.

Surprise Hearing in Haiti Cholera Case Appeal

by Kristen Boon

In a surprise announcement late last week, the Second Circuit granted a hearing in the Haiti Cholera Case.  The hearing will take place tomorrow, and the lawyers will have had only 4 days to prepare.    While no reasons were given as to why the hearing was granted so suddenly, the speculation is that upon reading the papers, at least one or more judges decided a hearing was warranted.

If you are in New York on March 1, and want to attend the hearing here are the details:

What: Second Circuit appeals hearing in Georges v. United Nations.

When: Tuesday, March 1, 2016 at 2pm

Where: Thurgood Marshall U.S. Courthouse 17th Floor, Room 1703 40 Foley Square New York, New York 10007

Each side will be granted 10 minutes.

As soon as a transcript is available, I will post it on OJ.

St. John’s Law School Search: Assistant Dean for Graduate Studies

by Peggy McGuinness

St. John’s University School of Law in New York City is conducting a search for a new Assistant Dean for Graduate Studies to head up our LLM programs and other international non-JD programs and initiatives.  Here is the formal announcement with key contact information, but feel free to reach out to me directly if you are interested in learning more about it.

St. John’s Law School is now looking for an Assistant or Associate Dean for Graduate Studies, who will be the senior administrator responsible for the development and management of initiatives related to non-J.D. degrees and programs at the Law School. The ADGS will oversee four existing LL.M. programs: (1) U.S. Legal Studies for Foreign Trained Lawyers (which qualifies graduates to sit for the New York bar exam); (2) Transnational Legal Practice; (3) International Sports Law Practice; and (4) Bankruptcy.  We are looking for candidates with a strong entrepreneurial spirit and keen business sense to develop new degree programs and opportunities as market conditions permit. This is primarily a leadership/management position and will not lead to a tenure-track appointment. The ADGS will develop linkages and partnerships with foreign and domestic educational institutions, bar associations, law firms, and other institutions. The ADGS will also be the senior administrator in the graduate programs area and will manage an office that includes three directors (including one who spends significant time recruiting students in Asia), an office assistant, and a Europe-based consultant.

A J.D. (or J.D.-equivalent from a foreign jurisdiction) and admission to practice law in at least one U.S. jurisdiction and/or significant experience in higher education administration is required.

Interested candidates should submit letters of inquiry and CVs to lawfac [at] stjohns [dot] edu

One more time all together: Obama wants to close Gitmo

by Jens David Ohlin

Just a minute ago, President Obama announced yet again his intention and desire to close the detention facility at Guantanamo Bay. There are no particular surprises here. From what I heard listening to his comments, the plan is merely a renewed push to get Congress to cooperate on closing the prison. Specifically, Obama suggested that the detainees who cannot be released should be transferred to a domestic facility, though he declined to specify which one.

Obama made several points in defense of this plan. He conceded that some members of the public are scared about the possibility of detaining terrorists on US soil, though he noted that we already do that because several terrorists convicted in Article III courts are already housed in federal prisons. Moreover, the federal government has housed them in the US without incident, which demonstrates, according to Obama, that domestic detention is safe.

Furthermore, Obama also tried appealing to fiscal conservatives, noting that the transfers would save the government between $65 milliion to $85 million per year. Over a span of 20 years, that adds up to a $1.7 billion savings. So domestic detention is not only safe, it’s cheaper too.

Obama also announced that although military commissions would remain an option for detainees who are captured on the battlefield in active theaters, for all others, Article III courts are the preferred option for terrorism prosecutions.

There was little discussion of how to clear the political log jam that remains over the fate of Guantanamo, though the President said that he was “clear-eyed” about the challenges of achieving the result he wanted: “The politics of this are tough,” he said, but “this plan deserves a fair hearing.” He noted that even George W. Bush wanted to close the prison.

Of course, one solution, which he did not discuss, would be the use of an executive order to close the Guantanamo facility. I’m very curious to hear readers’ thoughts regarding this possibility. One, I’m interested in predictions about whether he might take such a drastic step in the last months of his presidency. Second, I’m interested in whether it would provoke a miniature constitutional crisis, with Obama using his executive power to close the facility but Congress using its spending power to prevent detainee transfers to domestic soil. What result then?

UPDATE: Transcript of the Background Press Call is here.

New Edition International Law Frameworks

by Kristen Boon

Chimene Keitner has revised and updated David Bederman’s 2006 treatise on International Law Frameworks. This highly readable (and short) text addresses key cases, core disputes, and essential treaties in international law. Following Professor Bederman’s passing in 2011, Keitner was asked to step in and take over the production of a new edition.   In the preface to this 4th edition, Chimene describes how she has updated and adapted the book:

The approach of this edition is consistent with that of previous editions, but I have modified the structure in places and added substantial discussion of recent developments. The volume is still divided into four parts. The first part provides an overview of the international legal system and discusses the nature, history, and sources of international legal rules, including treaties and custom. It also introduces mechanisms for the peaceful resolution of international disputes, including the role of the World Court (previously saved for the end of the book).

The second part focuses on the subjects of international law, including but not limited to States. Although somewhat exaggerated, there is much truth to the view that the “old” law of nations considered only States to be worthy of legal attention. Today, individuals, juridical persons (including business associations), and organizations may also be considered “subjects” of international law that can bear both rights and responsibilities.

The third part canvasses substantive areas of international legal regulation, including human rights (with a new discussion of global migration), as well as “objects” of international control such as land and maritime boundaries, the international environment, and the global economy. It also considers the law of countermeasures and the laws governing the resort to, and use of, armed force. The chapters on the use of force and armed conflict include new reflections on the role of government lawyers and consider new developments in substantive law in an era of drones and “cyberwarfare.”

The fourth and final part considers the relationship between domestic law and international law. This is the portion of the book most closely geared to the demands of U.S. law practice. At the same time, it introduces readers to other countries’ views on issues such as jurisdiction, immunities, and related considerations in the conduct of foreign policy. A new concluding chapter reflects on key challenges and opportunities for today’s international lawyers, including managing global pandemics, regulating cyberspace, and addressing global inequality.

Many of us have used this book as a supplement, a primer, or even as a core textbook to be read in conjunction with primary source materials.  If you would like to pre-order or request a complementary copy of the book, here is the link.