Armed Private Security Companies (APSC) doing business with the UN are now subject to a new set of practices and protocols that contain a multi-stakeholder monitoring and complaints mechanism.   These practices and protocols are set forth in the International Code of Conduct for Private Security Providers (“Code”), which the UN incorporates via its new Guidelines on the Use of Armed Security Services from Private Security Companies (“Guidelines”) (to be read in conjunction with the UN’s Security Policy Manual, Chapter IV, Section I, “Armed Private Security Companies”).

The UN now requires that APSCs comply with the Code, and limits its hiring of armed APSCs to those that cooperate with the mechanism, as detailed in Section F of the Guidelines.  Prior to commencing UN service, the Guidelines require the APSC to provide training to its personnel on, among other things:

• cultural sensitivity training
• Human Rights Law and application
• Use of Force training
• integrity and ethical awareness
• preventing sexual harassment

James Cockayne provides a good overview of the context and content of the Guidelines over at the IPI’s Global Observatory.

The effort is significant for a few reasons.  First, it demonstrates a new effort towards regulating the activities of the UN’s numerous commercial partners in the peace and security field.   This effort to implement and maintain international standards will replace practices that many have described as incoherent and inconsistent (as described in the report here).

Second, these UN specific Guidelines supplement a general but stalled effort to create a multilateral convention on private military and security companies, and will consequently contribute to the soft law in the field.   The most recent draft (from 2010) is available here.  The UN is thus to be applauded for introducing the Guidelines at this time, as opposed to stepping back and waiting for the multilateral process to mature.

Finally, the Guidelines are indicative of a general move towards multi-stakeholder regulation of non-state actors.   This trend has been noted in other international areas including health, as this paper by Professors Abbott and Gartner make clear.   The oversight mechanism here will be established as an association under Swiss law.  It will be governed by two multistakeholder bodies: a General Assembly and a Board. There are three ‘pillars’ in each composed of civil society, industry and states/IOs.  Voting is arranged so as to give any pillar the power to block a decision.  As a result, states, civil society organizations, and industry must cooperate in the Association’s certification, human rights monitoring and complaints mechanism processes.

The oversight mechanism works by requiring the Association to review APSC performance under the Code through external monitoring and self-reporting based on established criteria.  If an APSC violates the code, the Association can initiate suspension proceedings.  For proceedings launched by individuals, the Board can also set up a grievance process to ensure an effective remedy.

I am interested in what OJ readers think.  Will this approach fill an accountability gap by improving   human rights compliance in the field?  Moreover, will this soft law approach establish new benchmarks for an eventual multilateral treaty?  There will be a panel on this topic at the annual ASIL meeting later this week which will be well worth attending.

As many of our readers may know, ASIL’s 107th Annual Meeting with the theme of International Law in a Multipolar World is taking place in Washington D.C. at the Marriott Renaissance Hotel today through Saturday.

Select highlights of the meeting include:

• The Grotius Lecture, with Emilio Álvarez Icaza, Executive Secretary, Inter-American Commission on Human Rights as the Speaker and W. Michael Reisman, Yale Law School as the Distinguished Discussant (Wednesday, April 3).
  
