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The International Criminal Court’s Assembly of States Parties Meetings: Challenges to the Work of the Court

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, The Center for Global Affairs, NYU-SPS. She attended ICC ASP 14 on behalf of the American NGO Coalition for the ICC and the American Branch of the International Law Association International Criminal Court Committee. The opinions expressed are not necessarily those of AMICC or the ABILA.]

From November 18-27, delegates of states that are parties to the International Criminal Court’s Rome Statute, as well as NGOs and delegates of non-State Parties gathered in The Hague for the 14th annual Assembly of States Parties meetings.

While much of the ASP’s business carried on as usual, two threats to the Court’s work emerged.
The first came in the form of a Kenyan proposal seeking an interpretation or reaffirmation that Rule 68’s amendment made at the ASP in 2013 would not apply retroactively. On its face, the measure Kenya proposed looked harmless enough. The ASP is indeed the body before which amendments to the ICC’s Rome Statute and Rules of Procedure and Evidence are to be brought after prior presentation to the New York working group on amendments.

But the unstated purpose behind Kenya’s proposal appeared to relate to the pending cases against Kenyan Deputy President William Ruto, and Joshua Arap Sang. Each is charged with crimes against humanity in connection with post-election violence in Kenya’s 2007-8 presidential elections in which over 1,000 persons died. (The measure may also have been indirectly aimed at insuring that a prior case against Kenyan President Uhuru Kenyatta – as to whom the charges have been withdrawn without prejudice – will not be reinstated.) A likely goal is to ensure that prior recorded witness testimony of witnesses who subsequently became “unavailable” could not be used in evidence. Given serious and credible allegations of witness tampering and disappearances—there are pending proceedings related to attempts to corrupt ICC witnesses in the Kenya cases—the proposal could be aimed at keeping out information potentially relevant to pending trials. To make matters worse, the issue of whether the Rule 68 amendment applies retroactively is currently pending before the ICC’s Appeals Chamber in the Ruto & Sang case.

In oral remarks responding to Kenya’s proposal on Thursday November 19 and then again in the closing plenary session, various States made strong statements about the need to preserve the Court’s independence and not interfere in matters pending before the Court. Yet, it was disheartening to later see delegates willing to attempt to mollify the Kenyan delegation by negotiating language favorable to the Kenyan position. If a matter really is sub judice, there should be no ASP role, period. (The only bright spot is that the language negotiated was included in a final report summarizing discussions of the Assembly, and not in a formal assembly resolution.) What the Court will eventually make of all of this, is, of course, another matter – as the judges do not necessarily need to accept even Rule or Statutory amendments from the ASP if they deem them inconsistent with the Rome Statute or beyond the ASP’s authority. Moreover, judges would likely accord language from a report little weight, if any.

Kenya’s second proposal was to develop an ad hoc mechanism of independent jurists to advise the Prosecutor in her selection of Prosecution witnesses. There is absolutely no precedent for such a measure, which clearly is aimed at stymying the Prosecutor’s work. Such an attempt to interfere with Prosecutorial independence appropriately met with little enthusiasm from other state delegations.

The theatrics of Kenya’s presentation of these proposals on November 19 were amplified when the more than 80-person Kenyan delegation applauded loudly to all of Kenya’s statements. Most of the rest of the room then applauded the interventions by other states who insisted on the Court’s independence, and not interfering in matters pending before the Court. The effect was somewhat like an audience at a sporting event, cheering their two respective teams. It seemed unseemly to say the least, and one can only wonder at the choice of allowing a delegation to be that large. Most other States sent at most a handful of representatives.

Another threat to the Court’s work was far more ordinary and predictable but also serious: seven States Parties holding out not to give the Prosecutor the budget she requested as necessary to do her work. With the Court active in 8 situation countries, with 23 pending cases, and preliminary examinations across the globe, now is not the time to nickel and dime the Prosecutor of the world’s worst atrocity crimes. The Court has a bigger docket than it ever has had before. The blame here also should be extended to the U.N. Security Council, which referred two situations to the Court (those in Libya and Darfur) but refused to pay for them, and has failed to insure that any of the outstanding arrest warrants or other transfers related to the cases are executed. At the ASP, the Prosecutor had requested a budget increase of 17%, but only received a 7.1% increase. If she now has to curtail meritorious investigations, which is anticipated, we have only States to blame, and not the Prosecutor.

