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Weekly News Wrap: Monday, January 18, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

  • Burkina Faso and Mali have agreed to work together to counter the growing threat of Islamic militants in West Africa by sharing intelligence and conducting joint security patrols following two deadly and well-coordinated attacks in the region.
  • The UN says the worst drought in 30 years in Ethiopia means 400,000 children are suffering from severe acute malnutrition and more than 10 million people need food aid.
  • Somalia received a pledge of aid for $50 million from Saudi Arabia this month on the same day it announced it was cutting ties with Saudi rival Iran, a document seen by Reuters showed.

Middle East and Northern Africa

  • At least 42 people have been killed, including civilians, in suspected Russian air strikes in Syria’s Raqqa province, activists and a monitoring group say.
  • Iran’s President Hassan Rouhani has described as “historic” and a “great victory” the lifting of sanctions against Iran, declaring that the country is now reopening its doors to the international economy.
  • Islamic State militants kidnapped at least 400 civilians when they attacked government-held areas in the eastern Syrian city of Deir al-Zor on Saturday, a monitoring group said.

Asia

Europe

Americas

  • US president Barack Obama is expected to release a new plan in a bid to convince Congress to close Guantanamo Bay prison.
  • Two Swedish citizens whom U.S. prosecutors said fought alongside the Islamist militant group al Shabaab in Somalia in battles to take control of the country’s capital of Mogadishu were sentenced to 11 years in prison on Friday.

Oceania

UN/World

Gaza Flotilla Activists’ Lawsuit Against Israel Will Probably Fail for Lack of U.S. Jurisdiction (Updated)

by Julian Ku

[Please see the update below] Three U.S. citizens, and one Belgian national, have filed a civil lawsuit in U.S. District Court in Washington D.C. against the State of Israel alleging various injuries and damages suffered during an Israeli commando raid on their U.S.-registered ship.  The plaintiffs were activists who were sailing their vessel in support of the Palestinians on the Gaza Strip suffering under what the plaintiffs allege is an Israeli blockade. I don’t have a copy of the complaint, but according to this Washington Post report, there are a couple of pretty big legal obstacles for the plaintiffs to overcome.

“The attack on the high seas was unjustified and illegal under international law,” lawyer Steven M. Schneebaum of Washington wrote in a 21-page complaint, which alleged that the military operations injured more than 150 protesters and included torture, cruel or degrading treatment, arbitrary arrest and assault.

The first problem for the plaintiffs will be overcoming the Foreign Sovereign Immunities Act, which bars U.S. courts from hearing cases against foreign sovereigns like Israel unless certain exceptions apply.  I can’t tell exactly from the report which exception the plaintiffs are trying to invoke, but the allegations of “torture, cruel and degrading treatment” etc. suggests the complaint is trying to allege such an egregious violation of international law that any defense of immunity will be deemed to have been “waived” by Israel.   I am highly doubtful that this argument will succeed, and indeed, I am fairly sure it is foreclosed by precedents in the D.C. Circuit (and elsewhere).

It is possible that the plaintiffs will seek to get jurisdiction under the “state-sponsored terrorism” exception in 28 U.S.C. § 1605A(a)(1).  This might seem to apply, if we accept the plaintiffs’ claims as true, except that Israel would also have be designated by the U.S. government as a “state sponsor” of terrorism in order for the exception to apply.   Israel, needless to say, has not been so designated by the U.S. government, so this exception doesn’t work for the plaintiffs either.

It also appears the plaintiffs may have a statute of limitations problem as well, but I am not sure.  Also, was that ship U.S.-registered? If so, which tort law would apply? Or is it a claim under international law?

So I am pretty doubtful that this lawsuit will survive a motion by Israel to dismiss the case for lack of jurisdiction.   Indeed, I wonder at its even being filed, given the jurisdictional problems it faces.  But perhaps I am missing something, and if so, feel free to let me know in the comments.

[Update: Jordan Paust and Ted Folkman point out in the comments that the plaintiffs are probably invoking either the “international agreements” exception in the FSIA or the “noncommercial tort” exception in 28 USC § 1605(a)(5), which allows an exception to immunity for claims “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state…”

These are a much more plausible claims, and they depends (as Ted points out) on the idea that the raid on the US-flagged vessel means that the alleged tort occurred “in the United States.”   The leading decision is Argentine Republic v. Amerada Hess, which involved an Argentine missile strike on a Liberian-flagged ship owned by U.S. interests. That case held though that the “high seas” is not “in the United States” for purposes of the FSIA.  The only variation on this point I can see is that that the attack occurred on a U.S.-flagged vessel, as opposed to the “high seas.” I doubt this will fly, but I suppose it is worth a shot if I were the plaintiffs.]  