• The Women in International Law Interest Group Luncheon, featuring Diane Marie Amann as the Honoree/Speaker and a plenary discussion about International Law in the Obama Administration: The First Four Years. Donald Francis Donavan of Debevoise & Plimpton will moderate the plenary among Harold Hongju Koh, Yale Law School; Michael H. Posner, Department of State; and Anne-Marie Slaughter of Princeton University (Thursday, April 4).
• The Hudson Medal Luncheon will feature Judge Bruno Simma of the Iran-U.S. Claims Tribunal as the Speaker/Honoree and will be moderated by Joseph Weiler of New York University School of Law (Friday, April 5).
• The Inaugural Charles N. Brower Lecture will be delivered by V.V. Johnny Veeder. A plenary panel will follow to discuss Twenty Years of International Criminal Law: From ICTY to ICC and Beyond, moderated by Abi Williams, President of The Hague Institute for Global Justice and featuring Fatou Bensouda, Prosecutor of the International Criminal Court and Theodore Meron, President of the International Criminal Tribunal for the Former Yugoslavia and the International Residual Mechanism for Criminal Tribunals (Friday, April 5).
• The Closing Plenary will discuss Global Governance, State Sovereignty and the Future of International Law, moderated by José Alvarez of New York University School of Law and featuring Judge Bruno Simma of the Iran-U.S. Claims Tribunal, Judge Xue Hanqin of the International Court of Justice and Joel P. Trachtman of the Fletcher School of Dipomacy at Tufts University (Saturday, April 6).
• Our own Julian Ku will be moderating a panel on China and International Law featuring Jacques DeLisle, University of Pennsylvania School of Law; Bing Bing Jia, Tsinghua University Law School; and Stephanie Klein-Ahlbrandt, International Crisis Group (Friday, April 5)
• Our own Roger Alford will moderate a panel on Kiobel, the ATS and Human Rights Litigation in US Courts. Panelists will be John B. Bellinger, Arnold & Porter, LLP; Lori Damrosch, Columbia University; David Scheffer, Northwestern University; and Elizabeth Wilson, Seton Hall University (Friday, April 5). Roger will also be participating in a discussion about Jeremy Waldron’s new book, “Partly Laws Common to All Mankind”, Foreign Laws in American Courts (Friday, April 5).
• Our own Chris Borgen will co-chair the Space Law Interest Group Business Meeting (Friday, April 5).
• And our own Kevin Heller is on the ASIL Annual Meeting Program committee, led by Laurence Boisson de Chazournes, University of Geneva; Stanimir Alexandrov, Sidley Austin, LLP; and Kal Raustiala, University of California Los Angeles School of Law.

Additionally, our friends at ASIL have asked us to help spread the word about another event taking place during the meeting. The event is Connecting Junior and Senior International Law Academics and it will take place Thursday, April 4, 2013, from 3:15-4:45 p.m. in the Renaissance East Ballroom.

This event, as its title suggests, it is focused on creating new intellectual and mentoring relationships among junior and senior international law academics. It will provide opportunities for people to meet other academics who share similar substantive and conceptual interests through small group discussions and “speed dating.” Please attend to meet new and interesting colleagues and to support ASIL’s junior academic members in their development.

The full program can be found and downloaded here (.pdf). Some of the sessions will be live streamed here and you can follow ASIL Cables, the online daily reporter of the 107th ASIL Meeting. OUP Blog has prepared for the meeting in a post here.

A depressingly large number of U.S. media outlets are covering the Italian Supreme Court’s decision to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted in trial court, but that conviction was overturned on appeal.

I say depressing because this is hardly the most significant international criminal trial going on these days. It is also depressing because most of the U.S. media coverage, and even the “expert” legal commentary, can’t seem to understand that if Italy requests Knox’ extradition, Knox has no double jeopardy defense.

The biggest mistake made by most of the media commentary (I’m looking at you Alan Dershowitz and various law prof types here) is that almost no one seems to have read the U.S. Italy Extradition Treaty.  Article VI reads:

Extradition shall not be granted when the person sought has been convicted, acquitted, or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested

(Emphasis added.) The Requested Party in this scenario would be the United States (Italy would be the “Requesting Party”).  The U.S. has never charged Knox with anything, much less with the murder of her UK roommate.  So Article VI does not bar Knox’ extradition to Italy. Period.

What about the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy? Well, the short answer is that the Fifth Amendment’s Double Jeopardy Protection doesn’t apply in an extradition proceeding since the U.S. is not the one trying Knox (they are just handing her over).  The long answer is that even if the Fifth Amendment did apply, under US law, an appeal that overturns a lower court conviction is not an acquittal for purposes of the Fifth Amendment.  That is basically what happened here.  Knox was convicted, then her conviction was overturned on appeal, and then the appellate court judgment was reversed, and a new trial ordered (albeit at the appellate level). This is not double jeopardy, either under Italian law or US law.

So Knox had better get ready to be extradited, or she better get ready to move to Brazil. She has no serious double jeopardy defense here that I can see.  Now, if only someone would tell Alan Dershowitz.

[James Hathaway is the James E. and Sarah A. Degan Professor of Law and the Director, Program in Refugee and Asylum Law at the University of Michigan Law School]

Finally, a break-through on the conundrum of Refugee Convention supervision!  The UN Refugee Convention has languished for more than 60 years without any formal mechanism to provide arms-length international oversight of treaty obligations.  While state parties agree to assist UNHCR to implement its duty of institutional supervision, refugee law has no equivalent of the Human Rights Committee or Committee Against Torture to provide transparent evaluation of state compliance, or to provide authoritative guidance — for example, on such key questions as who qualifies for Convention refugee status, or the rights held by refugees under international law.

