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That Syria War Power Debate, Continued

by Deborah Pearlstein

Cross-posted at Balkinization

If, as I argued earlier this week, the 2001 AUMF passed by Congress cannot be read to authorize the growing set of U.S. military actions against Syrian and Iranian forces in Syria, does the President’s Article II power standing alone support these strikes? The best articulated argument I’ve seen that the President has the Article II power to attack Syrian aircraft (or Iranian drones or any non-ISIS force in Syria) in the interest of defending U.S.-allied Syrian government rebels goes something like this. The President surely has Article II authority to act in defense of U.S. facilities and troops overseas without first waiting for congressional authorization, a necessary extension of the President’s power (on which there is near uniform agreement) to “repel sudden attacks.” As relevant here, this authority should be understood to extend to the defense of certain organized third parties (whether a state like Britain or our allied non-state Syrian Democratic Forces) operating (as Bobby Chesney puts it) “in close coordination with the U.S. military in a combat setting.” In such a situation, I take the idea to be, our interests are closely enough aligned and our military forces closely enough entangled, that an attack (or threatened attack) on a third party ally is effectively the same as an attack on us.

This ‘third party self-defense’ theory of the scope of Article II power is in one sense quite a bit narrower the currently prevailing position of the Justice Department Office of Legal Counsel – which, under President Obama, took the view that the President has constitutional authority to use military force on his own so long as an important U.S. interest was at stake, and so long as the quantum or nature of contemplated force didn’t actually amount to “war” within the meaning of the Constitution’s “declare war” clause. Under this OLC view – based in part on OLC’s assessment of post-World War II presidential practice – one need not develop any specialized theory of third party self-defense to justify the use of executive power here; the current President could surely assert one of several U.S. concerns in Syria as the important interest at stake (say, protecting the interest of regional stability), and so long as the strikes were limited in scope and duration (i.e. less than “war”), all of these actions could be said to fall within the scope of Article II, whether defense of battlefield allies was among the expressly named interests or not.

Yet there are at least three ways in which this ‘third party defense’ notion may be said to go beyond even the broad 2011 OLC conception of presidential power: (1) I am not aware of any previous practice in which the President has asserted the particular national interest of defending battlefield allies as such as a justification for authorizing the use of force abroad. Now it is surely one of the difficulties with the 2011 OLC opinion that it leaves so open-ended the question of what counts as an national interest sufficiently important for the President to use force, but if we are to take seriously the notion that past practice matters here, it would seem important to identify some at least analogous illustration on which to rely. (2) To the extent past examples of “important” national interests matter, the case for using force to protect a zone in a foreign country within which our own military might train opposition forces strikes me as vastly less impressive than the interest in, say, ridding the world of the scourge of chemical weapons. Indeed, the “de-confliction” zone we are now using force to protect is geographically just over the border from a country (Iraq) in which we have every right (thanks to that nation’s consent) to be operating militarily and, presumably, training anti-ISIL forces all we like. Above all, (3) in the 2011 Libya strike (and almost all previous post-World War II operations), unilateral executive uses of force abroad were taken in concert with UN authorities. For reasons I alluded to briefly in my previous post, both our downing of the Syrian jet and the recent U.S. strikes to preserve its non-state allies’ right to operate in the “de-confliction” zone appear to be in violation of the UN Charter (a treaty we are obligated to observe as supreme law of the land under our own Constitution’s Article VI). Whether one considers that an Article II problem, an Article VI problem, or simply a violation of international law – the United States’ legal position here is as precarious as it gets.

Beyond the Globalism/Nationalism Divide: The Rise of Cities and Corporations Seeking International Obligations

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

In withdrawing from the Paris Accord, President Donald Trump emphatically rejected globalism in favor of nationalism. “As president, I can put no other consideration before the well-being of American citizens,” he explained. “I am fighting every day for the great people of this country. Therefore, in order to fulfill my solemn duty to protect America and its citizens, the United States will withdraw from the Paris Climate Accord.” But might this strong endorsement of nationalism exacerbate divisions within the state, leading sub-state actors (like cities) and non-state actors (like corporations) to seek to undertake international obligations beyond the state?

The old domestic political divide between left and right, liberal and conservative, is giving way to a new division between globalists and nationalists. As White House advisers H.R. McMaster and Gary Cohn recently explained of Trump and his America First policy:

 The president embarked on his first foreign trip with a clear-eyed outlook that the world is not a “global community” but an arena where nations, nongovernmental actors, and businesses engage and compete for advantage. We bring to this forum unmatched military, political, economic, cultural, and moral strength. Rather than deny this elemental nature of international affairs, we embrace it.

Similar rhetoric has emerged in other domestic confrontations, such as in Marine Le Pen’s description of the battle in the French election as being one between “globalists” and “patriots.”

But focusing on the nationalist/globalist divide may encourage one to overlook how divided the “national” has become. In particular, cities are frequently more open, plural and cosmopolitan than their surrounding rural areas, and this is often particularly true of “global” cities like New York and London. Think of London’s vote to remain in the European Union as an example, or how votes are divided between the east and west coasts of America and much of the rest of America.

If many cities are more globalist than the nation states in which they are located, we may expect them to buck a return to nationalism. For instance, in withdrawing from the Paris Accord, Trump explained that: “I was elected to represent the citizens of Pittsburgh, not Paris.” Pittsburgh’s Mayor Bill Peduto quickly took to Twitter to reject his city’s name being taken in vain: “Pittsburgh stands with the world & will follow Paris Agreement. As the Mayor of Pittsburgh, I can assure you that we will follow the guidelines of the Paris Agreement for our people, our economy and future.”

Pittsburgh is not alone. A group of 30 mayors, three governors, more than 80 university presidents and more than 100 businesses are now trying negotiate with the United Nations to sign up to the Paris Accord. This effort is being led by Michael Bloomberg, the former New York City mayor. Such an attempt is extraordinary given that international law is generally premised on obligations being accepted by states, not sub-state units or non-state actors. But it is also echoes McMaster and Cohn’s statement that the international system is one “where nations, nongovernmental actors, and businesses engage and compete for advantage.”

