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Haiti Cholera Case: New Briefs Filed on Privileges and Immunities

by Kristen Boon

New briefs have been filed in the Haiti Cholera case against the UN, now pending in the SDNY.    Plaintiffs filed a response to the US Government’s Statement of Interest, in which the US defended the UN’s absolute immunity.  The important treaty law argument the Plaintiffs advance in response is that:

Both international law and U.S. law provide that a material breach of a treaty or contract by one party excuses performance by other parties. Defendants’ failure to establish a standing claims commission, or any other mechanism for relief, should deny Defendants the benefits of immunity and the right to shield themselves from responsibility in the instant case.

In other words, they argue that the Convention on Privileges and Immunities of the UN has been suspended because the UN failed to set up a standing claims commission as required under Article 29.

In addition, two amicus briefs have been filed.  The first is by a group of International Law Scholars who argue that the the UN has an obligation to respond to claims of a private law nature, and that the Haiti cholera case does not involve operational necessity.

The second is by a group of European Law Scholars, who provide information to the Court on how cases on Privileges and Immunities have been addressed in European jurisdictions.   In particular, they analyze the important precedent of Waite and Kennedy, in which a “reasonable alternative means” test was adopted.    They also distinguish the Mothers of Srebrenica case in which the Dutch Supreme Court and later the ECtHR upheld the UN’s absolute immunity, because the Security Council was considered to be fulfilling its core function and the core of the case involved operational necessity.

Each of these briefs raises important international law arguments and ultimately invites the SDNY to decide whether the UN’s immunity is conditioned on the requirement to provide a forum for the settlement of private disputes.

Implications of Security Council Veto on ICC Referral of Syrian Situation

by Kristen Boon

Before yesterday’s vote on referring the situation in Syria to the ICC, Louise Arbour, outgoing President of the International Crisis Group and former UN High Commissioner for Human Rights, was quoted in the New York Times as saying “The only question in my mind is, will it belong to the cemetery of good intentions or the museum of political scoring? This is, in a sense, an exercise in using the I.C.C. and accountability for posturing.”   In other words, the ICC was never the best option.   I’ve seen several similar comments in the blogs, for example by Dov Jacobs here and Kevin here.

Nonetheless, for a Council that is deeply engaged with Syria, yesterday’s Security Council session marked another defeat for the people of Syria. Despite widespread member state support starting in 2013 for a referral, see this letter signed by 57 states to the Security Council,  and reports that 60 states supported the referral yesterday, the meeting marked the fourth time Russia and China vetoed resolutions involving Syria, and the first time the veto has been used on a proposed ICC referral.   For background on this resolution, see this Security Council Report analysis here.

Because international tribunals such as the ICC would only have the capacity to try a fraction of the crimes, it has always been clear that other mechanisms, such as hybrid tribunals like those in Bosnia, a specially created international court, or the Syrian courts themselves, will be necessarily be part of the judicial response to the ongoing atrocities being committed in conflict.  In this sense, the “pass” on the ICC referral doesn’t mean alternatives aren’t available.   Moreover, US support for this referral (albeit with concessions related to the Golan Heights and jurisdiction over American servicepeople) further closes whatever legitimacy gap the ICC may have had in American eyes.

The legitimate controversy over financing aside, the downsides of potential ICC jurisdiction over ongoing atrocities committed by the government forces and opposition forces alike are really ones that, institutionally, could have and should have been handled by the Court itself, as a separate and independent body. I don’t agree with arguments that the Security Council referral was complicated by the fact that opposition forces are implicated in the commission of atrocities as well, or that the Security Council needs to decide who (which side) should be prosecuted in advance of referring a situation to the court.   What this conflict does indicate however, is the deepening entanglement between international courts and the Council, a theme which runs broadly through the Council’s peace and security work, and through its sanctions practice as well.

This entanglement can be addressed in a few ways.  The First, is greater clarity and better mechanisms to improve the relationship between the Council and the ICC (amongst other courts), while maintaining institutional independence.   For an overview of the issues broadly cast, see David Kaye’s 2013 report here.   Second, working around the Security Council is another option.  Because Syria is not a party to the ICC, the options are limited, but Amb. Christian Wenawaser of Leichtenstein has argued that another route to ICC jurisdiction might be hoc submission under Art. 12(3) of the ICC Statute.   In a talk at the International Peace Institute in January, he stated that the Syrian Opposition could refer the situation to the ICC now, to show the opposition is claiming its competence and supports accountability.  Although it would be a political act, in time, he predicted it might become a legally valid referral if the Syrian opposition is eventually recognized as the government.   The ICC would of course be the ultimate judge of the legal consequences of any such referral, but optimistically, it could trigger jurisdiction from the moment such a declaration was made, not the moment it was accepted. The downside to this approach, however, is that it might become a political tool amongst the competing factions to bolster their status as the official opposition.