These ASP gatherings of NGO’s and State delegates from around the world are in some ways heartening – to see a global network of individuals committed to international criminal justice, and the prosecution of the worse atrocity crimes through the ICC. Complementing the formal sessions are numerous “side events” that range the gamut from attempting to ensure justice locally in Africa, to strengthening the ICC’s work related to victims, and attempting to ensure accountability for crimes in Syria. Yet, the ASP meetings are also disheartening to see such attempts at political interference in the Court’s work (and budgetary shortsightedness). It is also disappointing, although perhaps understandable, to see States attempting to pacify delegates in order to avoid having their State potentially withdraw from the Rome Statute. One wonders whether that Faustian bargain is worth striking.

Crunch Issues in Paris

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 third 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.]

In an earlier post, I expressed cautious optimism that the Paris conference will succeed in adopting a legal agreement that requires countries to formulate and submit emission reduction plans, provides for international transparency and review, and establishes a process for countries to periodically ratchet up their efforts. But although the broad outlines of the agreement have been apparent for several years, a number of important issues remain to be resolved, on which the conference could still founder.

Here’s a brief summary of the “crunch” issues:

• How to reflect the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC)?

The issue of differentiation has been one of the most controversial since the inception of the UN climate change regime, and plays out across all of the different elements of the Paris agreement: mitigation, adaptation, finance, and transparency. It’s clear that the Paris agreement will move away from the rigid differentiation between Annex I and non-Annex I countries found in the Kyoto Protocol, towards a more global approach. But will any vestige of the Annex I/non-Annex I dichotomy remain?

Developed countries mostly argue that the concept of nationally determined contributions (NDCs) implies self-differentiation and that this self-differentiation is sufficient. But many developing countries would like some continuation of the categorical, annex-based approach found in the UNFCCC and the Kyoto Protocol. The 2014 US-China joint announcement added the phrase “in light of different national circumstances” to the principle of CBDR-RC, apparently to give it a more dynamic quality. This formulation was included in the Lima Call for Action (.pdf), and will almost certainly find its way into the Paris Agreement. But a general reference to CBDR-RC will likely not be enough to satisfy developing countries, so expect to see some additional language on differentiation in particular articles, for example, those on mitigation and transparency.

I don’t see the US and other developed countries accepting a reference in the Paris agreement to the UNFCCC annexes, which they view as outmoded, but my guess is that negotiators will find some language to bridge the gap – for example, in the context of mitigation, a principle of progression, which provides that countries that have previously pledged absolute economy-wide targets should continue to do so and that all countries should aim to do so over time. This formulation, in effect, differentiates between Annex I countries (which all pledged absolute, economy wide emissions targets in Copenhagen) and non-Annex I countries, without any explicit reference to the annexes, and thus might be acceptable to both sides.

• Whether to include a long-term decarbonization goal?

In Copenhagen, states agreed to a goal of limiting climate change to no more than 2° C. There is considerable – but not universal – support for supplementing this goal with a long-term decarbonization goal, like that included in the G-8 Leaders Statement last June, to provide a signal to business and investors. Many countries would like to include a decarbonization goal in the Paris agreement itself, but if consensus cannot be reached to do so, a possible fallback would be to include the goal in the Conference of the Parties (COP) decision that adopts the Paris agreement, which would give the goal a slightly lesser political status.

• Whether to include a commitment that parties implement their nationally determined contributions (NDCs)?

A central issue in the negotiations has been what commitments to include with respect to NDCs. There is broad agreement to include procedural commitments – for example, to formulate, submit, and periodically update NDCs. And even countries that seek to make NDCs legally binding seem to accept that the agreement will not commit countries to achieve their NDCs (thus distinguishing the Paris agreement from the Kyoto Protocol). But the European Union and some developing countries wish to include a commitment relating to implementation of NDCs.