Autonomous Legal Reasoning: Legal and Ethical Issues in the Technologies of Conflict

by Duncan Hollis

One of the highlights of my Fall semester was the opportunity to host a one-day workshop at Temple Law on how autonomous technology may impact the future of international humanitarian law (IHL) and the lawyers who practice it.  With co-sponsorship from the International Committee of the Red Cross (specifically, Rob Ramey and Tracey Begley) as well as Gary Brown of Marine Corps University, we wanted to have an inter-disciplinary conversation on the way autonomy may implicate the practice of law across a range of new technologies, including cyberwar, drones, and the potential for fully autonomous lethal weapons.  Although these technologies share common characteristics — most notably their ability (and sometimes their need) to operate in the absence of direct human control — discursive silos have emerged where these technologies tend to be discussed in isolation.

Our workshop sought to bridge this divide by including experts on all three technologies from an array of disciplinary backgrounds, including IHL, political science, and ethics (see here for a list of participants).  Fortunately, the day itself lived up to the hype, with a detailed agenda that prompted a wide-ranging set of conversations on the nature of the technology, the ethical issues, as well as IHL’s current regulations and its likely future evolution.  Subject to the Chatham House Rule, the ICRC has published summaries of these conversations on their blog, Intercross.

In addition to those blog posts, the Temple International and Comparative Law Journal will publish a series of short (and often provocative) think-pieces written for the workshop.  My own contribution, Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law is now available on SSRN.  Here’s the abstract:

This short essay seeks to reorient — and broaden — the existing discourse on international humanitarian law (IHL) and autonomous weapons. Written for a conference co-sponsored by the International Committee of the Red Cross, it employs a contextual analysis to pose new questions (and reformulate others) regarding the relationship between IHL and autonomous weapon systems. It asks six questions: (1) Who should IHL regulate in this context? Does IHL only regulate States and individuals, or can it provide rules for autonomous weapon systems themselves? (2) What types of autonomous technology should IHL regulate? Should the current focus on kinetic weapons expand to encompass cyber operations? (3) Where should this discourse occur? How do the trade-offs involved in locating legal discourse in a particular forum impact the elaboration of IHL vis-à-vis autonomous systems? (4) When should IHL regulate autonomous weapons? Should IHL ban autonomous weapons now or allow its regulation to emerge incrementally over time? Can IHL only apply when an autonomous system’s operations constitute an attack, or should IHL’s application reach more broadly? (5) How should IHL regulate autonomous weapon systems? Are prohibitions better or worse than prescriptive authorities? Should IHL regulate via rules, standards, or principles? Finally, (6) why should IHL regulate autonomous weapons? How can IHL best prioritize among its foundations in military necessity, humanitarian values, and the practical reality that the development of such systems now appears inevitable. In asking these questions, my essay offers a critical lens for gauging the current scope (and state) of international legal discourse on this topic. In doing so, it sets the stage for new lines of inquiry that States and other stakeholders will need to address to fully understand the perils — and potential — of increasing autonomy in technology for IHL and the international lawyers who practice it.

Fans of Thomas Aquinas may be particularly interested in this piece since I ask these questions using the same analytical frame Aquinas deployed to delineate those circumstances that define human acts.  Otherwise, interested readers should keep an eye out for the Symposium volume itself, which should be out sometime later this Spring or early this coming Summer.

 

Guest Post: Merry-Go-Round Justice–The Retrial of Stanišić and Simatović

by Wayne Jordash

[Wayne Jordash , QC, is a Managing Partner of Global Rights Compliance LLP and a barrister at Doughty Street Chambers. He served as counsel for Jovica Stanišić in the proceedings described in this post and has been temporarily assigned for the new proceedings.]

On the 15 December 2015, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) Appeals Chamber ordered a retrial of Jovica Stanišić and Franko Simatović. The Appeals Chamber granted the Prosecution’s request that the decision to acquit be quashed because the Trial Chamber’s approach to joint criminal enterprise (“JCE”) and aiding and abetting were deficient. The retrial will take place under ICTY’s successor, the United Nations Mechanism for International Criminal Tribunals (“MICT”).