Third:  censure of the veto.  A number of prominent NGOs responded to yesterday’s session with a statement urging permanent members of the Security Council to adopt a “code of conduct” that would require the P5 to voluntarily refrain from using the veto in situations of genocide, war crimes, ethnic cleansing and crimes against humanity.  This NGO statement invokes the parallel effort by France to introduce a resolution that would restrict the use of the veto in cases of mass atrocity.   Although France’s efforts were referred to multiple times during the debate, yesterday’s double veto made clear the political costs of blocking the veto are not yet high enough to sway Russia and China’s persistent objections to judicial or other intervention in Syria.

Fourth, using the General Assembly in the spirit of the Uniting For Peace resolution.  Derek Jinks analyzes this path here.

As these options become more attractive by necessity, yesterday’s vote makes clear that the Security Council’s primary is under scrutiny.  Moreover, it reinvigorates the debate about whether the Council’s failure to act creates legal consequences for the P5, member states, or the UN itself.  As Deputy Secretary-General Jan Eliasson said yesterday:

“The Security Council has an inescapable responsibility in this regard. States that are members of both the Security Council and the Human Rights Council have a particular duty to end the bloodshed and to ensure justice for the victims of unspeakable crimes.”

Senate Foreign Relations Committee Takes on the AUMF

by Deborah Pearlstein

As several of my friends at Just Security and Lawfare have noted, the Senate Foreign Relations Committee on Wednesday held an, um, interesting hearing on whether the primary domestic law authorizing the use of force against Al Qaeda, the Taliban and associated forces needs to be repealed or revised. Witnesses’ written statements and (more interesting) video of the hearing is here. The hearings featured current DOD General Counsel Stephen Preston, Principal Deputy Legal Adviser at the State Department Mary McLeod, followed by former (Obama) State Department Legal Adviser Harold Koh and former (Bush) Attorney General Michael Mukasey.

The Administration witnesses took a pounding. Some of the harsh questioning was, as ever, partisan bombast seeking to score pre-election points. Some of it was the members’ impatience with the complexity of the (overlapping) domestic and international law in the area. But some of it was the members’ understandable difficulty in trying to follow the witnesses’ at times needlessly confusing responses, viz. “Q: Give me a sense of what you get from the AUMF that you don’t have under existing statutory or constitutional law? A: “…I think it would be fair to say that with or without an AUMF, to the extent that it grants authority for the use of military force against Al Qaeda, the Taliban, and associated forces, in which we are in armed conflict, to the extent that those groups continue to pose a threat of imminent attack against this country, the President does have constitutional authority to act….” And some of it was genuine frustration, viz. “Q: If a bill was introduced today to repeal the [2001] AUMF, would the Administration’s position be support, oppose, or I don’t know? A: As of today, Senator, I think the answer is, we don’t know.”

So does the Administration really think the President’s authority under Article II of the Constitution gives it all the power it needs, even without the AUMF? If one is concerned about this kind of broad inherent executive authority, and if all agree the Al Qaeda of 9/11 is diminished and the nature of the threat of terrorism is evolving, doesn’t that necessarily mean we need new statutory authority to define or constrain the President’s ability to go after these evolving threats? My view: no and no. Here’s why. (more…)

Game On, Again? Vietnam Planning to File Legal Action Against China Over South China Sea Dispute

by Julian Ku

There have been lots of reports out in the last 24 hours saying that the Government of Vietnam is planning to take legal action against China for its movement of an oil rig into disputed waters in the South China Sea.  Indeed, the Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China’s actions in the South China Sea.

What would the Vietnam legal action look like? The most likely action would be to seek arbitration under Annex VII of UNCLOS, just as the Philippines has done.  Of course, China would have the same defense and likely the same reaction to any Vietnam claim: that China’s Article 298 declaration excluding disputes over matters involving “sea boundary delimitations”or “involving historic bays or titles….” would exclude jurisdiction.  Moreover, China might further argue that Article 298 also allows it exclude “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction….”

At first glance, I can’t see how Vietnam’s claim would be any better or worse than that of the Philippines with respect to jurisdiction.  Vietnam has the same objection to China’s Nine Dash Line, and Vietnam similarly argues certain South China Sea features claimed by China are not “islands” for purposes of UNCLOS entitled to an Exclusive Economic Zone.  So I think we will see a rerun of the Philippines arbitration.  Vietnam will constitute a tribunal, China will not participate, and away it goes.

Some other reports out of Vietnam suggest it will file a claim with the International Court of Justice, if only to show their good faith, even though the ICJ has no jurisdiction over China.  I don’t think this is a great strategy, but maybe it will be a useful diplomatic showcase.

Finally, there are reports Vietnam will allow its state-owned oil company to file an action against China’s state-owned oil company in Vietnamese courts.  This actually seems like an interesting idea, since once the Vietnamese company won the judgment, it could in theory try to enforce it against the assets of the Chinese company overseas.  It is not a slam-dunk, but it certainly could be a plausible claim.