The possibility of non-state actors or sub-state actors taking on international obligations is controversial, but not unheard of. Sandesh Sivakumaran and I have argued that certain non-state actors should be permitted to issue binding unilateral declarations through which they commit to international law obligations. There is some practice in support of such an approach. For example, Geneva Call, a Geneva-based organization, created a Deed of Commitment on anti-personnel mines that can be signed by “armed non-state actors.” The Deed largely parallels the commitments incumbent upon states parties to the Ottawa Convention on the Prohibition of Anti-Personnel Mines.

Such an approach might cross-apply to other non-state actors, like corporations. We did not consider whether a similar approach could apply to sub-state actors, like cities and states within a federal system. This approach may well be prohibited by the domestic laws of particular states that prevent sub-state entities from engaging in foreign relations. But perhaps, as a matter of international public policy, this approach should be permitted when non-state and sub-state actors seek to take on obligations in excess of those accepted by their state.  This would surely be controversial, however, as states jealously guard their law-making powers as a key attribute of statehood.

Yet in a world in which many cities and some companies are more globalist and environmentally concerned than their states, perhaps pressure for this sort of action will begin to mount. Indeed, we are starting to see collaborations emerging among cities and mayors both within and across nation states to deal with global issues like climate change. Consider, for example, the climate alliance established by California, New York and Washington and the Global Parliament of Mayors. If this trend continues, we will not have a nationalist world or a globalist one but a far more complicated reality where states, sub-state actors and non-state actors collaborate and compete both within and across state borders.

Far from a strong assertion of nationalism resulting in the primacy of the state, a strong America First approach in these circumstances may actually undermine the pre-eminence of the state, leading to greater domestic divisions between globalist, cosmopolitan cities and more nationalist, parochial rural areas. If global cities find that they have more in common with each other than with their states, what will this mean for the stability of a neo-nationalist approach? It may well be that in reasserting the primacy of nationalism, Trump will end up kicking another own goal.

Sound and Fury on the Paris Agreement – But Does It Signify Anything?

by Daniel Bodansky

[Daniel Bodansky is Foundation Professor of Law at the Sandra Day O’Connor College of Law, Arizona State University.]

As usual, in his announcement yesterday about the Paris Agreement, President Trump spoke loudly but carried a small stick.  Duncan laid out the options for withdrawal in his post earlier this week.  Rather than choosing the “nuclear option” of withdrawing from the UN Framework Convention on Climate Change, which President Trump could have initiated immediately and would have resulted in US withdrawal from the Paris Agreement a year from now, he opted to withdraw from the Paris Agreement pursuant to the Paris Agreement itself – a much slower process that requires him to wait until November 2019 to provide notice of withdrawal, and another year before the withdrawal takes effect.  Needless to say, a lot can happen between now and then.   Whether Trump feels the same way in 2019 as he does today is by no means certain, particularly since, judging from both his words and deeds, Trump views consistency as the hobgoblin of little minds.  As a result, his announcement throws red meat to his supporters and gives the finger to the rest of the world  (much the same thing) – but it doesn’t do anything concrete to withdraw the United States from the Paris Agreement.

But if the Trump announcement was weak on substance it was strong on rhetoric.  David Roberts has an excellent post over at Vox on “The 5 Biggest Deceptions in Trump’s Paris Climate Speech.” So I’ll be brief.  Suffice it to say that, in justifying his decision to withdraw from the Paris Agreement, President Trump trotted out the same warmed-over arguments that the Bush Administration made about the Kyoto Protocol:  it’s unfair to the US because it lets China and India off the hook; it’s a threat to US sovereignty, by putting the United States under the thumb of UN bureaucrats; and it would wreck the US economy.  These agreements may have had a kernel of truth with respect to the Kyoto Protocol, but they are completely wrong about the Paris Agreement.  The Paris Agreement was, in fact, designed to be the un-Kyoto. In contrast to Kyoto, it calls on all countries to make commitments to control emissions.  Rather than imposing internationally negotiated targets on countries, it gives parties complete flexibility to nationally-determine their emission reduction plans.  And rather than putting countries in a legal straightjacket that threatens their sovereignty, countries’ national emission commitments under the Paris Agreement are not legally binding.

Although the US will remain in the Paris Agreement through at least 2020, President Trump said that the US would stop implementing it in the meantime.  This appears directly at odds with general rule of treaty law, reflected in the Vienna Convention on the Law of Treaties, requiring states to perform in good faith treaties to which they are a party.  So long as the United States is a party to the Paris Agreement, it is obligated to comply with its commitments under the agreement.

For Trump, announcing his intention to withdraw from the Paris Agreement was a win-win-win: it shored up support among his base, diverted attention away from the Russia investigation, and allowed him to look decisive (after weeks of dithering about what to do).  For the rest of the world (including non-Trump America), the announcement was a significant setback in the international effort to address climate change.  But how serious a setback will depend, in part, on the reaction by other countries and by sub-national actors within the United States.   So far, the response has been encouraging.  Other countries, including China, Russia, India and European countries, have reaffirmed their commitment to the Paris Agreement and states and cities within the United States have created the United States Climate Alliance, dedicated to achieving the US goal of reducing emissions by 26-28% below 2005 levels by 2025.  If the United States reengages with the Paris Agreement after the 2020 elections, the Trump announcement may turn out to be a pothole for the United States, rather than a plunge off the cliff for the world.

What to Look for in any U.S. Withdrawal from the Paris Agreement

by Duncan Hollis

President Trump has indicated that he will announce a decision on future U.S. participation in the Paris Agreement later today at 3 pm. Reports suggest that he has already made up his mind to withdraw. That decision is likely to receive extensive attention (not to mention criticism) on the merits. And certainly that attention is warranted. But I believe an equally important issue will be how the Trump Administration pursues its withdrawal.