In September 2012, Justice Tony North of the Australian Federal Court (and former president of the International Association of Refugee Law Judges) and I co-convened an expert meeting at Downing College, Cambridge, to try to find a way forward on supervision of the Refugee Convention.  Drawing on studies prepared by the Cambridge Pro Bono Project (to be published later this year), a group of leading jurists and scholars from around the world conceived a means to break the deadlock.  The essence of the mechanism proposed is the establishment of a Special Committee of Experts, comprised of judges and others tasked with the issuance of advisory opinions at the request of the High Commissioner, courts, and specialist tribunals. The just-released Summary Conclusions of the Roundtable (.pdf) are now available.

The 2011 ICRC Report, “International Law and the Challenge of Contemporary Armed Conflicts,” raised many issues that get discussed weekly here at OJ.  “Intercross,” the blog page of the International Committee of the Red Cross, has selected four of the leading issues from the report for discussion by experts.  The four are: typologies of conflicts; IHL and terrorism; new technologies of warfare; and multinational operations.  The head of the ICRC legal department, Knut Doermann, introduces the whole series at Intercross, and the current theme – typologies of conflicts – is now underway.  It gets going with a podcast on typology from my old friend, and legal adviser to the ICRC, Jelena Pejic, and then moves to guest posts.  The first is by Geoffrey Corn, well known to OJ readers, course. The second is by my old friend and colleague here at Washington College of Law, Bob Goldman, long an eminent voice in international humanitarian law, human rights law, and particularly their application in the Americas. The whole series is well worth following.

Those interested in the intersection of technology with international law may wish to join a new group formed within the American Society of International Law (ASIL). Headed by Molly Land and Anupam Chander, the International Law and Technology Interest Group (ILTechIG) provides a forum for scholars and practitioners from a variety of international legal fields to exchange ideas about technology’s relationship to international and transnational law. The group is also led by Paul Berman (Co-Chair Elect) and Greg McNeal (Secretary/Treasurer)

Technology poses increasing challenges for international law. For example, international trade treaties must grapples with questions of data flows, privacy, and digital products and services. The emergence of cyberspace challenges traditional conceptions of both civil and criminal jurisdiction. The laws of war must grapple with the development of warfare through drones and the difficulty of identifying state action in the online realm. International environmental law faces advances in nanotechnology, deep seabed mining, space technologies, and even the possibility of geo-engineering. Technology also plays an important role in human rights and humanitarian law, ranging from the use of mobile phones for delivering health services to mapping human rights abuses or disaster response. ILTechIG will help create a focal point for discussion of these various issues.

The group will host a scholarly roundtable at Tillar House (ASIL’s headquarters) in Washington, D.C. on Monday, April 8, 2013, following ASIL’s Annual Meeting. One does not need to be an ASIL member to attend the roundtable, though there is a modest registration fee to defray the costs of meals.

The following papers have been selected for presentation at the April roundtable:

Margot E. Kaminski, Yale Law School
“Copyright Crime and Punishment: The First Amendment’s Proportionality Problem”

Uyen P. Le, UC Davis School of Law
“Online and Linked In, ‘Public Morals’ in the Human Rights and Trade Networks”

Kuei-Jung Ni, Institute of Technology Law, NCTU, Taiwan
“Legal Aspects (Barriers) of Applying Compulsory Licenses on Green Technologies”

David G. Post, Temple University James E. Beasley School of Law
“Some Preliminary Thoughts on ‘Internet Governance’”

Markus Wagner, University of Miami School of Law
“New Technologies, Perfectly Fine Old Law? Autonomous Weapons and ius in bello”

If you are interested in attending, please RSVP to Molly Land (molly [dot] land [at] nyls [dot] edu) by Friday, March 29th.