I am doubtful that  an additional arbitration will lead to China backing down.  Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines.   The extra added pressure of  a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned.  I am not saying that it is bad strategy for Vietnam to try the arbitration route, but Vietnam should be realistic about the veryreal costs, and limited benefits of this strategy.

Why Taiwanese Investors Should Think About Becoming Chinese (At Least When Suing Vietnam)

by Julian Ku

I’ve been settling into my digs this summer at the National Taiwan University College of Law as a visiting research fellow with the support from a grant from the Taiwan Fellowship. Mostly, I’ve been spending my time eating my way through what I believe is the best Chinese food scene in the world  (I am posting pictures of my eating exploits on my facebook page for those interested in Chinese food).

But in between absurdly delicious meals, I have also been following the anti-Chinese riots in Vietnam that have caused over 500 different businesses to be shut down there over the past week and thousands of Chinese and Taiwanese nationals to flee Vietnam. Those violent riots were apparently in response to China’s placement of an oil rig in disputed South China Sea waters.

The lively Taiwanese media has been following these riots with much more intensity than their Chinese counterparts, because a large proportion of the burned or trashed businesses are actually owned by Taiwanese nationals, with Chinese workers or managers administering it for them.  TV news here is filled with pictures of Taiwanese flying home with harrowing stories of dodging rioters by hiding in trash cans, etc.  Their plight has caused some soul-searching here in Taiwan because Taiwan’s status as a non-country that is recognized in Vietnam only as a province of China means they receive the blowback for China’s actions and Taiwan’s government has limited means to respond and protect their own nationals.  (Their foreign ministry did helpfully issue stickers to their nationals saying, in Vietnamese, “I am from Taiwan”. Reminds me of the time I was told to put little Canadian flags on my backpack when I wandered through sketchy areas of Egypt).

In addition to advising their nationals to emphasize their “Taiwaneseness”, the Taiwan government’s main action has been to invoke the 1993 Taiwan-Vietnam Investment Promotion and Protection Agreement (in Chinese).   The Taiwan government is using this agreement as proof that it can protect and seek compensation for its nationals abroad.

This is sort of like a bilateral investment treaty, but not quite, because of Taiwan’s odd non-country status.  It is technically an agreement between the “Taipei Economic and Cultural Office in Vietnam and the Vietnam Economic and Cultural Office in Taipei” which means it is an agreement between two quasi-government agencies, and not the governments as a whole. This means it is unlikely to be governed by international law, although the agreement doesn’t choose any governing law either.  Moreover, the agreement does not provide for referral to an ICSID tribunal for any investor claims against the host government (in this case Vietnam). Rather, it seems to allow for referral to arbitration under the “1988 International Chamber of Commerce” Rules.  Moreover, such referrals seem to require the mutual consent of the parties in Article 8.  This might allow Vietnam to block a referral to arbitration by a Taiwanese investor.  (Oops! This provision refers to disagreements between the two parties to the agreement, not the investor and the host state. Sorry about the misreading. But I think my larger critical take stands). Since the Agreement doesn’t otherwise waive Vietnam’s state immunity, I am not confident about the ability of an investor to enforce any awards from an ICC tribunal without such consent anyway.

In other words, I am skeptical that the Taiwan-Vietnam Agreement is going to be very effective at winning compensation for investors.  Instead, if I was a Taiwanese investor, I would think about invoking the Vietnam-China BIT.  True, that agreement is limited to natural persons and economic entities who have the “nationality of the People’s Republic of China”, but it is not entirely clear this would exclude the PRC’s “Taiwanese compatriots” who are officially treated in China as “nationals” for some purposes.  Even if this argument doesn’t fly, many of the Taiwanese companies in Vietnam may have Chinese national employees or entities that could make a claim on their behalf.  Of course, this would be pretty bad PR here in Taiwan, where no one really wants to be associated with the Chinese government.  But if they managed to get an ICSID tribunal constituted, a Taiwanese investor has a much better chance to forcing Vietnam to pay out compensation under the Vietnam-China BIT than the Vietnam-Taiwan agreement.  Another example of why being a non-state is such a pain for Taiwan and the Taiwanese.

A Post-Snowden world? Criminalizing Chinese cyberespionage

by Duncan Hollis

Three quick (and thus tentative) thoughts on the BIG news out of the Justice Department a few minutes ago, announcing criminal charges against five officers of the Chinese People’s Liberation Army for hacking various U.S. industries, including Westinghouse and US Steel.  The Justice Department offered fairly detailed descriptions of how the hackers obtained information that had direct economic consequences for US companies, whether in terms of stealing design specs or pricing plans.  As a result, I don’t have much doubt that the evidence establishes behavior violating U.S. cyber crime laws as written. That said, this is still, as Holder himself admitted, an unprecedented move.  It’s not every day the U.S. government charges military officers with criminal behavior that was presumptively authorized by the foreign government itself.  Doing so suggests, not too subtly, that the real criminal here was China:

When a foreign nation uses military or intelligence resources and tools against an American executive or corporation to obtain trade secrets or sensitive business information for the benefit of its state-owned companies, we must say, ‘enough is enough.’ This Administration will not tolerate actions by any nation that seeks to illegally sabotage American companies and undermine the integrity of fair competition in the operation of the free market. This case should serve as a wake-up call to the seriousness of the ongoing cyberthreat. These criminal charges represent a groundbreaking step forward in addressing that threat.