Before launching headlong into a discussion on the merits of the decision to order a retrial, it is worthwhile noting that intelligent minds often reasonably disagree on complex ICTY appellate issues. As the ICTY has learnt to its chagrin over the last few years, this is the nature of appeals and sometimes the storms must just be weathered. That said, in the final analysis, some minds might turn out to be more reasonable than others and the quality of the reasoning is as good as signpost as any of the true merits and bona fides of a decision and the prospects of it contributing to our understanding of the law. Accordingly, in the circumstances of the Stanišić and Simatović appeal, it is worthwhile beginning any discussion concerning the merits of the order for retrial with a discussion of the merits and reasoning of the substantive aspects of the appeal. It is instructive to contrast the arguable before moving to the indefensible.

First, for the JCE ground, the Majority of the Appeals Chamber concluded that the Majority in the Trial Chamber had made an error in the course of finding that Mr. Stanišić had not intended to pursue any criminal purpose. They argued that the Trial Chamber should have first considered whether the Serbian leadership had a plan to commit crimes in Croatia and Bosnia, what the scope of that plan was, who was involved and whether Mr. Stanišić’s acts contributed to the plan. They concluded that it was only by first reaching these definitive conclusions about the alleged criminal plan could Mr. Stanišić’s JCE intent be properly adjudicated. At first glance, this approach surely has a superficial attractiveness that warrants further consideration.

However, a closer examination of the underlying premise of this ground reminds us that all that glitters is not gold. The reasoning of the Appeals Chamber appears to suggest that it is not possible for a Trial Chamber to take a holistic view of the evidence and recognise an accused’s consistent avoidance of crime in order to reach a conclusion that the accused did not make a significant contribution to any criminal plan and had no criminal intent. Instead, it seems, the Trial Chamber should painstakingly describe the criminal plan in all its florid detail – even though they are convinced from an examination of the accused’s established conduct that he was consistently engaged in conduct that did not advance or further crime.

Logic suggests that if Mr. Stanišić was alleged to have taken part in a robbery of a bank, a trier of fact would be well-equipped to acquit on the basis that he established a solid alibi that showed he was elsewhere, involved in lawful activity and made no contribution to the specific acts alleged to be within the robbers’ plan. On the Majority view in the Stanišić appeal, it was impossible to be satisfied that Stanišić was acting lawfully without describing all of the robbery, even though he was not there, did not contribute to any aspect of it and was shown to be contemporaneously pursuing legitimate purposes.

The fact that the Majority in the Appeals Chamber eschews this type of analytical discussion in favour of bald assertions that JCE intent may only be inferred through a rigidly linear, calculative approach tells us something about the merits of the conclusion, even if reasonable minds could agree or disagree about some of the arguable points. As does the fact, as pointed out by Judge Afanđe in his eloquent dissent, that such an approach is a departure from previous analytical frameworks employed in cases such as Popović, Pandurević, Milutinović and others and Prlić and others. Whichever way it is spun, and however arguable the issues are, it does seem a little late in the day to be overturning acquittals on the basis that unbeknownst there is only one way to assess JCE intent.

Moreover, the trenchant critique of their fellow judges, Judge Agius and Judge Alfanđe, tells us how the Majority got to where they wanted to go and why there may be little that resembles adequate explanation or express reasoning. As stated by Judge Agius:

[i]t is unfortunate that the Majority’s approach contains a number of shortcomings. Not only is it difficult to identify and understand the Majority’s reasons from the text of Judgment, but in its limited discussion, I respectfully submit that the Majority: (i) misstates the applicable law; (ii) fails to reconcile its analysis, in any meaningful fashion with the learned submissions advanced by counsel for the parties; and (iii) takes the practice of the Appeals Chamber dramatically out of context when applying it to the circumstances of this case.

He finds the “lack of transparency” in the Majority’s approach “particularly troubling, in light of its own obligation to provide a reasoned judgment in writing.” That irony was also not lost on Judge Afanđe, who, whilst discussing the flaws in the Majority’s approach, mused on the Majority criticising the Trial Chamber for failing to provide adequate reasoning for its decisions while doing precisely the same thing: a classic case of kettle calling the pot.