A duty to implement, as compared to a duty to achieve, is an obligation of conduct rather than result. But if the Paris agreement contained a straightforward obligation on parties to implement their NDCs, then the difference between the two approaches appears small, since, arguably, the test of whether a state has implemented its NDC is whether it has achieved its NDC. This has led to a search for softer formulations of the commitment to implement: for example, a commitment to adopt measures “aimed” or “intended” to implement a country’s NDC, or a commitment to adopt implementing measures “related to” a country’s NDC. The trick is to find some formulation that (more…)

On the Legitimacy of the Settlements: A Legal and Historical Perspective

by Lorenzo Kamel

[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]

It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.

The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.

In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.

But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”.

On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.

This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the

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Reminder: Deadline for the Fifth Annual Junior Faculty Forum

by Kevin Jon Heller

JFF2016_CoverOnlyJust a reminder that the deadline for applications for the Fifth Annual Junior Faculty Forum for International Law, which will be held at NYU from June 27-29, 2016, is fast approaching. Applications are due December 15. Those who are keen to make an application can find the details of the application procedure set out here. As always, I highly recommend that young scholars apply!

The Legal Character of the Paris Agreement: A Primer

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 will be in Paris for the climate change negotiations. This is the second 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.]

Confusion reigns supreme about the legal character of the Paris agreement.  Last month, Secretary of State Kerry made waves in Europe when he said that the Paris agreement would “definitely not be a treaty.”  This prompted President Hollande to respond, “If the deal is not legally binding, there is no accord, because that would mean it’s not possible to verify or control commitments that are made.”  And just yesterday, the New York Times reported that the Paris agreement will not be “a legally binding treaty” that needs ratification by governments to have force, but will instead consist of “voluntary plans” that “avoid the legal definition of a treaty.”

So here is a quick primer on the legal character of the Paris Agreement:

First, there appears to be no question that the agreement will be a “treaty” within the meaning of the Vienna Convention on the Law of Treaties, that is “an international agreement concluded between States in written form and governed by international law” (VCLT art. 2.1(a)). As the VCLT expressly states, whether an agreement constitutes a treaty does not depend on what the agreement is called.  Rather, it depends on whether the agreement’s contents manifest an intent by the parties that the agreement be governed by international law. The current negotiating text includes final clauses addressing such issues as signature, ratification, entry into force, and depositary, which make sense only if the parties wish to make the agreement a treaty under international law.

Second, although the VCLT provides that agreements are binding upon the parties and must be performed by them in good faith (VCLT art. 26), not every provision in a treaty necessarily creates a legal obligation, the breach of which entails non-compliance. Often, treaties contain a mix of mandatory and hortatory elements.  For example, the emissions target set forth in Article 4.2 of the UN Framework Convention on Climate Change was expressed as an “aim.”  So, even though the Paris agreement will be a treaty, not every element of it need be legally binding on the parties.  For example, countries’ “nationally-determined contributions” (NDCs) – that is, their emission reduction targets – could take the form of a political aim rather than a legal obligation.

Third, the term “treaty” has a narrower meaning in US law than in international law, referring to agreements that the President sends to the Senate for advice and consent to ratification under Article II of the Constitution.  The vast majority of treaties in the international sense are not adopted as Article II “treaties;” rather they are adopted as “executive agreements,” in most cases with the approval of Congress, but in some cases by the President acting alone.  So even if the Paris agreement is a treaty under international law, it need not be adopted by the United States as a “treaty” under Article II of the Constitution.  (For more on the issue of US adoption, see Julian Ku’s recent post, A Treaty or Not a Treaty.)  This may have been what Secretary Kerry meant when he said that the Paris agreement would “definitely not be a treaty.”

Fourth, whether the Paris agreement is adopted by the United States as an Article II treaty, with the advice and consent of the Senate, or as an executive agreement, by the President acting alone, would not affect its character under international law or the ability of a future President or Congress to withdraw.  Regardless of the procedure for adoption, as a matter of international law, the right of the United States to withdraw would be governed by the agreement’s withdrawal clause, and, as a matter of US law, US participation could in practice be terminated by a future president through executive action or by Congress through the enactment of a later-in-time statute.