Contrary to popular opinion (and this erroneous NY Times Q&A), the Paris Agreement was never intended to be non-binding. It is, on its face, pretty clearly a treaty in the international law sense of that term (see the standard definition in Art. 2(1)(a) of the 1969 Vienna Convention on the Law Treaties (VCLT)). True, one key provision of the Paris Agreement (Article 4) contains language that does not evidence an intention to create legal rights or obligations (and the negotiation of which almost blew up the original deal). But the rest of the agreement was clearly intended to create a treaty and the language used manifests such intentions. For confirmation, one only has to look to the U.N. Treaty Office (which is home to some of the world’s leading experts on treaties) and note how it has always regarded the Paris Agreement as a treaty.

The United States formally joined the Paris Agreement on November 4, 2016, following its acceptance of that treaty on September 3, 2016. It is true that the United States did so without seeking the U.S. Senate’s advice and consent under Art. 2, cl. 2, section 2, nor did Congress specifically authorize U.S. participation as it did for treaties like NAFTA or the WTO Agreement. But U.S. treaty law and practice has long accommodated other means for the United States to enter into treaties in the international law sense, including through the President’s sole executive powers or where prior Congressional authorization supports U.S. participation. In the case of Paris, the precise grounds for U.S. acceptance are contested (see Dan Bodansky and Peter Spiro’s impressive take on these issues here).

As far as international law is concerned, however, there is little question that the United States is currently bound by its acceptance. The law of treaties is most famous for the foundational principle pacta sunt servanda, or as VCLT Art. 26 puts it, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” And for those less familiar with the VCLT, it is important to note that although the United States never joined the “treaty on treaties” every Administration since Richard Nixon’s has regarded almost all of its provisions as customary international law (the exceptions being provisions on signature and consultations in the event of breach). Thus, to withdraw or otherwise end its obligations under the Paris Agreement, the United States will have to look to the law of treaties. Indeed, VCLT Article 42 provides that a treaty’s validity or a State’s consent can only be impeached through the VCLT’s application and, more pertinently, “[t]he termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention.”

So, how can the United States get out from the Paris Agreement? I predict the Trump Administration will invoke one of four possible avenues for its exit later today.

An Alternative Justification for Israel’s Attacks on Hezbollah in Syria

by Ernesto Sanchez

[Ernesto J. Sanchez is an attorney in Miami, Florida who concentrates his practice on appellate and international dispute resolution matters. He is also a senior analyst for Wikistrat, a geostrategic analysis consultancy, as well as the author of The Foreign Sovereign Immunities Act Deskbook, published by the American Bar Association.]

Asaf Lubin’s excellent post on Just Security questioning why Israel’s repeated strikes against Hezbollah in Syria have not been the subject of the same degree of legal analysis as the recent U.S. attack on a Syrian airfield has received two notable responses. The first is from the eminent U.S. Air Force General Charles J. Dunlap (retired), who utilizes an anticipatory self-defense framework to defend the strikes and explain the consequent lack of jus ad bellum scrutiny the Israeli strikes have received. The second is from Opinio Juris’s very own Kevin Jon Heller, who has criticized General Dunlap’s analysis by calling the strikes “precisely the kind of anticipatory self-defense that international law prohibits.” A purely anticipatory self-defense framework, however, may not provide the best, or at least not the only, approach for examining the strikes’ legality because it entails looking at the strikes in isolation and not from the perspective of the state of war that has existed between Syria and Israel since 1967. It is this state of war that guarantees Israel’s basic right to launch strikes against Hezbollah in Syria at times of Israel’s choosing.

The fighting in the 1967 Six-Day War ended after Israel, Jordan, and Egypt agreed to abide by U.N. Security Council Resolution 234, a demand for a cease-fire on the parts of all belligerents, and a Syrian-Israeli cease-fire noted by U.N. Security Council 235. The October 1973 hostilities between Israel and an Arab state coalition including Syria popularly known as the Yom Kippur War was the subject of three U.N. Security Council cease-fire demands – U.N. Security Council Resolutions 338, 339, and 340. Resolution 340, enacted on October 25, 1973, was successful in regard to all the fighting save solely for that between Syria and Israel. Indeed, Israeli forces had driven deep into Syrian territory and continued to engage in skirmishes and artillery exchanges with their Syrian opponents. Only shuttle diplomacy by U.S. Secretary of State Henry Kissinger was able to produce a disengagement agreement between Syria and Israel based on U.N. Security Council Resolution 338 that mandated the exchange of prisoners of war, Israeli forces’ withdrawal to the Golan Heights territory captured in 1967, and the establishment of a U.N. buffer zone. That agreement took effect on May 31, 1974.

So how can a state of war between Syria and Israel have continued to the present day? After all, Mr. Lubin, in pointing out that Israel last engaged in protracted armed violence in Syria in 1974, asserts that “to suggest that an armed conflict [has been] ongoing ever since seems improbable, even under the most liberal interpretation of the way wars end and the termination of the application of international humanitarian law . . .” Tel Aviv University Professor Yoram Dinstein, a former Charles H. Stockton Professor of International Law at the U.S. Naval War College, notes in his book War, Aggression and Self-Defence that a war can end in one of five ways, none of which consist of a cease-fire alone.

  • A peace treaty, the ideal way of ending an interstate war, normally entails provisions that resolve the issues (e.g., agreement on the delimitation of borders) that drove belligerents to war in the first place and often includes guidelines for future amicable relations (e.g., the establishment or renewal of diplomatic, economic, and cultural ties).
  • Once referred to in Hague Regulations 36 to 41, which are annexed to Hague Convention II of 1899 and Hague Convention IV of 1907, as a mere suspension of hostilities akin to what is now known as a cease-fire, an armistice is today understood to terminate hostilities and divest belligerents of the right to renew military operations without addressing the issues underlying a conflict, consequently leaving room for a subsequent peace treaty.
  • A state of war may also terminate through implied mutual consent – an actual termination of hostilities on both sides that is not memorialized. This type of situation occurs when some additional event indicating all belligerents’ intent to cease hostilities, such as the establishment or restoration of diplomatic relations, occurs during a lull in fighting.
  • A state of debellatio entails one belligerent party’s complete and utter defeat, whereby (a) the party’s entire territory has been occupied; (b) the party’s armed forces are no longer in the field due to unconditional surrender or the like and no allied forces carry on fighting by proxy; and (c) the party’s government has ceased to exist and no government in exile offers opposition.
  • War can also end with a unilateral declaration by a belligerent party if the other belligerent party or parties are willing to cease hostilities or unable to do otherwise.