Considering the other aspect of the substantive merits, the decision to reverse the acquittals rested on the Trial Chamber’s analysis of Stanišić’s mens rea that was arguably assessed through the lens of the much-debated ‘specific direction’ requirement. Even if one can once again bemoan the lack of reasoning and legal engagement, as with the JCE ground, one can at least see how the Majority of the Appeals Chamber got to where it wanted to go, even if reasonable minds might have queried whether in the particular analytical circumstances the application of specific direction had any meaningful impact on Stanišić’s aiding and abetting acquittals. Nonetheless, as many stakeholders in the international criminal process learn to their cost, this is sometimes the way the die is cast: discretion is discretion and that is the day-to-day business of criminal courts. (more…)

UGA Invites Applications for New Chair in International Law

by Peter Spiro

This from friend of OJ Harlan Cohen. The chair is in honor of Gabe Wilner, a longtime professor of international law at UGA.

The University of Georgia School of Law invites applications for a fully endowed professorship in international law beginning August of 2016. Applicants should be able to join the faculty at the rank of full professor. They should have a J.D. from an accredited university or its foreign equivalent, superior academic credentials and demonstrated excellence in scholarship and teaching. Applications received by February 1, 2016 are assured of consideration. All interested persons should submit a curriculum vitae, including scholarly publications, with a letter of interest at http://facultyjobs.uga.edu/postings/527

The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, sexual orientation, gender identity or protected veteran status.

The Washington Post Needs to Correct Its Syria Article

by Kevin Jon Heller

Karen De Young and Missy Ryan have a long article today in the Washington Post about internal USG debates over the rules of engagement in Syria. It’s a very interesting and generally excellent article, but it contain one major error:

International law allows for civilian casualties, even intentional ones, providing an action is within the bounds of distinction and proportionality, a somewhat subjective judgment that the military importance of the target is worth it.

No, international law does not allow intentional civilian casualties. Intentionally attacking civilians violates IHL’s principle of distinction and is a quintessential war crime. The sentence should read “international law allows for civilian casualties, even ones known to be certain, providing an action is within the bounds of proportionality…”

I have tweeted the authors of the article. I will update this post if they issue a correction.

Weaponized Archaeology and Sovereignty Disputes

by Chris Borgen

Underwater archaeologist Peter B. Campbell has a very interesting opinion piece in the New York Times about how archaeological claims are being used as political weapons in sovereignty disputes. He explains:

For decades, global powers have been engaged in a race to exploit lucrative marine resources, from oil to fisheries to control of strategic waterways. But they have faced a challenge: How can a country claim new territory despite the restrictions of the United Nations Convention on the Law of the Sea? It turns out that “historical ties” to resource-rich regions can conveniently help to contravene international law.

At issue is how archaeological research is being injected into political rhetoric on issues such as claims of sovereignty in the Arctic, in the South China Sea, and over Crimea.  Campbell writes:

China’s deputy minister of culture, Li Xiaojie, put it bluntly: “Marine archaeology is an exercise that demonstrates national sovereignty.”

Russia has followed suit. In 2011, when he was prime minister, Vladimir V. Putin made headlines by retrieving two ancient ceramic jars from a shipwreck at Phanagoria, the ancient Greek city that is 10 miles from Crimea. The media cast it as a publicity stunt, but alarm bells sounded within the archaeological community. Mr. Putin’s political allies had invested $3.5 billion in research at Phanagoria, a submerged harbor with Roman-era shipwrecks. And while Phanagoria was the site of Greek colonies, Russian nationalists have adopted its ancient kings as proto-Russians.

For now, these archaeological findings are being used more as ostensible support of political rhetoric rather than as evidence, in the technical legal sense, of title.  Claims of sovereignty are most clearly based on specific treaties, such as boundary delimitation treaties, or broader treaties that set-forth rules for resolving disputes, such as the UN Convention on the Law of the Sea (UNCLOS).

This does not deny that historical state practice can be a component in resolving a dispute. But there are standards for assessing such historical examples. As the Permanent Court of International Justice wrote in the Eastern Greenland case:

a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.

Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.

The ICJ quoted this language at paragraph 134 in its Pulau Ligitan and Pulau Sipadan judgment. In the case of maritime sovereignty claims, the goal would be to turn old shipwrecks into evidence of a continued display of authority, also known as effectivite. Anneliese Guess wrote that Canada’s then-Minister of the Environment said in 2008 that, in regards to the search for shipwrecks in the Northwest Passage:

 We certainly think by establishing a long-standing presence in the Arctic that can enhance issues of sovereignty … Look at the strait (the Northwest Passage) not far from where this ship is….We think every bit of weight we can put behind our case for sovereignty is important. Adding history to that equation can only enhance that case.