Readers might be interested in this piece I’ve posted over at Foreign Policy with a co-author highlighting the virtues of the criminal courts as an essential tool in counterterrorism. Beyond the stats themselves – nearly 500 criminal cases related to international terrorism since 9/11, including 67 cases involving defendants captured overseas according to DOJ -I’d say the real significance of the piece is the co-author: Phil Carter, Obama’s first Deputy Assistant Secretary of Defense for Detainee Policy, who has faced the joys of trying to close Guantanamo firsthand. Here’s a snippet.

The debate about the role of military force in counterterrorism has crystallized recently with arguments for (and here in Foreign Policy, against) a revised, updated, and expanded Authorization for Use of Military Force, the law passed just days after 9/11 that provides the core legal basis for current U.S. counterterrorism operations. The case for a new AUMF builds from the premise that, while our foes may be changing, our need for military force to fight them is no different now than it was in the fall of 2001.

That is a flawed premise. As with the end of World War II or the end of the Cold War, we are at a historic inflection point. The war in Iraq is over, the war in Afghanistan is ending, and the United States and its allies have disrupted, dismantled, and degraded al Qaeda and many of its confederates. We now have a wealth of tools and capabilities to fight terrorism — tools that did not exist in 2001. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy. The Abu Ghaith, Harun, and Warsame cases, and the many like them, show we are ready.

[Emilie M. Hafner-Burton is a Professor at the School of International Relationship and Pacific Studies, IR/PS, at the University of California San Diego and Director of the Laboratory on International Law and Regulation. David G. Victor is a Professor at the School of International Relationship and Pacific Studies, IR/PS, at the University of California San Diego and Director of the Laboratory on International Law and Regulation.]

Over the last decade there has been a surge in scholarship on the economics of international law (see Goldsmith & Posner, Posner & Sykes, Guzman and Pauwelyn). On almost every topic in international law—from the practical import of customary law to the repayment of “odious debt” to the laws of war—the economic perspective offers important insights into how international law actually works. At last there’s one book to introduce the basic concepts and illustrate their utility.  Law students and academics, alike, will welcome Eric Posner and Alan Sykes’ Economic Foundations of International Law.

This new book will likely gain most of its readership in law schools, but for scholars the book’s greatest value may lie in helping to deepen communication between political scientists and lawyers who have been part of the “empirical turn” in research on international law. Posner and Sykes—and the method of economic analysis of law—will help political scientists disentangle the many ways that law affects behavior and actually measure those effects.  While quantitative empirical research will never reveal the full color of why states create and honor international law, this line of collaboration between lawyers and political scientists can help reveal exactly which types of international laws actually help states advance their interests and solve collective policy problems.
(more…)

It should be no surprise that there is an amicus brief in support of striking down the Defense of Marriage Act from a global angle, charting an international trend towards recognition of same-sex marriages. (The brief is on behalf of a select lawprof group – Harold Koh, Sarah Cleveland, Larry Helfer, and Ryan Goodman, part of a trend toward elite, small-list amici filings also evident here and here.) The brief skillfully plays to the Court’s self-interest and the opportunity to enhance its international prestige: “Courts in other countries have invoked this Court’s reasoning in Lawrence, for example, to strike down laws that impinge upon the intimate relations between gay and lesbian couples. The Court’s ruling in this case is likely to have similar influence.” That’s a line that might appeal to a certain swing Justice.

At the same time, there’s no hint in the brief that international law requires the recognition of gay marriage, an argument that would be hard to make. The brief does no overreaching, well advised in the face of serious blowback to the Court’s recent invocations of international law on the way to progressive results. The caution starts with the cover page: the brief is filed on behalf of “foreign and comparative law experts,” not international law ones.

Leave the international law argument to . . . Jeremy Rabkin?

Rabkin and a group of mostly European academics and former jurists have filed a brief in support of California’s decision (through the ballot measure Proposition 8) to reserve marriage for opposite-sex couples. The basic argument: most countries have left the question to democratic processes, which “national and international courts have overwhelmingly refused to trump.” That fact establishes, the brief argues, that there are “rational, non-invidious reasons based in secular public policy considerations” for a jurisdiction’s refusal to recognize same-sex marriage. Variation on the question is fully compatible with “international norms.” [My quotation marks, not theirs!]

The brief carefully qualifies the salience of international practice. “Of course, foreign law and practice cannot and should not determine the meaning of U.S. Constitutional guarantees.” But that practice apparently stands as an empirical resource, a “lesson,” at least.