For more background, you can watch the press conference here or read the prepared statements by Holder and others.

My first reaction was that these charges aren’t really about prosecuting the named officers, but of signaling to the world that the United States wants to change the status quo when it comes to State-sponsored cyber-exploitation.  The fact that States engage in cyberexploitation has long been widely known, but so far, the prevailing response has been a shrug of the shoulders — the theory being that spying cannot be regulated away so why bother trying.  These charges suggest a political effort, however, to do just that — i.e., to try and change the volume or nature of State-sponsored cyber-exploitations at least when it comes to impacts on private commercial actors.  I say a “political effort” since I very much doubt these charges will amount to much within the U.S. legal system.  Simply put, these five officers are not going to appear in a US courtroom to face the charges against them. I suppose it’s possible (although implausible) that China could express surprise at the U.S. evidence and announce its own investigation with some lip service about shutting rogue actors down or holding accountable those responsible. But, even in such a case, I can’t see China handing them over to the United States.  Much more likely, I suspect will be Chinese protestations of “trumped-up” charges or “false” evidence by the U.S. Government.  As such, assuming they don’t vacation abroad, these officers are unlikely to face any negative consequences; on the contrary, I’d bet they’ll probably be lionized in some ways at home.

My second reaction was that of a law professor, asking in a hypothetical world where these officers somehow did end up before a U.S. court, what would happen then?  I assume there’d be a claim by the defendants of sovereign immunity and, for the reasons stated above, I doubt the Chinese government would dispute such immunity.  This would, in turn, raise interesting questions about whether the Foreign Sovereign Immunities Act would grant immunity from prosecution to these officers or whether the Justice Department could successfully invoke one of the statute’s exceptions. Based on the repeated references in this morning’s press conference to the ‘commercial’ nature of the Chinese cyberexploits, I’d guess DOJ’s theory is that it can proceed under the FSIA’s commercial activities exception, which affords federal jurisdiction to cases “in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”  I know many of our readers are expert in sovereign immunity issues, so I’d be interested in your reactions — do these officers have a legitimate claim for sovereign immunity?  Or, might they invoke some other status-based immunities and with what likely results?

My third reaction was that these charges represent the official start of a Post-Snowden era. For the better part of a year, Snowden’s revelations have dominated almost all discussions of cyber activities involving the United States.  To be sure, the United States has tried to rebut some of the allegations or recast others in a more positive light, with pretty mixed (some might say poor) results.  Indeed, every time, the United States tried to move on, there was some “new” revelation waiting in the wings to forestall that effort.  In recent weeks, however, Snowden-related disclosures have slowed, while at the same time the United States has had some diplomatic successes (see, e.g., the NETmundial final statement ).  Thus, there’s certainly space today that wasn’t present a few months ago for the United States to try and refocus the conversation.  I wonder if this explains the timing of these charges.  After all, U.S. complaints against China were a central plank in U.S. cyber-policy pre-Snowden, so it’s not surprising they’ve been looking for an opportunity to get back on the offensive when the circumstances were ripe for it.  Whether this offensive will be successful remains, of course, to be seen.  It’ll bear close watching how China responds to these charges, both publicly (i.e., in defending its officers or launching counter-charges against US officials) and privately (will there by an escalation of cyber operations by China or others).  But whatever China does, I suspect we’re going to witness renewed attention to the question of whether all cyber-espionage is really the same (i.e., can we distinguish, as the U.S. urges, between State-sponsored hacking for national security interests vs. State-sponsored hacking for economic gain).  I’d hope, moreover, that part of that conversation will involve the question of what role law can play, if any, in regulating cyber-espionage, whether as a matter of domestic or international law. 

Events and Announcements: May 18, 2014

by An Hertogen

Call for Papers

  • The Dennis J. Block Center for the Study of International Business Law will sponsor a Scholars’ Roundtable on October 10, 2014 at Brooklyn Law School.  Scholars writing in a diverse range of fields related to international business law are invited to submit proposals to present works in progress for an intense day of discussion with other scholars in the field.  Participants will be expected to read all papers in advance of the Roundtable and offer commentary on each of the presentations. Scholars selected for the Roundtable will receive a $500 stipend from Brooklyn Law School to defray the cost of attendance.  Applicants should submit a 3-5 page proposal to Robin Effron by June 13, 2014. Scholars selected to present at the Roundtable will be notified by June 30, 2014.
  • The call for papers by the ASIL International Economic Law Interest Group for its 2014 Biennial Research Conference, to be held at the University of Denver’s Sturm School of Law, on November 13-15, 2014 has been extended until June 30. The theme of the conference is “Reassessing International Economic Law & Development: New Challenges for Law & Policy”. They strongly encourage scholars, practitioners, and advanced graduate students to submit proposals to present original research on the theme topic, or on other areas of international economic law. You do not have to be an ASIL or Interest Group member to participate. The full call for papers can be downloaded here. Please contact IEcLIG Co-Chairs Jason Yackee & Elizabeth Trujillo with any questions.