The cease-fires between Syria and Israel do not comport with any of the above scenarios, especially given how the issues driving the state of war between the two countries – Syria’s refusal to recognize Israel and Israel’s Golan Heights occupation – have not been resolved.

Moreover, (more…)

Syria War Crimes Accountability Act — Now Revised!

by Kevin Jon Heller

Last month, I blogged about the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” I praised the bill, but pointed out that Section 7(a) was drafted in such a way that it permitted the US to provide technical assistance to entities investigating international crimes committed by pro-Assad forces and “violent extremist groups,” but did not permit the US to support entities investigating international crimes committed by rebels.

I am delighted to report that Sen. Ben Cardin (D-MD), the Ranking Member of the U.S. Senate Foreign Relations Committee (SFRC), successfully introduced an amendment to the bill at last Thursday’s SFRC’s business meeting that corrects the asymmetry in Section 7(a). The new version reads as follows (emphasis in original):

The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and all non-state armed groups fighting in the country, including violent extremist groups in Syria beginning in March 2011…

This is a welcome change, because — as I pointed out in my original post — there is no reason to treat crimes committed by rebels any differently than crimes committed by Assad’s forces or by ISIS.

Kudos to Sen. Cardin! Let’s hope the revised version of the bill passes the full Senate soon.

Thoughts on Scott Turow’s ICC Novel, TESTIMONY

by Kevin Jon Heller

I have just finished reading the novel, in which a burned-out former US Attorney joins the ICC to investigate the disappearance, and presumed murder, of 400 Roma in Bosnia. I have always been a huge Scott Turow fan; I’ve read every book he’s ever written, most more than once, and the best one — the classic PRESUMED INNOCENT — five or six times. And there are many good things in TESTIMONY, such as the investigative scenes in Bosnia. In general, the various twists in turns in the story are vintage Turow, with fingers being pointed in all directions and the ending coming as a suitably-foreshadowed surprise.

It is also worth noting that Turow’s decision to set the book at the ICC instead of the ICTY is actually quite clever. We are not in CROSSING LINES territory here. Bosnia is a member of the Court and the Roma massacre took place in 2004, so the ICC clearly has jurisdiction. More importantly, Turow is on firm ground when he explains that the ICTY considered the case but ultimately decided it did not have jurisdiction over it. As ICL nerds know, the ICTY Statute requires crimes against humanity to be connected to armed conflict — the nexus requirement first adopted by the IMT. The Roma massacre lacks the requisite nexus, because there was no armed conflict in Bosnia in 2004.

Unfortunately, that is the legal high point of the book. The rest is replete with errors about the ICC and international criminal law in general. Some of those errors are fundamental, while others are minor but frustrating for how easily they could have been avoided.

The initial error is a doozy: Turow has the Pre-Trial Chamber (PTC) authorise the investigation into the Roma massacre, despite the fact that Bosnia self-referred the situation to the ICC. The book even contains a mock decision pursuant to Art. 15, the proprio motu provision! That is, of course, completely wrong: because Bosnia self-referred, the PTC did not have to authorise the investigation. The OTP was free to investigate the massacre on its own. And that error, in turn, undermines the entire setup of the book, which opens with a scene in which the sole survivor of the Roma massacre testifies before the PTC. The hearing is not only “unprecedented,” as Turow says — it’s pointless, because the OTP could have simply interviewed the witness itself.

Many of the other errors concern the functioning of the ICC. Here they are, in order they appear in the book. Sorry for the lack of page numbers — I was reading on my iPad with the text resized:

[1] It is not at all surprising to find a US prosecutor at the ICC, despite what Turow says. There have always been Americans working at the Court, including some very senior prosecutors like Christine Chung. (As an aside, Turow never bothers to explain why the ICC was willing to hire Bill Ten Boom to investigate the Roma massacre. All he says is that the US wanted an American prosecutor on the case, because the US Army might have been involved — a fact that would obviously have worked against hiring an American.)

[2] An ICC judge would never ask a prosecutor for permission to question a witness. Questioning by the judges is routine and expected.

[3] Dick Cheney did not support unsigning the Rome Statute because he was afraid of being prosecuted for waterboarding. The unsigning took place in May 2002 — before the US had waterboarded anyone. 

[4] The Cambodia and Sierra Leone tribunals are not located in the Hague.

[5] It’s the Jurisdiction, Complementarity, and Cooperation Division, not the “Complementarity Section.”

[6] The principle of complementarity doesn’t require the Court to wait 30 days for a state to act before pursuing an investigation.

[7] The ICC’s judges select the President of the Court, not the Court’s member states.

[8] Not all NATO states have joined the ICC. (Turkey has not.)

[9] The ICC could not sue the US at the ICJ to force it to disclose records. The ICC is not a state and the US does not accept the ICJ’s compulsory jurisdiction.

[10] There is no legal reason why the ICC could not use documents the US produced in (ostensible) violation of the American Service-Members Protection Act (ASPA).

[11] Neither the President of the Court nor the Registrar has any say in how the OTP allocates funds to investigations. (Turow consistently has both involved in the OTP’s decision to exhume the cave in which the Roma massacre supposedly took place.) That’s a serious mistake.

[12] Nothing in the ASPA makes it illegal for a member of the Court to investigate in the US. (Another claim Turow makes again and again.)

[13] The forcible transfer and massacre of the Roma are not war crimes, because there is no armed conflict. If they were committed during an armed conflict, the ICTY would have — and should have — prosecuted those acts.

I’m surprised that the New York Times described TESTIMONY as “well-researched,” because unfortunately it’s not. Or perhaps it is more accurate to say that Turow did his research but didn’t learn from it. According to the Author’s Note, Turow spoke to multiple officials at the ICC — including Judge Tarfusser, Fatou Bensouda, and the Registrar, Herman von Hebel — as well as to ICC experts like my friend Alex Whiting. I’m pretty sure all of those individuals know that the PTC doesn’t have to approve an investigation pursuant to a state referral.