Finally, although most people, including President Hollande, assume that the Paris agreement will be more effective if countries’ NDCs are legally binding, this is not necessarily the case.  The effectiveness of an international regime is a function of three factors:  (1) the ambition of its commitments; (2) the level of participation by states; and (3) the degree to which states comply.   Those who argue for the importance of a legally binding outcome in Paris focus primarily on compliance.  But the legally binding character of parties’ NDCs could also affect ambition and participation, potentially in negative ways.  Moreover, even if the legally-binding character of a provision does enhance compliance – a plausible hypothesis but one that has resisted empirical demonstration – other factors can also promote compliance, including transparency and accountability mechanisms, which make it more likely that poor performance will be detected and criticized, thereby raising the reputational costs for the state concerned.  Contra President Hollande, these verification procedures do not depend on the legal character of parties’ NDCs; non-binding provisions can also be subject to a strong system of monitoring, reporting and verification.   So the question is how much additional compliance would result from making NDCs legally binding, and whether this value-added for compliance might be outweighed by a diminution in participation and/or ambition.

For more on the legal status of the Paris agreement, see Bodansky and Rajamani, Key Legal Issues in the 2015 Climate Negotiations (Center for Climate and Energy Solutions 2015), Bodansky, Legally Binding vs. Non-Legally Binding Instruments, in Scott Barrett, Carlo Carraro & Jaime de Melo, eds., Towards a Workable and Effective Climate Regime (VoxEU eBook 2015), and Bodansky, Legal Options for US Acceptance of a New Climate Change Agreement (Center for Climate and Energy Solutions 2014), from which this post is drawn.

What Would Constitute Success in Paris?

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 will be in Paris for the climate change negotiations. This is the first 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.]

The latest episode of the long-running drama known as the UN climate change negotiations begins this week in Paris. Commentators are touting the Paris conference as “historic”, “pivotal,” the “last chance” for the world to address the climate change problem. So what would constitute success?

For the past couple of decades, political scientists and international lawyers have debated how to measure the effectiveness of international environmental regimes. The gold standard of effectiveness is whether an agreement solves the problem that it seeks to address. That would require the Paris conference to prevent “dangerous anthropogenic climate change” – the explicit objective of the UN Framework Convention on Climate Change. No one is exactly sure how much global warming would be compatible with this objective; to the extent severe weather events like the 2003 Paris heat wave (.pdf) or Hurricane Sandy can be attributed to global warming, then perhaps we are already in the dangerous zone. At the Copenhagen Conference, the international community defined the goal less stringently, as warming of less than 2° C above pre-industrial levels. But some think that 2° itself would be too much, arguing for limits of 1.5° or even .

So far, the world has warmed by about 1°, according to the latest data from the UK Met Office. This might suggest that we’ve still got some headroom, measured against the 2° temperature. But the climate system has tremendous inertia, so the effects of past emissions have been only partially realized. Even if we stopped emitting completely right now, the world would still warm by another half degree or more before leveling off. And, of course, global emissions continue to go up rather than down, and peak emissions, let alone zero emissions, are still more than a decade away.

The bottom line is that there is no prospect that the Paris conference will, in itself, put us on a pathway to meeting the below-2° limit. The emission reduction goals that countries have submitted as part of the Paris process (known in climate change argot as “intended nationally determined contributions” or INDCs) instead put the world on a pathway to global warming of around 3° or 3.5°. So if we take problem-solving effectiveness as our measure of success, then we are bound to be disappointed.

But few public policies fully solve the problem that they address; by that standard, virtually every public policy falls short. In my view, the more reasonable test is whether the Paris conference results in a significant improvement over what would have happened otherwise. And by this measure, the Paris conference is likely to be successful.

How should we assess whether Paris is moving us in the right direction? I would suggest four elements:

• First, is the Paris agreement global in its coverage?
• Second, have countries pledged to make significant reductions in their emissions?
• Third, does the agreement establish mechanisms to promote transparency and accountability, so that we will know whether countries do what they say?
• Fourth, does the agreement provide a process to to ratchet up its level of ambition over time?