Events

  • The European Society of International Law (ESIL), together with the law firm Stibbe, will co-organize a lunctime lecture entitled: Ethics in International Disputes. This lecture will be delivered by Judge Jean-Pierre Cot, Judge at the International Tribunal for the Law of the Sea and former ad hoc Judge at the International Court of Justice, on Tuesday, 3 June 2014, 12h00 at the office of Stibbe, Central Plaza, Loksumstraat 25 Rue de Loxum, 1000 Brussels. Judge Cot’s address will be followed by comments in response by Françoise Lefèvre, Partner and Global Head of Arbitration at Linklaters in Brussels. Opening and closing remarks will be provided by ESIL President Laurence Boisson de Chazournes, Kathleen Claussen, ESIL member, and Bart Volders, Partner at Stibbe. A light sandwich lunch will be available. There is no cost to attend, but registration is required as space is limited. Please register here by May 27, 2014.
  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) would like to invite you to the next session of the Joint International Humanitarian Law Forum. The session will be held on Wednesday, May 28, 2014, 18:30 in room C110 (Arazi-Ofer Building, 2nd floor) in the IDC. Topic of the session is The Palestinian Accession to IHL Treaties. Professor Robbie Sabel and Keren Michaeli are the discussants. More information is here

Announcements

  • PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo – has advertised three postdoctoral positions: one in international criminal law, one in international environmental law and one in international investment tribunals. More information is here.
  • The Department of Law at NUI Maynooth invites applications for two Professor/Senior Lecturer positions in law. Applications close on May 22, 2014. More information is here.
  • The Editorial Board of the European Journal of International Law is delighted to announce the launch of the Journal’s official podcast, EJIL: Live! Regular episodes of EJIL: Live! will be released in both video and audio formats to coincide with the publication of each issue of the Journal, and will include a wide variety of news, reviews, and interviews with the authors of articles appearing in that issue. The first video episode features an extended interview between the Editor-in-Chief of the Journal, Joseph Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours” appears in issue 25:1. The first audio episode features a shorter, edited version of the same interview, as well as conversations with the Journal’s Book Review Editor, Isabel Feichtner, and the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic.
  • The American Society of International Law’s (ASIL) Women in International Law Interest Group (WILIG) is now launching the second year of its mentoring program for ASIL and WILIG members, matching female law students or new professionals with experienced female international lawyers. This mentoring program is the first of its kind in the international law arena and is designed to foster a new generation of female international lawyers. The first year was a great success, with mentoring groups operating across the United States, and reaching around the world to Canada, Geneva, The Hague, and London. The Program is not designed to match mentees to a mentor with her exact areas of interest, but is rather designed to provide the mentee with general guidance and advice that she can individuate.  When possible, ASIL will try to match mentees to mentors with similar interests.  Mentoring takes place in a group setting, with a maximum of four mentees for every mentor.  Mentors and mentees meet in person seven times during the course of a year to discuss topics and engage in activities designed to help women enter and be successful in the field of international law.  Upon finishing the requirements of the one-year program, all mentees receive a certificate of completion. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Circling Back to that Existence of Armed Conflict Discussion

by Deborah Pearlstein

Last week saw a set of posts, across the law-and-security blogs, about whether an armed conflict existed at the time current commission defendant Abd Al Rahim Hussayn Muhammad Al Nashiri was allegedly involved in planning the October 2000 bombing of the U.S.S. Cole. See, e.g., Frakt, Vladeck, Heller, and Margulies. While I’ve written about this at length elsewhere, after reading the posts, I find myself disagreeing (at least in part) with pretty much all of my friends on the question of who can/must decide the answer to the existence-of-armed-conflict question. Here’s my thinking. (more…)

Guest Post: Strong Words, Weak Arguments – A Response to the Open Letter to the UN on Humanitarian Access to Syria (Part 2)

by Naz Modirzadeh

[Naz Modirzadeh is a Senior Fellow at Counterterrorism and Humanitarian Engagement Project at Harvard Law School. This post is written in her personal capacity and does not represent the views of the CHE Project] 

Part 1 can be found here.

Humanitarian Concerns

Perhaps as significant as the legal errors in the letter, the authors seem to take no account of the security implications of their recommendation. Given its actions thus far, including its attacks on its own population and many medical humanitarians, it would not be at all shocking if Syrian forces attacked convoys that crossed the border without consent. Without any security arrangements with the state, or communication with the government regarding entry of convoys and staff, humanitarian personnel on the ground in Syria would be operating in violation of Syrian law. Many humanitarian actors, perhaps most vocally USG Amos, have commented on the many armed groups who control and seek to control access in rebel-held areas. Should the UN announce that it was entering Syria without the consent of the government (and indeed in the face of government denial of consent), how would it ensure the safety of humanitarian actors and beneficiaries vis-à-vis non-state armed groups? Whose “consent” would satisfy the authors of the letter? Only some armed groups? Any groups that control territory, regardless of their role in the rebellion? What about Raqqa?