Finally, a note about verisimilitude. It’s easy to dismiss errors like these as irrelevant in a work of fiction. As someone who spent a few years writing television in Hollywood, I have a degree of sympathy for that position. I think it’s fine to fudge the truth when it’s dramaturgically necessary to do so. But there is no excuse for fundamental mistakes like the PTC authorisation — especially when those mistakes can be so easily solved. All Turow had to do was delete the sentence that says Bosnia referred the situation to the ICC. Moreover, there is no point in making simple mistakes that are in no way necessary for the story; that’s just sloppy writing.

Let’s face it: many Americans will learn about the Court for the first time from this book. And they will come away with some basic misunderstandings about how the Court operates.

The Venezuela Crisis at the Organization of American States: Between Withdrawal and Suspension

by Alonso Illueca

[Alonso Illueca is a lawyer and adjunct Professor of law at Universidad Catolica Santa Maria La Antigua and Universidad del Istmo Panama.]

On May 31, 2017, the Meeting of Consultation of Ministers of Foreign Affairs (MCMFA) of the Organization of American States (OAS) will take place to consider the situation in Venezuela. This meeting was convened by the Permanent Council’s (PC) through resolution 1079/17 and based on the OAS Charter, articles 61 and 62 (see here). For several months, Venezuela has been under political turmoil. This state of affairs threatens the country’s democratic order and institutions. Moreover, Venezuela’s ongoing bid for withdrawal from the OAS is detrimental to Inter-American multilateralism. An effective Venezuelan withdrawal would set a precedent for future cases and weaken the OAS position vis-à-vis other regional organizations (CELAC). The current situation and the upcoming MCMFA provides an opportunity to consider the tools that international law provides to the OAS and it’s member States for preserving the organization’s membership. This article offers a perspective on some of the available options to the OAS for maintaining its status as the foremost regional agency of the American Hemisphere.

Venezuela’s withdrawal from the OAS

As a response to the PC resolution 1079/17 and the upcoming MCMFA, the Venezuelan Foreign Minister announced that the country would present a “letter of resignation” (in Spanish only) to the OAS. This letter, dated 27 April 2017, claims that the OAS is acting as an instrument for United States’ interventionism and presents to the Secretary General of the OAS (OASSG) the official notification of Venezuela’s definitive withdrawal from the organization. It is important to note that Venezuela stressed its willingness to comply with the “denunciation” procedure established in the OAS Charter.

Article 143 of the OAS Charter establishes that a withdrawing party must provide a written notification of its intentions to the OASSG, and after two years of such notification the withdrawal becomes effective. Additionally, it states that after this period the State concerned “shall cease to belong to the Organization after it has fulfilled the obligations arising from the present Charter”. With the aforementioned letter, Venezuela has only complied with one of these requirements. All things considered, Venezuela would cease to be an OAS Member State on 27 April 2019, as long as it fulfills its obligations under the OAS Charter.

The Venezuelan crisis and the Inter-American Democratic Charter

From a practical perspective, the Venezuelan government has interrupted the country’s democratic order twice, at least, since the start of crisis. First, by failing to convene a revocation referendum as established in the Venezuelan Constitution (in Spanish only). Second, by suspending the powers of the National Assembly through the Government controlled Supreme Court (see PC Res. 1078/17). This “suspension of powers” was later revoked.

With regard to the interruption of the democratic order, it is necessary to consider the paramount importance given to democracy in the OAS’ structure. The preamble of the OAS Charter considers democracy as an indispensable condition for the stability, peace and development of the region. It also lists among its essential purposes “to promote and consolidate representative democracy, with due respect for the principle of non-intervention.” Moreover, it mentions among its principles the effective exercise of representative democracy.

The OAS Charter provides for the suspension of member States whose democratically elected governments have been overthrown by force. In 2001, the Third Summit of the Americas expanded this provision by adopting the Declaration of Quebec City, containing the “democracy clause,” which establishes that “any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state’s government in the Summits of the Americas process.” On September 11 of the same year, the Inter-American Democratic Charter (IADC) was adopted. Article 19 of the IADC further expands the democracy clause to all the organs and bodies of the OAS, including the General Assembly (GA), the MCMFA, specialized conferences, commissions, and working groups. Further, article 20 establishes that prior to suspending a member State, the PC may undertake diplomatic initiatives to restore democracy.

In its more than 15 years of history, the IADC has been invoked in situations involving Venezuela (2002), Nicaragua (2004, 2005), Ecuador (2005, 2010), Bolivia (2005, 2008), and Honduras (2009). Only once a State has been suspended through the IADC. In 2009, Honduras right to participate in the organization was suspended in a special meeting of GA, after OASSG’s diplomatic had initiatives failed (AG/Res. 2 (XXXVII-E/09)). It is important to note that, while suspended, Honduras continued to be a Member of the Organization, obliged to fulfill its obligations.

The OAS’ dilemma: What to do next? Is it too late?

In 2016, the OASSG invoked the IADC (art. 20) with regard to the situation in Venezuela (here). In a recent NY Times article, he called for free and fair elections in Venezuela as a mechanism for avoiding their suspension from the OAS by way of the IADC. The OASSG concluded that suspension is the last resource in the regulatory framework of the IADC. In the same vein, the PC, when enacting resolution 1078/17, decided only to undertake diplomatic initiatives under the IADC, by inter alia considering convening the MCMFA. As mentioned above, the upcoming MCMFA was called upon by the PC (resolution 1079/17) and seems to be part of the diplomatic initiatives considered by resolution 1078/17 undertaken prior to adopting the last resort measure (suspension).

In this sense, it seems that the OAS’ diplomatic initiatives and even the “suspension” option came a little too late, as Venezuela has already initiated its withdrawal process from the organization. Had the GA convened in special session and suspended Venezuela’s participation in the OAS, prior to the issuance of Venezuela’s withdrawal letter of 27 April 2017, any subsequent denunciation attempt would had been ineffective.

