In association with the International Commission of Jurists

General

24 Jul

[Armin von Bogdandy is Director and Dana Schmalz is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law] In another seminal piece, Eyal Benvenisti continues his well-balanced middle course between utopian cosmopolitan aspirations and resigned state pragmatism, this time by reconstructing contemporary sovereignty. Like many others, he considers the Westphalian model of state power to be neither an appropriate description of today’s world order nor a normatively appealing model for the future. Starting from an assessment of democratic deficits and dilemmas arising from limited space and resources, Benvenisti shows why a different conception of sovereignty is morally required. He then accomplishes a brilliant reconstruction of important court decisions and doctrinal evolutions that support his normative findings. Within this reconstruction, Benvenisti integrates a great variety of legal phenomena, ranging from a vessel’s right to innocent passage, to consultation duties in WTO-law, to the responsibility to protect. These normative and legal reconstructions are impeccable, and we are sympathetic to the general thrust of Benvenisti’s argument. However, we suggest a more pluralist approach, mainly in two respects. For one, we would complement Benvenisti’s private law paradigm with a stronger focus on international public authority, which plays little role in his reconstruction. Depending on the subject matter and the institutions available, some issues might be resolved more effectively and inclusively through international institutions. At the same time and on a more basic level, we suggest construing the international sovereignty of a country in a more pluralist manner, taking into account its relevant constitutional law. We think that Benvenisti’s legal reconstruction can be thickened, in this way, while avoiding his problematic reliance on humanity as a source of public authority. International sovereignty has changed from a founding concept to a functional concept: once, international sovereignty provided a point of closure where legal thinking could stop. Georg Jellinek perfectly captured this paradigm in 1882 when he stated that everything could be explained “through sovereignty and from sovereignty”. Today, as Benvenisti’s analysis shows, it is far better to conceive of international sovereignty functionally, so as to serve other principles, such as self-determination, human rights, or reasonable allocation of resources. Pushing Benvenisti’s reconstruction further, we propose that the functional concept should also be conceived as relative: The specific meaning of a state’s international sovereignty should be informed by its constitutional law and practice. Benvenisti’s article perhaps presents the world in an overly uniform manner. To start with his fabulous image of the “small apartment in the densely packed high-rise”: Great as the picture is, it neglects huge differences between states. Sticking with the metaphor, we might say that some owners possess special voting rights in the owners’ association, have special access to the common property, and own a mansion out of town, to which they can escape when fed up with the neighbors. Others, by contrast, do not have such privileges, and still others have pooled their rights for common exercise. On a more legal note, the constitutional orders of China, Germany, or Lebanon enshrine deeply different understandings of the international order and the country’s place therein. A reconstructive proposal should take those differences into account. Accordingly,  international sovereignty could be informed by the respective constitutional openness towards common projects and willingness to recognize shared responsibility. Yet, how can such relativization take place without endangering the autonomy of international law and the equality of states under international law?
|
24 Jul

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.] We live in a shrinking world where interdependence between countries and communities is intensifying. This interdependence tests the limits of the traditional concept of sovereignty which crystallized at a time when distances...

|
24 Jul

South Sudan’s President Salva Kiir Mayardit has fired Vice President Riek Machar Teny and all his cabinet ministers. Australia is to investigate reports that asylum seekers at one of its detention camps in Papua New Guinea are being raped and tortured. Syrian rebels claim they have captured the entire western area of Aleppo. Russian and Iranian media are reporting that Vladimir Putin will meet Iran's...

|
23 Jul

A top UN envoy, Leila Zerrougui, special representative of the Secretary-General for Children and Armed Conflict, has warned officials and anti-government fighters in Syria risk prosecution as war criminals for atrocities against children. The US House Intelligence Committee says it is now willing to supply weapons to Syrian rebels despite the risk of their ending up with al-Qaeda allies. Additionally, top US military...

|
22 Jul

We are pleased to host the American Journal of International Law on-line symposium on the lead articles of the new issue of the AJIL, which were written by Leila Sadat (Washington University) and Eyal Benvenisti (Tel Aviv University). Today and tomorrow there will be a discussion of Leila Sadat's article, Crimes Against Humanity in the Modern Age. The précis of her piece explains...