On the first element, the Paris process can already be counted a success. More than 150 countries, representing more than 85% of global emissions, have come forward with INDCs – that is pledges of what they’re going to do to reduce emissions. Compared to the Kyoto Protocol, which even in its prime covered only about 25% of global emissions, this a major step forward.

Second, the INDCs that countries have submitted represent a significant improvement over current policy. According to a recent analysis by the UN Climate Change Secretariat, they would reduce emissions by about 3 gigatons (GT) CO2e in 2025 and 4 GT in 2030, as compared to the business-as-usual trajectory. Although this falls well short of putting the world on a below-2° pathway, global warming of 3° C would still be better than 3.5°, and 3.5° better than 4°, and 4° better than 5°. So if Paris moves us down the scale of likely warming, then this represents progress.

Third, countries seem likely to agree to a relatively robust system of reporting and review. While transparency in itself does not ensure that countries will comply, at least it would allow the international community to assess whether countries are living up to their pledges, and to exert peer pressure if they don’t.

Finally, countries also look likely to agree to come back every five years to take stock of what’s been achieved and how that compares to the 2° goal, and to put forward new, more ambitious emission reduction plans.

So I am cautiously optimistic about the Paris conference. Of course, one shouldn’t underestimate the capacity of the UN climate change process to seize defeat from the jaws of victory. And the victory would, in any event, be only partial. But if Paris establishes a durable framework that is global in scope, provides for transparency, and pushes to strengthen ambition over time, then, for me, that would be a significant achievement and would constitute success.

More on Why the U.S. Is Not Violating the Outer Space Treaty By Allowing Asteroid Mining

by Julian Ku

I’ve received some very good (though pretty much all critical) comments to my original post defending the consistency of the recently enacted U.S. Space Act with the Outer Space Treaty. I will concede that my reading of the statute and treaty is not exactly a cut and dried simple legal issue. But I think too much of the reporting on the Space Act has made it seem like it is a clear violation the other way.  (See here, here, and here.)

One thing that few of these articles note is that the U.S. House of Representatives Committee on Science, Space, and Technology did study the question of the Outer Space Treaty when it reported out this legislation.  They reasonably concluded that allowing private companies to exploit celestial bodies is not a “national appropriation” within the meaning of the Outer Space Treaty.  Indeed, this has long been a position of the United States. For instance, the House Committee noted that in 1980, the U.S. State Department’s Legal Adviser explained that

`The United States has long taken the position that Article 1 of that treaty [Outer Space Treaty] . . . recognizes the right of exploitation. We were and are aware, however, that this view is not shared by all States or commentators, some of whom take the position that the nonappropriation provisions in Article [II] of the 1967 Treaty preclude exploitation of celestial natural resources and the reduction to private property.”

It is also worth noting that State Practice seems to lean in favor of allowing the use of materials from outer space. Again, from the Committee’s discussion:

State practice is consistent with finding that exploration and use of outer space includes the right to remove, take possession, and use in-situ natural resources from celestial bodies. The United States, Russia, and Japan have all removed, taken possession, and used in-situ natural resources. These activities have never been protested by a State party to the treaty or judged in a court of law to be in violation of the Outer Space Treaty.

Indeed, some moon rocks taken by the Russian government have actually already been sold to private parties at Sotheby’s auctions in recent years.

Finally, the Committee cites Article VI of the Outer Space Treaty as recognizing that non-governmental entities can carry on activities in outer space, as long states bear international responsibility for those private activities.

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

I will again note that this reading of the Outer Space Treaty is hardly slam-dunk, but I think it is a quite reasonable one that is at least as persuasive as the interpretation offered by the critics.  I think it is worth noting that State practice leans in favor of the U.S. here, which is not decisive, of course, but it is helpful nonetheless.  I also don’t think the U.S. ever would have committed itself to a flat out ban on commercial exploitation of outer space when it signed the Outer Space Treaty.

In any event, we will see how things spin out. As I noted, it is possible we will one day need an “Authority’ like that created for the international seabed, but not just yet.