Nevertheless, the withdrawal clause of the OAS Charter may prove useful in constraining Venezuela from exiting the organization. When a State decides to withdraw from a treaty, it needs to comply with the procedure agreed upon or obtain the consent of all the States parties (see, 1969 Vienna Convention on the Law of Treaties (VCLT) art. 54). In the case at hand, the OAS Charter requires the State concerned to notify its intentions to the SG, wait a mandatory period of 2 years, and fulfill its obligations arising from the Charter. The latter requirement could be interpreted narrowly to include financial obligations only (Venezuela has approximately an 8 million dollar debt with the OAS), which is the generally held view, or be expanded to include the principles and purposes included in Charter dealing with democracy.

The second option could potentially add some extra burden to Venezuela’s right to withdraw. If this option is analyzed in conjunction with the paramount importance given to the IADC in each of the documents issued by the PC or the OASSG, it could be argued that among the obligations for Venezuela arising from the Charter are the ones supporting representative democracy. Nonetheless, considering that this is the first time that a State withdraws from the OAS, there are no factual precedents on which to draw upon. Consequently, when considering this question, resort to the VCLT’ general rule and supplementary means of interpretation (art. 31-32) would be necessary. In any event, the OAS Secretary of Legal Affairs stressed that the main obligation of Venezuela would be to pay the debts it owes to the organization.  He also articulated that Venezuela would remain a full member of the organization with all its rights and obligations, at least, for the next two years.

Besides its many shortcomings, the IADC is yet to be considered a legally binding instrument (see Perina). It provides for collective action in cases of “unconstitutional alteration of the constitutional regime” through diplomatic initiatives and suspension. In the case of Venezuela, collective action is currently limited to diplomatic initiatives. However, it remains difficult to understand which would be the practical effect of suspension if Venezuela has already decided to withdraw from the organization. In this sense, would the suspension of the membership suspend the 2-year denunciation notice period? A case with some similarities, if any, is the one North Korea and its withdrawal from the Non-Proliferation Treaty (NPT). In that case, the withdrawal was unilaterally suspended by North Korea for 10 years. For many reasons, North Korea’s status in the NPT remains contested until today. However, it differs from the case of Venezuela because the decision to suspend the withdrawal was taken by the withdrawing State, not implicitly ordered by the organization in question.

Conclusion

Some analysts suggest that the OAS’ ongoing role in the Venezuelan crisis has compromised its natural role as a prospective mediator. In shaping its own practice the OAS and its Member States must consider the principles and purposes of the organization and the applicable rules of international law. Nevertheless, the OAS and its legal experts may have a unique opportunity for shaping regional practice with regard to the law of treaties and the regulatory framework of the IADC.

Taiwan’s Constitutional Court Rules in Favor of Same-Sex Marriage, and Cites U.S. Supreme Court (But Not For Law)

by Julian Ku

Grand Justices of the Constitutional Court, Judiciary Yuan, Republic of China – Taiwan

In a first for Asia, Taiwan’s Constitutional Court ruled today (with two dissents) that Taiwanese law limiting marriage to a man and a woman violated the Republic of China’s constitutional guarantee of “equality before the law.” (Taiwan is home to the exiled Republic of China government, and its constitution is an amended version of one adopted on Mainland China back in 1946).
I don’t claim to be an expert on the Taiwan-ROC Constitution.*  I also haven’t read the decision very carefully, and do not purport to offer any deep analysis of the decision here.  But to build off Anthea’s great post from Monday, I will note that the decision (in Chinese here)  cites the U.S. Supreme Court’s decision in Obergefell v. Hodges.**  But it doesn’t cite Obergefell’s legal analysis on the relationship between same-sex marriage and equality, which actually is quite on point.  Rather, the Taiwan court cites Obergefell in footnote 1 as one of several sources for the proposition that sexual orientation is an immutable characteristic. (In a somewhat ironic note, the decision also cite findings of the World Health Organization, whose governing body just recently excluded Taiwan from participating as an observer).

I think there are many good reasons to cite, or not cite, foreign court decisions when interpreting a domestic constitution. I can see the Taiwan-ROC Constitutional Court, which is still a relatively new institution, wanting to cite foreign authority to bolster the legitimacy of its decision.  But I can also see that the Court would want to make this decision as domestic as possible to ward off the very substantial domestic criticisms that are already being made of the results of this decision.  The Taiwan-ROC Court made a reasonable choice to cite the U.S. Supreme Court in a limited and non-legal way.  I don’t fault it (or the U.S. Supreme Court) for avoiding foreign and international legal authority.  No doubt there was a jurisprudential influence from the U.S. and other jurisdictions in this decision, but I wonder if it was in any way decisive.

There are, of course, international relations implications from this decision.  Taiwan, under the current sort-of-anti-China governing party, is carving an international image for itself as a socially progressive haven in a relatively socially conservative Asia.  This can’t hurt Taiwan as it continues to seek ways to maintain its separate identity from China in the eyes of U.S. and European elites. The mainland has a similar “equality before the law” provision in Article 33 of its Constitution as the one that is the main basis for the Taiwan court decision, but I wouldn’t count on any action on that front in the near future.

*But I did have noodles in Taipei with a member of the Taiwan Constitutional Court not two weeks ago and he gave me no clues about this pending decision.

**My original post actually got this wrong, claiming there was no citation at all. Sorry for the confusion. But my larger point stands.

Pledging American Exceptionalism: US Supreme Court Justice Gorsuch on International Law

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

American exceptionalism is nothing new. Nor are debates about whether it is appropriate for US courts to look to foreign or international law, particularly when interpreting the US Constitution. Yet now-Justice Gorsuch’s recent testimony on the issue during his confirmation hearing still took my breath away. You can hear the question posed and his answer here (the exchange is also transcribed below). I think that every international lawyer should watch this clip. It’s exceptional …

Question by Sasse: As a sitting Supreme Court justice tasked with upholding the US Constitution, is it ever appropriate to cite international law and, if so, why?