|
22 Jul

The ICC's Chief Prosecutor Fatou Bensouda has said that attacks on UN peacekeepers in the Darfur region of Sudan may constitute war crimes. European Union governments agreed today to put the armed wing of Hezbollah on the EU terrorism blacklist in a reversal of past policy fuelled by concerns over the Lebanese militant movement's activities in Europe. French Interior Minister Manuel Valls...

|
20 Jul

This week on Opinio Juris, we continued our Emerging Voices symposium. Patricia Tarre Moser started the week with her proposal for the unilateral withholding of sovereign immunity as a countermeasure against jus cogens violations. Scott McKenzie wrote on the application of international water law principles to the simmering tension between Egypt and Ethiopia on the latter's decision to dam the Nile. Daniel Seah...

|
19 Jul

The ABA Journal is seeking nominations for its annual list of the 100 best legal blogs. We can’t nominate Opinio Juris because you can't nominate your own blog, but if you like our blog, find it useful or otherwise would like to spread the word, we'd be happy if you nominate us! Readers interested in nominating a particular blog for the 7th annual...

|
18 Jul

The many tragedies that have unfolded in Syria and particularly, the failure of the international community to intervene in a prompt manner, have led to a series of new analyses on the scope and application of certain doctrines in international law. Take for example, the argument made by Laurie Blank and Geoffry Corn, in their forthcoming Vanderbilt Journal of Transnational Law...

|
18 Jul

The UN is reviewing support to Democratic Republic of the Congo's army units accused of desecrating the corpses of rebels and mistreating detainees. Palestinian president Mahmoud Abbas will confer with key Palestinian leaders today about a possible resumption of peace negotiations with Israel after an almost three-year freeze. Steam or vapors appear to be coming from a damaged reactor building at Japan's tsunami-crippled...

|
17 Jul

In his book Grand Strategies: Literature, Statecraft, and World Order, former diplomat and Yale professor Charles Hill argues that The great matters of high politics, statecraft, and grand strategy are essential to the human condition and so necessarily are within the purview of great literature. Tolstoy’s War and Peace treats them directly. What has not been much recognized is that many...

|
17 Jul

About the same time (April 2013) that the US Supreme Court released its opinion in Kiobel v. Royal Dutch Petroleum, the Court also granted review of a Ninth Circuit case, Bauman v. DaimlerChrysler. Just ahead of the July 4th weekend, the Obama administration submitted what John Bellinger, in a lucid post over at Lawfare, describes as a "remarkably strong" amicus brief urging the Court to
reverse the Ninth Circuit’s decision in Bauman v. DaimlerChrysler.  The Justice Department argued that the Ninth Circuit’s 2011 decision finding personal jurisdiction in California over Daimler AG, a German company, for the actions of a subsidiary in Argentina, was “seriously flawed” and contrary to the Supreme Court’s subsequent 2011 decision in Goodyear.  The brief faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to “answer in that State for any claim against it, arising anytime, anywhere in the world.”
The background to Bauman v. DaimlerChrysler, Bellinger explains, is that in May 2011 a Ninth Circuit panel
held that that Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act  (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States.  Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.
I agree with Bellinger that the likelihood, following Kiobel, is that the Court is moving to restrain jurisdictional assertions by Federal courts, and is pushing back toward stricter grounding in the traditional bases of jurisdiction by national courts.  My own larger, political view is that this is connected to a perception that although broad assertions of US jurisdiction through such vehicles as the Alien Tort Statute over foreign parties for acts on foreign territory can certainly be framed as enforcing universal international law through national courts, it is better understood as assertions of something quite different - what I've sometimes called the "law of the hegemon."  That is an increasingly contested position as a matter of international politics spilling over into international law, and between the rise of new great powers and the Obama administration's political embrace of decline, it seems to me unsurprising that the Obama administration would embrace a more traditional, much more restrictive understanding of jurisdiction. But it also seems the Court is also generally on board with this pull-back.  As Bellinger says, many observers (me included) believe that
the Court would not have accepted the case unless it plans to reverse the Ninth Circuit.  Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.
I agree.  Despite the obvious clash of approaches between the Roberts majority and the Breyer minority in Kiobel, they do have an important common ground - an intention to limit extraterritorial jurisdiction through a stricter application of the traditional bases of jurisdiction.
|