The UK Government’s Position on Unwilling & Unable

by Jens David Ohlin

Happy Thanksgiving.  As those of us in the United States celebrate our Thanksgiving holiday, it is of course imperative to remember that many people outside our country are facing serious problems and perilous circumstances.

In response to the terror attacks in Paris (and in Mali), the government of UK Prime Minister David Cameron has once again called on British lawmakers to authorize the use of military force in Syria. Cameron released a document that not only articulates the strategic necessity for military action against ISIS, but also outlines the Cameron administration’s legal position regarding the legality of the proposed strikes under international law. Unsurprisingly, the argument relies on the fact that the Syria government is unwilling or unable to stop the ISIS threat.

The following excerpt is taken from a longer document released by Cameron and sent to the British Parliament’s Foreign Affairs Committee. Here is the critical section dealing with international law:

There is now a UN Security Council Resolution. Resolution 2249 (of 20 November 2015) has now made a clear and unanimous determination that ISIL “constitutes a global and unprecedented threat to international peace and security”, and called upon Member States to take “all necessary measures … to prevent and suppress terrorist acts committed specifically by ISIL… and to eradicate the safe haven they have established over significant parts of Iraq and Syria.” There is a clear legal basis for military action against ISIL in Syria. The legality of UK strikes against ISIL in Syria is founded on the right of self-defence as it is recognised in Article 51 of the UN Charter. The right to self-defence may be exercised individually where it is necessary to the UK’s own defence, and collectively in the defence of our friends and allies. This reflects the multi-faceted and evolving threat that ISIL poses, and the response that is required to bring that threat to an effective end.

Collective Self Defence of Iraq

On 20 September 2014 the Government of Iraq wrote to the President of the UN Security Council seeking international assistance to strike ISIL sites and military strongholds, in order to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders. The main basis of the Global Coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. The UK is already supporting the Coalition’s efforts to degrade ISIL in Syria as a necessary aspect of effectively bringing an end to ISIL’s armed attack on Iraq. On 21 October 2014, the Defence Secretary announced to Parliament that he was authorising flights of manned and unmanned surveillance aircraft over Syria to gather intelligence against ISIL. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria and their ongoing attack on Iraq and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq.

In light of these considerations and the scale of the threat posed by ISIL, military action that is necessary and proportionate to bring an end to ISIL’s attack on Iraq is justified in accordance with the right of collective self-defence that is preserved in Article 51 of the UN Charter. The Coalition has relied on this legal basis for military action in Syria. Numerous States, including the USA, Australia, Canada and France have written to the UN Security Council explaining that they are taking action on the basis of the right of collective self-­defence. In accordance with the requirements of Article 51 of the UN Charter, the UK notified the UN Security Council that it was taking military action as part of the Coalition’s efforts in the collective self-defence of Iraq by a letter of 25 November 2014. The underlying considerations which justified collective self-defence of Iraq for UK activity in Syria in 2014 remain today. The collective self-defence of Iraq provides a clear legal basis for the UK to increase its contribution to the Coalition’s efforts against ISIL in Syria by taking direct military action itself, provided such activity meets the ongoing requirements of necessity and proportionality.

ISIL’s threat to the UK and its attack on our Allies and partners

The threat from ISIL continues to evolve and now goes far beyond Iraq and Syria, as is all too clear from the external attack planning disrupted by the precision UK strike of 21 August (as I reported to the House on 7 September) and the tragic events of 13 November in Paris. For several months now, UK security agencies have been monitoring the development of ISIL’s external attack planning capacity, which seeks to target both the UK and our allies and partners around the world. Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks. It is clear that ISIL’s campaign against the UK and our allies has reached the level of an “armed attack” such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL. As well as the collective self-defence of Iraq, there is therefore an additional legal basis to take action in our own self-defence and that of other allies and partners as well, where they request our assistance. The use of force in self-defence is of course limited to what is necessary and proportionate and we have made clear that we will act at all times in accordance with the law.

The Unwilling Part of “Unwilling or Unable”

by Deborah Pearlstein

Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified.

Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself.

Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies. (more…)

Remembering Professor Burns Weston

by Duncan Hollis

Professor Burns Weston passed away on October 28, 2015.  His daughter, Rebecca Weston, wrote the following obituary, which she passed on to us to circulate among the international law community.  I never had the privilege of meeting Professor Weston, but was a regular user of his textbooks (on both international law and international environmental law).  I know I speak for all of us here at Opinio Juris when we offer our condolences to Rebecca, her family, Burns’ former students, as well as all his friends and colleagues.

Burns H. Weston, Bessie Dutton Murray Distinguished Professor of Law Emeritus at the University of Iowa and founder and senior scholar of the University of Iowa Center for Human Rights (UICHR) died on October 28, 2015, just a few days before his 82nd birthday.  After surviving numerous intense challenges to his health, Weston’s death was unexpected and sudden.  To the end, he was excited about upcoming birthday celebrations with his wife and visits to his children over Thanksgiving; he was steadily writing and developing new projects.

Weston was fond of quoting EB White, who said:  “If the world were merely seductive, that would be easy.  If it were merely challenging, that would be no problem.  But I arise in the morning torn between a desire to improve the world and a desire to enjoy the world.  This makes it hard to plan my day.”

In his own life, Weston also felt the pull of these choices every day – including in his first pivotal career decision to discontinue a promising career as a pianist or conductor to focus on the then relatively new field of international law.

As loved ones, friends and colleagues from around the world witnessed, Weston had a limitless capacity to enjoy so much about this world – and an equally tenacious drive to improve it.

After receiving his J.D. from Yale Law School, Weston began his legal career in 1961 with the distinguished New York City law firm of Paul, Weiss, Rifkand, Wharton & Garrison.  Wanting to teach, he subsequently joined The University of Iowa College of Law, where he remained for the rest of his professional life.  He devoted himself to the cause of international law, human rights and environmental sustainability.

As his close friend and colleague, Richard Falk said, Weston was one of “the most talented and dedicated international law scholar[s] of his generation.”  Weston authored over 28 books, innumerable articles, and was on the editorial board of over 10 professional journals, including the American Journal of International Law.  Among others, he published in the Harvard International Law Journal, Human Rights Quarterly, and the Journal of Human Rights and the Environment.

Over the years, Weston participated in fact finding missions, lectured, wrote and taught about some of the most pressing issues facing our planet: nuclear weapons and disarmament, child labor, human rights and in the latter part of his life, environmental survival.  And in doing this work, Weston was often bold and inventive.  As close collaborator David Bollier wrote, he was an “irresistible disruption” – a force of such optimism, conviction and potential – that he emboldened and challenged those around him.

At the University of Iowa, Weston inspired generations of law students and “put Iowa Law on the map” of international law and international human rights. He developed a path-breaking, problem-oriented approach to teaching international law and wrote the award-winning textbook, International Law and World Order: A Problem-Oriented Coursebook.   Always broad and expansive in his thinking, Weston also founded and directed an interdisciplinary, university-wide Center for World Order Studies (later known as the University’s “Global Studies Program”) in the 1970s.

At the same time, Weston was a dedicated teacher who paid close attention to and nurtured his students.  As one student wrote, he “will always be the internationally-renowned scholar, writer, and teacher who was also generous enough to write two e-mails to a very desperate law student when she needed it most.  And there’s not a lot of those out there.”

Prior to the end of the Cold War and the collapse of the Soviet Union, Weston took part in a human rights fact-finding mission to Havana Cuba in 1984, a protective conflict-mitigation mission in 1985 to accompany former political dissident (and later president) Kim Dae Jung upon his return to Korea following involuntary exile in the United States; and in 1987, a human rights fact-finding mission in the Israeli-Occupied Territories of the West Bank and Gaza.

Later, Weston (usually with his wife Dr. Marta Cullberg Weston), organized and/or participated in a number of human rights fact-finding and conflict-mitigation missions in the former Yugoslavia, Central Asia, and beyond.

In the latter part of his career, Weston founded the University of Iowa Center for Human Rights (UIHCR) and turned his scholarly attention to issues of the environment.  He immersed himself in the politics and the social dynamics of ecological crisis and climate change.  In 2012, Weston authored the International Environmental Law and World Order: A Problem-Oriented Casebook. 