In the end, I suspect the Court will ignore foreign and international practice in the Windsor and Perry decisions, consistent with its recent posture to things foreign. But the gay marriage cases might mark an important turning point on this particular front of the Culture Wars. With their brief, conservatives may have conceded the threshold salience of international practices. The door can’t be completely shut on this material, whether the Court expressly acknowledges it or not. Once they’ve played the international law card themselves, conservatives can hardly cry foul next time it’s played against them. (Rabkin himself will have to lose the label “fantasy world“ when speaking of international law.) Perhaps conservatives have come to understand that they can win on this turf, too. (Check out Justice Scalia’s dissent in Roper for pointers.) The bottom line: global practice becomes more deeply entrenched in the everyday of American constitutional law.

Jhesus-Maria, King of England, and you, Duke of Bedford, who call yourself regent of the Kingdom of France, you, Guillaume de la Poule, count of Suffort, Jean, sire of Talbot, and you, Thomas, sire of Scales, who call yourselves lieutenants of the Duke of Bedford, acknowledge the summons of the King of Heaven.  Render to the Maid here sent by God the King of Heaven, the keys of all the good towns which you have taken and violated in France.  She is here come by God’s will to reclaim the blood royal.  She is very ready to make peace, if you will acknowledge her to be right, provided that France you render, and pay for having held it.  And you, archers, companions of war, men-at-arms and others who are before the town of Orleans, go away into your own country, by God.  And if so be not done, expect news of the Maid who will come to see you shortly, to your very great injury.  King of England, if you do not so, I am chief-in-war and in whatever place I attain your people in France, I will make them quit it willy-nilly.  And if they will not obey, I will have them all slain; I am here sent by God, the King of Heaven, body for body, to drive you out of all France … (Written this Tuesday of Holy Week, March 22, 1429.)

Joan of Arc, the Maid of Orleans, sends a formal letter of summons to the English upon the siege of Orleans.  (I post this once a year on this date at all the places I blog.)

Update:  Over at Volokh Conspiracy, my friend and co-blogger Ilya Somin gives us an example of a much, much shorter form for declaring war, from the 10th century Prince of Kiev.

From Dan Klaidman of the publication formerly known as Newsweek, here’s what I’d call good news: “Three senior U.S. officials tell The Daily Beast that the White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department.”

There’ve been hints in the press before that new CIA Director John Brennan in particular favored this approach, but this makes it sound as though it may soon become a reality. Why do I think it’s good news, at least on the relative scale of U.S. targeting operations? A combination of reasons, both legal and organizational, which tend to persuade me that Defense Department (DOD) targeting authority is better constrained than CIA. (more…)

For those of you who are trying to decide where to publish your article during this submission cycle, my friend and former colleague Rob Anderson has identified an interesting Google metric for measuring the most-cited international law journals. As he notes:

“The rankings are based on Jorge Hirsch’s “h-index,” which is an alternative to impact factor as a measure of a journal’s importance. The new Google rankings will be yet another entrant for ranking law reviews alongside Washington and Lee’s rankings.”

Here’s the Google Scholar h-index ranking of international law journals:

1. American Journal of International Law
2. Human Rights Quarterly
3. European Journal of International Law
4. American Journal of Comparative Law
5. Virginia Journal of International Law
6. European Law Journal
7. Chicago Journal of International Law
8. Journal of International Economic Law
9. Global Governance: A Review of Multilateralism and International Organizations
10. Common market law review
11. Journal of International Criminal Justice
12. International Journal of Constitutional Law
13. Fordham International Law Journal
14. International Journal of Transitional Justice
15. German Law Journal
16. Vanderbilt Journal of Transnational Law
17. Human Rights Law Review
18. Cornell International Law Journal
19. Michigan Journal of International Law
20. New York University Journal of International Law & Policy

You can also see how international law journals rank relative to other journals here.

It is worth emphasizing that not every international journal is in the Google Scholar database, so one should take these rankings with a grain of salt. For example, neither the Harvard International Law Journal nor the Yale Journal of International Law is in the Google Scholar database. But at least for those journals that are in the database, it gives one a good sense of the relative influence of each journal.

If you are trying to compare the rankings of each journal where your article has been accepted, you can type the name of the journal into the Google Scholar search engine to get the h-index for that journal. The higher the h-index score, the more cited the journal.