It is hard to imagine how any state would support such a notion: would Yemen allow AQAP to provide independent consent to Saudi Arabian relief agencies to enter Yemeni territory in order to provide humanitarian assistance? Would Lebanon allow Iran to enter southern Lebanon to provide assistance to Hezbollah-held territory? (For that matter, would Lincoln’s government have allowed British-backed relief groups to enter the southern territories to provide humanitarian assistance based only on Confederate consent?) It is also critical to remember that those who are asking the United States and European states to aggressively back the UN and humanitarian NGOs to enter Syria without the government’s consent are asking governments who are openly and actively supporting the Syrian rebellion to overthrow the Syrian government. Moreover, despite what seem to be an array of arbitrary and capricious denials of consent by the government of Syria, it would be peculiar, and approaching hypocritical, for the U.S. and Europe not to recognize that many of the Syrian denials of consent stem from security concerns involving “terrorists.” While the U.S. and Europeans may disagree on whether all of the individuals designated by the Syrian government are in fact terrorists, the U.S. and Europeans are themselves deeply concerned about certain terrorist groups operating in Syria, including their own citizens who may return home.

Political Backdrop

I have heard from many colleagues in the humanitarian and human rights fields that as soon as the letter came out, they received angry messages from staff demanding to know why more INGOs have not stood up to support the letter and criticize the UN. My sense has been that since the letter was published, there has been increasing confusion regarding the legal and political dimensions of the question of cross-border movement in the absence of state consent, and that in important respects this question is being misunderstood as a matter primarily of IHL interpretation. The imprecision of the letter’s arguments strike me as having real consequences in the current environment.

Perhaps foretelling an emerging view, Kaine continues,

Since the United States remains the largest single donor of humanitarian assistance in the world, I intend to push strongly for the disbursement of those relief funds in a way that ensures aid will reach the people most in need, including across borders.  I support conversations with other like-minded countries to explore ways within the UN structure, or outside of it, to ensure more cross border aid is delivered.  I also call on the UN to involve NGOs in discussions related to the planning of aid convoys, aid delivery mechanisms, and implementation of 2139.

IHL provides a very delicate system supporting humanitarian assistance during armed conflict. It is far from the strongest part of the law, and humanitarian actors have struggled to develop tools from within IHL that will assist them in negotiating with intransigent governments and non-state actors alike. It strikes me that approaches like the one captured in this letter and in some advocacy campaigns could have implications far beyond Syria: giving states the message that humanitarian actors may use humanitarian access in IHL as a means for intervention, or that they will not genuinely seek consent before they begin operations.

A Security Council decision to intervene—whether based on the doctrine of the responsibility to protect, or a recognition on the part of the international community that Syria’s horrific actions otherwise threaten international peace and security—may provide a strong basis for relief operations absent the consent of the government. But these relief operations may need to be conducted by state-backed actors who are able to aggressively defend their own security and the security of civilians (read: not humanitarian agencies). Or, intervention may open up access, as has occurred in other recent conflicts, for humanitarian actors to enter the country. But neither of these will occur due solely to an interpretation of IHL. The decision to violate Syria’s sovereignty in order to save civilian lives may be made either by the Security Council or by a group of states that decide that the need to stop the crisis outweighs the general international legal prohibition on intervention. It would be, in my view, both dangerous and inappropriate for the UN’s humanitarian agencies to make such a choice on their own, exposed to the full force of the conflict.

I emphasize that none of my comments should be understood as suggesting that NGOs and INGOs cannot and should not cross the Syrian border without the government’s consent. It would likely not be lawful for them to do so under Syrian law, but in my view the UN humanitarian agencies are differently situated than their NGO counterparts when assessing whether they can and should violate Syrian law, and take the attendant security risks in order to enter rebel-held areas. Nor should my comments be understood as in any way supporting the Assad government’s policies or decisions. However, I believe that political arguments should be made as political arguments.

Conclusions

As I have argued elsewhere, this increasing impulse in advocacy circles may have unanticipated consequences for the long-term goals of those who seek to protect civilians and fighters hors de combat in armed conflict.

It is entirely laudable for a group of eminent scholars and former UN experts to suggest—even demand—that the Security Council should take a firm stand, and make a decision under its Chapter VII authority forcing the Syrian government’s hand. They could even argue that the time has come for intervention (though I would suggest that it would be inappropriate for humanitarian organizations to be placed at the frontline of such an intervention). In short, this is not an IHL problem. The inability of the United Nations to establish itself in a country that has not given its consent for such presence is not based on a faulty interpretation of IHL.