While historic state practice can be important, the ICJ’s discussion in Pulau Ligitan is a good example of how difficult it can to make such a claim of effectivite. In that case, the ICJ wrote that the facts must “leave no doubt as to their specific reference to the islands in dispute as such.” (para. 136) In Pulau Ligitan, the ICJ was unmoved by many of the examples of naval activities as proof of claims of sovereignty. How much harder still, with archaeological shipwrecks from a century ago, let alone from Roman times.

Modern international law, with its focus on treaty obligations and effective dates (that draw a bright line making some historical facts less important than others) is not likely to accord much weight to  shipwrecks such as those mentioned by Campbell. (And probably no weight to some of them.) Nonetheless, politicians spin and deploy these archaeological finds in their wars of words. But in the end, as Campbell reminds us,

…archaeology rarely fits simple narratives. In fact, archaeology often demonstrates our shared human past.

Selecting the New UN Secretary General

by Kristen Boon

With the end of Ban Ki-Moon’s term on the horizon, discussions about the next UN Secretary General, and more importantly how that person should be chosen, have moved front and center. A joint letter by the Presidents of the GA and Security Council was released on December 15, which sets forth a slightly new process.  It states:  “[The Presidents] will offer candidates opportunities for informal dialogues or meetings with the members of their respective bodies, while noting that any such interaction will be without prejudice to those who do not participate.”   These dialogues would take place before July 2016.

As the New York Times reported yesterday the letter remains vague on 2 points. First, on the question of whether a woman should lead the organization for the first time in 70 years it encourages nations to nominate “women as well as men” … second, on the tradition whereby each region gets a shot at the top job (with Eastern Europe being next in line) the language gave a nod to Russia’s concerns that “we note the regional diversity in the selection of previous secretaries general.”  Note the reference to past practices:  previous secretaries general.

Differences of opinion between the UK and Russia on the process held up the finalization of this letter for some time. The backstory can be found here.

This letter was issued pursuant to GA resolution 69/321 of 11 September 2015 provided a mandate for the GA on the issue, and “Requested the Presidents of the General Assembly and of the Security Council to start the process of soliciting candidates for the position of Secretary-General through a joint letter; to jointly circulate on an ongoing basis the names of individuals that have been submitted for consideration as candidates; and decided to conduct informal dialogues or meetings with candidates, without prejudice to any candidate who does not participate.”

To date, the campaign 1 for 7 billion reports 27 confirmed or prospective candidates including Angela Merkel, Helen Clark, and Danilo Turk. (Click on the candidates tab for more information).  General background on the efforts to change the appointments process is available here and here.

Specific Direction Again

by Jens David Ohlin

As already noted by others (including Kevin Heller, Marko Milanovic, and Dov Jacobs), the ICTY Appeals Chamber has overturned the acquittals of Jovica Stanisic and Franko Simatovic and remanded their case back to the Trial Chamber for the holding of a second trial. I want to discuss two issues pertaining to this decision.

The first pertains to the Specific Direction requirement for remote aiding and abetting of an organization that commits international crimes (yes, Specific Direction, again). There has been a long-standing dispute within the ICTY over aiding and abetting liability and whether Specific Direction is required by customary international law. The Perisic case said it was required, but then a differently composed Appeals Chamber disagreed in Sainovic. Now, finally, the Appeals Chamber has stated once again that the Specific Direction requirement is illusory (and hence the do-over for the Stanisic and Simatovic trial).

The unfortunate thing about the Appeals Chamber decision from Tuesday is how little we get in terms of actual legal rationale for the decision. Although the decision is almost 100 pages, only a few pages deal with specific direction. Of those, most are a summary of the positions of the parties in the case regarding specific direction. As for the court’s analysis, it is limited to one paragraph. And the argument in the paragraph itself does not touch the substance of the legal issue at all, and merely states that a previous appeals chamber had rejected the specific direction requirement, so the requirement does not apply. There is no analysis of how to understand precedent when there are contrary Appeals Chamber holdings, and even more distressingly no discussion of the underlying merits of the specific direction question, i.e. actual reasons why specific direction is not a part of the customary international law of aiding and abetting. All of this is left to the dissenting opinions. The court spends almost as much time and space devoted to the pressing legal issue of whether the defendant’s arguments should be rejected because the prosecution complained that the defendants failed to submit photocopies of the law review articles that they cited in their brief.