Subsequently, in 2013, Weston co-authored a ground-breaking book titled Green Governance: Ecological Survivial, Human Rights, and the Law of the Commons.   As co-author David Bollier has written about their collaboration on the Commons Law Project, Weston “attacked these questions with the enthusiasm of a first-year law student and the sagacity of a gray eminence. […] He wasn’t afraid if they might require social and political struggle.”

At the time of his death, he was in the final stages of completing the 4th edition of Human Rights in the World Community: Issues and Action, with co-author, Anna Grear.

In his non-academic, non-activist life, Weston embraced the world “with all five senses.”  Above all, he was passionate about and constantly immersed in classical music:  friends and family can easily recall moments when Weston’s attention drifted into a musical score; they remember often urging him to lower the volume just enough to hear themselves talk in the car or over a dinner table conversation.

He also loved art, taking drives and going to movies.  He had a strong sense of aesthetics and a gifted ability to create beautiful spaces. In no place were Weston’s senses more alive or more soothed then in his beloved Adirondack Mountains.  Until the end, Weston was a devoted spouse, father and grandfather: he was consistently and steadily available, curious about and eager to support and connect with his children and grandchildren.

Weston is survived by his wife, Marta Cullberg-Weston (Sweden) and his two children, Timothy Bergmann Weston (Boulder) and Rebecca Burns Weston (Montana), four grandchildren (Leah and Emma Yonemoto-Weston, Elijah and Isabella Weston-Capulong) and three stepchildren, Malin Cullberg, Johannes Cullberg, and Martin Cullberg and five step grand-children John Birger Wedinger, Olivia Lampenius Cullberg, Sima Wiernik Cullberg, Joar Wiernik Cullberg, and Cecilia Lampenius Cullberg.

A memorial service in honor of Weston will be held at the University of Iowa College of Law on December 5, 2015, from 2:00 p.m. – 5:00 p.m.  Donations in Weston’s honor will be accepted at the Iowa Law School Foundation for the benefit of the University of Iowa Center for Human Rights, 130 Byington Road, Iowa City, Iowa 52242

Can You Be Pro-Free Trade and Anti-Investor State Dispute Settlement?

by Julian Ku

Simon Lester of Worldtradelaw.net and the Cato Institute offered a very interesting pro-free trade argument against the inclusion of investor-state dispute settlement (ISDS) in trade agreements like the TransPacific Partnership or the Transatlantic Trade and Investment Partnership.  I disagree and we discussed and debated the issue today in a lively conversation hosted by Columbia University’s Center for Sustainable Investment.

So It’s Settled: The President Can Violate Customary International Law

by Julian Ku

There is a lot of interesting material revealed in the Charlie Savage NYTimes article on the legal justification for the Bin Laden raid (including how the Attorney General and Office of Legal Counsel were kept in the dark and out of the loop).  But I want to focus on one paragraph in the article, which explained the lawyers’ backup justification for their conclusion:

There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.

Deborah has done some very good analysis here on the CIA’s views on this question, as applied to non-self-executing treaties. I think that is a tricky question. But there is also an easier question that was also probably settled in the lawyers’ legal memos.  Like the Bush administration lawyers, the Obama Administration lawyers concluded that the President can choose to violate that customary international law without violating the Constitution or other domestic law.

Although this may seem obvious, it used to be a highly contested question.  I dug up this discussion from a 1986 panel between leading international law scholars Louis Henkin, Anthony D’Amato, Michael Glennon, Abe Chayes and others.  Almost none (even President Reagan’s legal adviser Abe Chayes) would have openly admitted that the President could violate customary international law. The Restatement of U.S. Foreign Relations Law suggests, but does not completely endorse the view that the President can openly violate customary international law.  Indeed, there used to be a fair number of law review articles explaining why the President’s obligation to “Take Care” that the laws are faithfully executed include customary international law. But, if Savage’s reporting is accurate, the U.S. government (under both George Bush and Barack Obama) is no longer troubled by this question, and has moved on. So should the rest of us, apparently.