Answer by Gorsuch: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt a foreign law. That’s an appropriate time to look at any choice of law provision by any party in any contract. Treaties sometimes require you to look at international law by their terms.

But if we’re talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us. For all the imperfections of our rule of law, it is still the shining example in the world. That’s not to say we should sweep our problems under the rug or pretend that we’ve solved all of the problems in our culture, in our society, in our civic discourse. But it is to say that we have our history and our Constitution and its by “we the people.”

And so, as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution — as a general matter.

So what do I find remarkable about this interaction?

First, the conflation of international law and foreign law is disconcerting. When asked about whether it is appropriate to cite to international law, Gorsuch immediately turns to choice of law provisions in contracts. But that is typically a question of foreign law, not international law. Certainly, both are non-American law. Yet the two of them raise distinct questions, particularly given that the United States contributes to the formation of international law, is bound by international law, and has hooks in its Constitution for looking to international law. As for when Gorsuch says that treaties sometimes require you to look at international law … I feel like telling him that, actually, treaties are international law. I have been critical elsewhere of how the US Supreme Court can interpret a treaty without even referencing the Vienna Convention on the Law of Treaties.

Second, the statement “I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us” is particularly striking. On a descriptive level, there is something to what Gorsuch says. Academics and courts in many states regularly look to US case law, but the same is much less true in reverse. I find clear evidence of this asymmetry in my forthcoming book Is International Law International? (OUP, 2017) where international textbooks from around the world look to US case law while US international law textbooks look to … US case law.

But on a normative level, I find this statement troubling. Why look at the experience of other states? For me the answer is simple: because you might learn something. You don’t have to be bound by what you find, but it might be instructive given that other states have often faced similar issues and the United States does not have a monopoly on good ideas. I fully accept that judges in a state can privilege that state’s own history and tradition when interpreting the law and that this might be particularly appropriate when interpreting that state’s constitution. But I don’t think that this requires them to ignore the histories and traditions of everyone else.

The double standard implicit in what he is saying is also grating. Instead of taking the position that “all states should look to their own history and tradition,” Gorsuch instead endorses the idea that other states not only do look to the United States (descriptive claim), but that they should look to the United States (normative claim), even though the US courts should not reciprocate. What is good for the goose is certainly not good for the gander.

Third, the next sentence is the kicker for me: “For all the imperfections of our rule of law, it is still the shining example in the world.” I find this exceptionalist rhetoric hard to stomach. It is also deeply ironic given that the whole world currently is looking at the United States and the Trump administration, but no one would say that this is because the United States represents the “shining example” of the “rule of law” in the world. In fact, the United States comes in 18th out of 113 countries in the World Justice Project’s rule of law rankings, and the Economist recently downgraded the United States to being a flawed democracy, partly because of a loss of faith in democracy in the United States, particularly by the younger generation.

Of course, I am not the intended audience for Gorsuch’s remarks. He is clearly playing to a domestic, political audience, not a foreign, internationalist one. To my ears, Gorsuch sounds like he is pledging a fraternity, but the institution to which he is pledging is American exceptionalism. Although this topic is contentious in the United States, the idea that it might be appropriate or useful to cite to international or foreign law is uncontroversial in many other states. I can’t imagine many judges in other common law jurisdictions, like Australia, Canada or the United Kingdom, feeling the need to make this sort of pledge. Nor am I am aware of judges in civil law states, like France and Germany, making similar such pledges.

Even though Gorsuch is not addressing his comments to people like me, the nature of the internet means that I form part of his audience nonetheless. And I suspect that many foreign internationalists would have a similar reaction to me. This failure to value the practice of others and to engage in a dialogue is one of the explanations that David Law and Mila Versteeg give about their empirical finding of the declining influence of the United States in comparative constitutional law (another is that constitutions around the world are increasingly departing from, rather than following, the US model). This finding also contrasts with the rising influence of the courts of some other states that regularly engage in this sort of discourse, like Canada, Germany, India, South Africa and the United Kingdom.

Whatever your views on this clip, I think that this exchange would make a great classroom teaching tool because it succinctly sets out a particular perspective and provides a useful starting point for debate. I would be interested if anyone has a good counterpoint clip that pithily sets out the opposite perspective as the two would be great to pair. In the end, part of what we need to take away from this sort of exchange is just how different people’s starting points of analysis can be when it comes to this question and how these differences may vary considerably across states.

American Law Institute Approves First Portions of Restatement on Foreign Relations Law (Fourth)

by Julian Ku

Big news (for international law nerds)! The full membership of the American Law Institute has approved the first three sections of the new Restatement of U.S. Foreign Relations Law (Fourth).  This is the first official change to the venerable Restatement (Third) that was approved by the ALI back in 1987.  Summaries of the changes to the newly approved sections on Jurisdiction, Treaties, and Sovereign Immunity are linked here.

The Restatements are supposed to “restate” the law in the United States.  But it is influential in shaping the law, especially in this area, since U.S. courts frequently cite the Restatement on questions of international law.  It is an important statement of where U.S. courts are, and will likely go, on questions of foreign relations and international law in the near future. As such, the Restatement should be interesting to non-US scholars as well.

The Restatement (Third) has been subjected to some pretty tough academic criticism over the years, but (from what I can recall), these three topics have not  been particularly controversial.  I am a member of the ALI and I have attended some of the meetings during this drafting process, but I haven’t been paying as much attention as I should have.

I will say that one general trend I have noticed in the new sections has been to cut back on statements in the comments of Restatement (Third) that may have gone beyond the caselaw at the time or no longer reflect current caselaw.  For instance, the new Restatement eliminates a comment in Restatement (Third) that suggested there are no subject-matter limitations on the treaty power (which itself departed from the Restatement (Second).  The Fourth Restatement says nothing about this point, which is probably the smart thing given there has been really no caselaw on this one way or the other from the Supreme Court or lower courts.

Having said that, I will note that Georgetown law professor Carlos Vazquez has already published a criticism of the newly approved sections on the self-execution doctrine.  I won’t go into his criticisms here, but they do suggest the new Restatement is unlikely to completely settle the continuing debate over the nature of this tricky doctrine.