These facts highlight something that Heller, Milanovic, and Jacobs have already noted: The result was preordained from the beginning, given the composition of the Appeals Chamber and the number of judges who had previously (in the minority) opined that specific direction was not a formal requirement of customary international law. Incidentally, my complaint here is more about the lack of substantive engagement with the underlying issue, and not the result. Although I continue to think about the issue, I have been somewhat skeptical of specific direction for two reasons. First, the requirement seems to me a heightened mens rea standard akin to purpose, and not an actus reus requirement. Second, even if it is a heightened mens rea standard, it seems to me to be a house of cards built upon a strained reading of three words that were originally drafted, as dicta, in the original Tadic opinion, and which do not support the specific direction requirement. That being said, I do concede that there is evidence on both sides of the knowledge vs. purpose debate for aiding and betting under international law.

The second issue is that this case highlights, once again, a substantial defect in the ICTY’s procedural framework: the lack of an en banc hearing mechanism for the Appeals Chamber. Either all judges of the Appeals Chamber should hear all appeals (rather than use panels), or if panels are used, there should be an opportunity, in rare circumstances, to petition the Appeals Chamber for a second appeal to the entire Appeals Chamber sitting en banc. This would ensure that the decisions of the case are not based on the vagaries of the panel’s composition, which seems both arbitrary and unstable.  Future ad hoc tribunals (if there are any), should avoid this structural mechanism.

One final point: Stanisic and Simatovic attended the hearing in person, and therefore were detained and placed in custody in The Hague. I find this surprising (their voluntary appearance, not their detention). Anyone have any information on this decision? If they had stayed in Serbia, would they have voluntarily complied with the new arrest order or would they have run?  Would the government in Serbia have been willing and/or able to arrest them quickly if necessary?  Of course, these are all hypothetical and somewhat moot questions at this point.

A Note About Commenting on Opinio Juris

by Chris Borgen

This is a reminder to all readers and contributors concerning Opinio Juris’ policy regarding comments and posts. The “About Opinio Juris” page explains that:

We encourage civil and respectful dialogue among our bloggers, readers (who may post comments), and guest-bloggers. Our goal is to be both informative and thought-provoking by fostering vigorous intellectual engagement without vitriol. The marketplace of ideas is what we make of it.

[Emphasis added.]

Consequently, Opinio Juris maintains the right to edit or delete any comments that in our view does not meet the forum’s guidelines. This has been exceedingly rare.

One of the strengths of Opinio Juris is that our writers (both the masthead bloggers and our guest writers), commentors, and readers have a wide range of views. That breadth of perspective enriches the conversation. Please be respectful and constructive in your comments.

China Launches Op-Ed Rebuttal to Philippines’ Arbitration Case

by Julian Ku

The UNCLOS Arbitral Tribunal formed to consider the dispute between the Philippines and China gave China until January 1 to file a response to the arguments made by the Philippines at its most recent merits hearing.  China had not showed up at any of the hearings, nor has it submitted any official written arguments to the Tribunal.   I don’t know if China will file any submissions (don’t hold your breath), but its state-run flagship The People’s Daily has launched an op-ed fusillade this week attacking the Philippines. Perhaps, this is China’s response to the arguments made at the arbitral hearing.

The first editorial, “Grandstanding Cannot Cover Up Illegal Moves”, is focused on vilifying the Philippines’ for bringing this arbitration, and the remarks of its foreign minister Albert F. del Rosario. The criticism is mostly non-legal, accusing Mr. del Rosario of bad faith, speaking untruths, and being an all-around bad guy.  But the oped does contain the germ of a legal argument justifying China’s defiance of the UNCLOS tribunal:

State sovereignty is a core principle in contemporary international law. No force is above a sovereign state. No country, organization or individual could expect China to stand by and allow its interests to be harmed. Here is a piece of advice for people like Mr. del Rosario: Don’t misread the situation. The Chinese government and people are adamant about safeguarding China’s rights and interests in the South China Sea. All calculating moves against that would end up in failure.

The second editorial, China’s Sovereignty over the South China Sea Islands Brooks No Denial, offers more of a legal and factual argument.  Interestingly, the editorial relies heavily on the legal force of the 1943 Cairo Declaration and the 1945 Potsdam Declaration as the basis for China’s South China Sea claims over the disputed Spratly/Nansha Islands.  The theory here is that the Spratly/Nansha islands belonged to China, and that Japan forcibly occupied them during WWII.  Cairo and Potsdam required Japan to return all “stolen” territories, ergo, the South China Sea islands go back to China.