While many INGOs, NGOs, and Syrian groups are frustrated with UN inaction or failure of coordination (as demonstrated in an April 16 report from a group of NGOs working in Syria articulating criticisms of UN leadership), my sense is that it is important for INGOs to understand the difference between an official UN position and operational decisions made by INGOs already active on the border. This situation may become further sensitive as some donors may redirect funds from UN agencies to INGOs, publicly announcing that they are doing so due to their disagreement with the UN’s legal position. It may be worthwhile for these donors, should they find themselves participating in a non-international armed conflict, to recall that the UN’s approach reflects settled and clear international law, and that it further reflects these donors’ own legal positions.

Guest Post: Strong Words, Weak Arguments – A Response to the Open Letter to the UN on Humanitarian Access to Syria (Part 1)

by Naz Modirzadeh

[Naz Modirzadeh is a Senior Fellow at Counterterrorism and Humanitarian Engagement Project at Harvard Law School. This post is written in her personal capacity and does not represent the views of the CHE Project] 

There is no shortage of profound questions arising out of the armed conflict in Syria. Yet whether the reported United Nations legal analysis concluding that the UN needs the consent of the Syrian authorities before it can undertake humanitarian relief actions on Syrian territory is not one of them. As international law questions go, this one is relatively straightforward: Absent a sufficient Security Council decision authorizing intervention—a decision which has not been forthcoming, at least not yet—UN system bodies, funds, programmes, and specialized agencies need to obtain the consent of the Syria authorities before undertaking relief actions on Syrian territory.

You would be forgiven for being confused about whether there is a contested legal issue at stake if you had read the open letter sent on April 28th from 35 eminent legal experts (repeatedly referred to as “top international lawyers” in the press and in an increasingly loud Twitter campaign) to the UN Secretary General, Under Secretary General Valerie Amos, and the heads of the five UN humanitarian agencies.

US Senator Tim Kaine (who sponsored the Syrian Humanitarian Resolution of 2014) quickly capitalized on the letter and the caliber of its signatories, sending a letter to Secretary General Ban Ki-Moon stating that “continued inaction will only undermine the legitimacy and reputation of the UN.” The Senator noted that while he supports a Chapter VII decision, he believes that “the UN already has the authority to act.” He states,

“Based on the opinion of prominent international lawyers, the UN currently has the mandate and legal authority to organize a large coalition of international NGOs poised to deliver humanitarian aid to all areas of Syria. Anything short implies complicity with the Syrian government’s continued violations of the basic principles of international law, and is shameful.”

Strong words—and ones that raise the question of whether the prominent international lawyers who signed the letter anticipated being implicated in the suggestion that the UN’s failure to essentially run the Syrian border against the government’s explicit denial of consent suggests “complicity with the Syrian government’s continued violations.”

There are many actors with blood on their hands in the generational tragedy unfolding in Syria. In my view, the women and men of the UN’s humanitarian agencies are not on that list.

In this post, I would like to provide a close initial read of the letter (whose arguments have been quickly amplified by an advocacy and media campaigns). My sense is that this is a political argument dressed up in the language of IHL.
(more…)

More FATCA Follies: Do We Need an Anti-Passport?

by Peter Spiro

As my correspondent Victoria Ferauge points out in response to last week’s post on inter-governmental agreements implementing the Foreign Account Tax Compliance Act, the problem with FATCA for expatriate Americans is not so much the prospect of added accountant fees in tax preparation. It’s the prospect of being discriminated against as an American for all things financial. Faced with their own accounting hassles, some foreign financial institutions are refusing to deal with Americans at all. If they don’t have U.S. citizen account holders, they won’t have to comply with FATCA’s reporting requirements.

Problem is, how do you show you’re not an American?

If you are clearly an American (if, for instance, you were born in US territory), there is a definitive route to losing your citizenship and having it documented. You formally renounce your citizenship before a consular officer (or otherwise demonstrate that your citizenship has been relinquished). A Certificate of Loss of Nationality is your reward. That should do the trick with local bank officers on the lookout for US depositors.

But what if you’re not sure whether you are American in the first place?

Foreign banks are erring on the side of caution. Suspected Americans are to be avoided. Local bankers are assuming citizenship by association. Where they know one family member is a US citizen, they will assume the worst of others, especially parent/child. Banking in Europe remains a more personal, service-oriented business than in the States, so it will not be uncommon that the connections are made.

Individuals in these situations, unsure of their US citizenship status, are in a tricky position. One would expect some to seek out opinion letters from private counsel to the effect that, this person is not a US citizen. You would think that would do the trick with FATCA-shy banks. But perhaps the US government should make it official with the equivalent of an anti-passport, certifying non-citizenship in particular cases.

That an anti-passport is even plausible as a thought experiment shows how bad FATCA really is. Americans abroad are renouncing their citizenship in record numbers, and others will feel lucky not to have it in the first place. What a turn from an earlier era, in which US citizenship was a badge of honor and a shield against a brutish world.