There is a lot here to digest. At this point, I will simply salute the scholars who have made this project happen, all of whom I think we can count as prior contributors to and friends of the blog: Sarah Cleveland, Paul Stephan, Bill Dodge, Anthea Roberts, David Stewart, Ingrid Wuerth, Curt Bradley, and Ed Swaine. Of course, Duncan was also involved and I am sure other members of the OJ community.  There is more to do, of course, but what has been completed so far is a great achievement and one that will last for at least another thirty years, if we are lucky.

Bemba, et al. Sentencing Decision: A Victory with a Bitter Taste

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor.]

On March 22, 2017, Trial Chamber VII of the International Criminal Court handed down a sentencing decision (.pdf) in the case of The Prosecutor v. Bemba, et al. – a five-accused case of first impression before the Court of the offences against the administration of justice under article 70 of the Rome Statute. On October 19, 2016, the judges found all five accused guilty (.pdf) to a different extent of causing fourteen Defense witnesses to falsely testify in the ICC war crimes trial against a former DRC vice-president Jean-Pierre Bemba Gombo (the “Main Case”).

Judges found that the co-conspirators used fake testimony in order to have Bemba acquitted in the Main Case.. They consciously retained as witnesses people who had no knowledge of the facts relevant to Bemba’s trial and then scripted their evidence, including after they had been sworn in.

Narcisse Arido, Defense intermediary in the Main Case, who was convicted as perpetrator of corruptly influencing four Defense witnesses, received an 11-month prison sentence, fully subsumed in the time spent in pre-trial detention.

Fidèle Babala, Bemba’s long-time political companion and confidant, who was convicted of aiding and abetting the corrupt influence on two Defense witnesses, received a 6-months prison sentence. This sentence was fully-served by the time spent in pre-trial detention.

Jean-Jacques Mangenda, the Main Case case-manager was sentenced to 2 years of imprisonment for the corrupt influencing of fourteen Defense witnesses and presenting their false evidence to the Court, as well as for aiding the false testimony of two Defense witnesses and abetting the false testimony of nine Defense witnesses. The Chamber ordered the time spent in pre-trial detention deducted from his prison term and the enforcement of the remaining term postponed for a 3-year probationary period, as long as Mangenda refrains from committing another offence bearing a prison sentence.

Aimé Kilolo, Bemba’s lead counsel in the Main Case, was sentenced to 2 years and 6 months of imprisonment for the corrupt influencing of fourteen Defense witnesses and presenting their false evidence to the Court, as well as for inducing their false testimony. The Chamber ordered the time spent in pre-trial detention deducted from his prison term and the enforcement of the remaining term postponed for a 3-year probationary period, as long as Kilolo pays a EUR 30,000 fine within 3 months of the decision and refrains from committing another offence bearing a prison sentence.

Finally, Jean-Pierre Bemba, who was convicted as co-perpetrator of corruptly influencing 14 Defense witnesses and presenting their false evidence, and as solicitor of their falsely testifying was sentenced to a term of confinement of 12 months, to be served consecutively to the 18-years sentence imposed (.pdf)  in the Main Case, and to a EUR 300,000 fine, destined eventually to the Trust Fund for Victims.

These sentences are unprecedented in contempt cases before international criminal tribunals. At the same time, a scheme of this scale to defraud an international court – according to the trial judgment, the Defense in the Main Case knowingly put nearly half of their witnesses (fourteen out of thirty four) on the stand to lie – has never before been attempted or, at least, uncovered.

Notwithstanding, the sentencing decision does not reflect the seriousness of the situation. Although it is clearly repugnant to the basic standards of the legal profession to permit those convicted for having deliberately and persistently deceived the Court to remain a member of the profession and to reappear before the judicial institution, the two convicted lawyers – Kilolo and Mangenda – received no disciplinary sanction.

After having found Kilolo guilty of conduct that is ostensibly incompatible with the letter and the spirit of the Rome Statute, the Chamber took no action to prevent him from officiating as counsel before the institution towards which he showed disregard. Should the judges have doubted their power to order his striking off the list of counsel, they could have at least seized the Disciplinary Board with a complaint for misconduct, as per article 34 of the Code of Professional Conduct for Counsel (.pdf).

Even the language denouncing the conduct unworthy of an officer of the court is notably absent from the decision. Instead, in determining the appropriate sentence for Kilolo, the Chamber praised his efforts towards promoting legal profession in Belgium and DRC.

Kilolo and Mangenda are admitted to the Kinshasa Bar; as a member of the Brussels Bar, Kilolo can also practice law in Belgium. The ICC is part of these States’ legal system. At the very least, the Chamber could have ordered the judgment and sentencing decision notified to these bars for information to show that the Court is conscious that Kilolo’s and Mangenda’s conduct brings discredit upon the legal profession and defers to the bodies that this conduct discredits in the first place.

I think Alex Whiting is too harsh on the judges who, in his opinion, missed an opportunity to protect the Court’s authority when they imposed sentences that were disproportionately lenient to the extent and gravity of the scheme that they themselves readily acknowledge. The judges indisputably did miss this opportunity, but not (only) regarding the sentences. Their entire handling of the case from the very beginning is one big missed opportunity, starting with the decision to allow the Main Case and the Article 70 case proceed in parallel. Although the Main Case trial judgment did not rely on the fourteen at that time presumably false witnesses, there is no certainty that the co-conspirators machinery produced only fourteen. The Prosecution itself repeatedly underscored that its choice to charge only fourteen incidents was not necessarily coextensive with the real scope of the scheme. Justice for victims has a bitter taste…

The Bemba, et al. case had all the earmarks of a textbook contempt case. The perjurous witnesses repented; the accused’s conspiring was caught on tape. Moreover, the case involved a lot of absolutely fascinating and unsettled complex legal issues, such as defense counsel immunity, counsel-client privilege, to name only few of them. Yet, the case did not generate much interest among scholars and practitioners. This lack of interest may be in part due to the successive Chambers’ reluctance to issue audacious decisions – the only ones that catch attention.