The Philippines (apparently) argued at the merits hearing that the Nansha Islands were “terra nullius” and were not included in the “stolen” territories that Japan had to return to China.  Moreover, the Philippines argued that the Cairo and Potsdam Declarations were not legally binding.

China responds with a factual claim (China has always had sovereignty over the islands) as well as legal claim (the Cairo and Potsdam Declarations are legally binding). This latter argument is not precisely accurate, although it is true that Japan promised to comply with Potsdam in its surrender.  But none of this changes the fact that neither Cairo nor Potsdam say anything about the Spratlys/Nansha specifically, and seem a weak legal basis for China’s claims to those islands.

In any event, the editorial is largely rhetorical rather than legal. It concludes by rallying the Chinese people against mysterious international forces threatening their sovereignty:

[T]he determination of the Chinese people to safeguard its territorial integrity is as firm as a rock. Only the Chinese people have the final say when it comes to China’s territory. Any attempt to negate China’s sovereignty, rights and interests through a so-called “arbitration award” will be nothing but wishful thinking, just like flowers in a mirror and reflection of the moon in water. By going back on its own words and confusing the concepts for the purpose of territorial expansion, the Philippines will only end up bringing disgrace on itself.

Gotta love the metaphors, although I doubt very much the Arbitral Tribunal will be in any way moved by them.

Is the Paris Agreement Historic?

by Daniel Bodansky

Paris

[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 sixth 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.]

COP-21 adopted the Paris Agreement (.pdf) at around 7:30 pm on Saturday night, a remarkably punctual conclusion by COP standards. There was a bit of drama at the end, over a “should” vs. “shall” in one of the provisions (more on that tomorrow), and the final plenary waited for more than an hour while the French presidency, the United States and Brazil tried to work it out. But there was none of the chaos and grandstanding that usually characterizes the end game of climate conferences.

How should we evaluate the Paris Agreement? Certainly, it satisfied the rather modest criteria of success I identified before the conference began. It is a solid outcome, and the French team that led the conference and the negotiators who worked round the clock to finalize the agreement can feel proud of their achievement. Compared to past climate conferences, the Paris conference is definitely cause for celebration.

But is the Paris Agreement historic, as speaker after speaker last night declared? If we focus only on the agreement’s relatively spare contents, it seems hardly the stuff of history. Yes, the agreement does some positive things: it requires countries to put forward “nationally determined contributions” (NDCs) – that is, pledges about what they will do to reduce emissions; it provides for transparency and review, to hold countries accountable for what they say; and it provides for a global stocktaking every 5 years and a process to update NDCs, in order to drive greater ambition over time. But one shouldn’t oversell these results. The NDCs put forward pre-Paris fall far short of putting the world on a pathway to holding temperature change to below 2° C. Countries’ NDCs are not legally binding. There is little new in the agreement on adaptation and finance. And the provisions regarding transparency and review are skeletal, and will need to be fleshed out by subsequent decisions.

Still, despite its relatively modest substance, the Paris Agreement is potentially pivotal, because it completes the paradigm shift from the bifurcated world of the Kyoto Protocol, which rigidly distinguished between “Annex I” and “non-Annex I” countries, to the common global framework that began to emerge in the Copenhagen Accord. The world has changed a great deal from 1992, when the UN Framework Convention on Climate Change was adopted and Annex I defined. Many of the world’s richest countries, like Singapore and Qatar, are still considered “developing” under the Convention’s outdated annexes. And, more importantly, most of the growth in greenhouse gas emissions over the next century will occur in “developing” countries. So reorienting the UN climate change regime to make it truly global is essential to solving the climate change problem.

Getting there wasn’t easy. Many developing countries were extremely reluctant to give up the deal they had gotten in Kyoto. That’s one of the reasons why the negotiations in Paris were so difficult. (Other reasons include the reluctance of donor countries to provide more finance and the need for the US to avoid commitments that might require Senate or Congressional approval.) In order to achieve a common approach, the US and other western countries had to accept somewhat limited provisions on transparency and updating. But this was a small price to pay, if the Paris agreement finally puts the climate regime on a broad-based, durable footing, which can be progressively strengthened over time. If that happens – and, of course, only time will tell – then the Paris agreement will merit the accolades that were showered on it today.