Whither the (U.S.) International Law Academic?

by Duncan Hollis

The state of the international law academy in the United States is undoubtedly strong.  International law and its progeny are no longer marginalized pieces of the law school curriculum as they were for much of the 20th century.  U.S. Law Schools regularly offer international law, with a fair number now doing so in the first year (whether as a required course or an elective).  Nor is the subject limited to a one-off class; schools often try to cover the more fragmented landscape with multiple offerings, from human rights to trade, from arbitration to international environmental law.  Given this proliferation of courses, it’s not surprising to see a similar growth in the number and prominence of international law academics (there is, though, a chicken and egg question here as to which came first).  Today, many schools have moved beyond the requisite “one” international law professor to incorporate faculty with a broad range of international and comparative research interests and experiences.  By way of example, here, at Temple, depending on how you count, we have 11-13 international law faculty.

All that may come as cold comfort, however, to those looking to become international law professors at a U.S. law school in the coming years.  It’s no secret that the U.S. legal education market is in a rather dramatic contraction right now.  As applications tumble, schools are cutting the size of their entering classes, and in some cases their existing faculty.  Last week, a great post by Sarah Lawsky (UC-Irvine) provided a wealth of comparative data on the impacts the market shifts are having on tenure-track hiring for U.S. law schools.  The picture is not a terribly pretty one – from a high of 167 junior faculty hired in 2008 to 73 this year.  I don’t know exactly how many of these 73 hires were in international law, but I’d guess not many.  As schools re-trench, many will focus on hiring in domestic areas because that’s where the perceived jobs are for students (the supply for potential international lawyers having long outstripped the demand, at least for those with a U.S. J.D.).  I’d welcome data that upsets my expectations, but, for now, I’m betting that international law teaching jobs (which were always pretty competitive) are now going to be very hard to get.

This situation leads me to ask three questions.  For starters, is there anything aspiring international law academics can do to actually increase their chances of landing a job in the field? For example, I was asked by a PhD candidate at King’s College London a few weeks ago whether having a PhD in international law would be valued by U.S. law schools given how some law schools have been actively seeking to hire law professors who have PhDs.  My answer, I’m afraid, was not terribly encouraging.  A PhD without a J.D. will raise hackles on many faculties who want law professors to be lawyers.  And where a candidate has both a PhD and a J.D., the pedigree of both degrees will matter more than the presence of the degrees themselves.  Moreover, I’d hazard to guess that other factors may be more important to hiring committees, namely prior work experience in international law (which I think still matters), publications with an emphasis on the “s”, and having had a prior fellowship.  Indeed, according to Lawsky, 84% of the 2014 hires came from a fellowship program (in contrast, 19 candidates had PhDs and none of these were in international law).  And, of course, networking and ‘who knows you’ may actually be the most important aspects of a candidacy in a market that’s become so small.

Given the harsh hiring reality, my second question is what does the future hold for international law teaching, at least in the United States?  Will prospective candidates simply keep their day jobs and avoid testing the market altogether? Will folks take a “wait and see” attitude, hoping for a rebound in interest and hiring in 3-5 years?  Or, will candidates go abroad to try and teach? My sense is that the market in Europe for international law teaching has not suffered the same downturn currently plaguing the United States, and thus there may be more opportunities there. Similarly, I know from a number of post-docs who I’ve worked with that China, Singapore and other areas in the Far East are paying more (not less) attention to international law as well. I’d be interested to hear from more knowledgeable readers what the state of the European and Asian markets are for international law academics (and whether there are other teaching markets potential candidates should consider).

Third, and finally, I wonder if it’s a good or bad thing to have fewer new international law professors entering the profession?  I’m inclined to look at it negatively on the assumption that international law work will continue to rise, not just as a stand-alone profession for lawyers, but as a component of the work all lawyers do in an increasingly globalized world.  As such, there should be sufficient faculty to introduce students to this area and the legal work it involves. Others, however, I suspect might suggest the pendulum has swung too far and that U.S. law schools are devoting too much time and energy to international law in both curricular and hiring contexts, saying that the on-going re-adjustment is therefore a good outcome.  Still others might argue that the issue is idiosyncratic; as law schools start to move away from uniform aspirations, a case could be made that certain law schools should become more focused on international law by virtue of their history, geography, or market placement at the same time as other law schools’ circumstances make the case for devoting less attention to international law. 

What do readers think?  Is there any hope for someone trying to get a U.S. law teaching job in international law in 2014-15?  Are there alternative places candidates should look if, in fact, U.S. law schools are hanging out ‘no vacancy’ signs in international law?  And, how worried should we be about this situation, whether in the short, medium, or long-term?

[UPDATE:  With a hat tip to Peter Spiro, it seems Sarah Lawsky did track hiring candidates by subject matter, so we can actually see how many of this year's lucky hires expressed an interest in international law.  By my count it looks like there are 2 candidates who identified international law as their primary area of interest and one who did so for international trade.  Three other candidates identified international as a third or fourth area of interest.]