Recent Posts

Am I Missing Something or Does the New Trade Promotion Authority Bill Violate the U.S. Constitution?

by Julian Ku

I am slammed with a couple of projects right now, but I can’t help throwing this question out to the legal blogosphere.  Does the new “Bipartisan Trade Priorities and Accountability Act” recently introduced by leading U.S. Senators violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

The BTPAA seems crucial as the U.S. enters the final stages of its negotiations over the “Trans Pacific Partnership” (TPP) with Asia and the Transatlantic Trade and Investment Partnership (TTIP) with Europe because it allows the President to submit his negotiated trade agreements for a “fast-track” up and down vote that Congress cannot amend.

Because of congressional opposition, the new trade promotion bill has a provision that looks a lot like a “legislative veto” that allows a resolution passed by a majority vote by one House of Congress to withdraw the “fast-track” authority.   Here seems to be the key language.

(A) IN GENERAL.—The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 3(b) if during the 60-day period beginning on the date that one House of Congress agrees to a procedural disapproval resolution for lack of notice or consultations with respect to such trade agreement or agreements, the other House separately agrees to a procedural disapproval resolution with respect to such trade agreement or agreements.

(B) PROCEDURAL DISAPPROVAL RESOLUTION.—(i) For purposes of this paragraph, the term ‘‘procedural disapproval resolution’’ means a resolution of either House of Congress, the sole matter after the resolving clause of which is as follows: ‘‘That the President has failed or refused to notify or consult in accordance with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 on negotiations with respect to ____ and, therefore, the trade authorities procedures under that Act shall not apply to any implementing bill submitted with respect to such trade agreement or agreements.’’, with the blank space being filled with a description of the trade agreement or agreements with respect to which the President is considered to have failed or refused to notify or consult.

Am I missing something? Even if (as the provision seems to say), a resolution of both houses is needed to withdraw fast track authority, the joint resolution doesn’t satisfy the presentment (to the President) requirement in the Constitution that the Supreme Court has repeatedly upheld in cases like INS v. Chadha and Clinton v. City of New York.  Unless the President has an opportunity to veto the “procedural disapproval resolution,” I doubt this law is constitutional.  I think the only saving grace is that the resolutions  withdrawing fast track can only be invoked if the President fails to notify or consult rather than on the merits.  But I am still very doubtful this difference matters. I haven’t carefully examined all of the legislation’s provisions, but this does strike me as an issue worth discussing.  Comments welcome!

Guest Post: Maldonado v. Holder and the US’ “Understanding” of Its Convention Against Torture Obligations

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

The 9th Circuit issued a revised Opinion on March 27th in Maldonado v. Holder, a case about non-refoulement (the obligation not to expel, return or extradite someone to a country where they would be in danger of being tortured) and deferral of removal under the UN Convention Against Torture. The En Banc panel said that the lower court erred in placing the burden on the petitioner to show that he could not relocate within Mexico in order to mitigate the risk that he would be subjected to torture. The Court also overruled several precedents that placed excessive burdens on petitioners seeking protection from torture abroad, saying they were incompatible with federal regulations designed to implement the non-refoulement obligation. This decision is a big deal in the realm of immigration law. Petitioner’s lawyer was quoted in the San Francisco Chronicle: “(The ruling) puts us in compliance with our international obligations and protects tortured people.”

Well, not exactly, counselor. It depends on what you mean by “obligations.”

The result is commendable, as far as it goes, but a US “understanding” upon ratification of the Convention Against Torture considers the non-refoulement obligation to be triggered only if torture is more likely than not. In other words, if the petitioner can only show a 49% chance that he will be tortured, he loses. The Convention is not nearly so demanding. It prohibits refoulement “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” (Emphasis added). The Convention certainly doesn’t require proof that torture, or even the danger of torture, is more likely than not.

The US “understanding” is actually a “reservation” that significantly varies from the text of the Convention. One might say it tends to defeat the object and purpose of the treaty, and thus, is unacceptable. If so, the US is still some distance from compliance with its international obligation to protect people from torture.

Book Symposium: The Rise of Interpretive Communities in Treaty Interpretation

by Michael Waibel

[Michael Waibel is a University Lecturer in Law at the University of Cambridge and Deputy Director of the Lauterpacht Centre for International Law.]

The rise of distinct interpretive communities goes hand in hand with the much debated topic of fragmentation in international law. Even though the VCLT’s role in treaty interpretation has been studied extensively, how interpretive communities affect treaty interpretation has received less attention. Who the treaty interpreters are and how they approach the task of interpretation likely matters for interpretive outcomes.

Compared to national law, interpreters of international law are much more diverse. They come from different cultural and educational backgrounds and have varied professional experiences. They include judges on international and national courts, government legal advisers, lawyers in private practice, scholars and activists. They are often part of several, overlapping interpretive communities who speak the same language and share the same background assumptions – and this membership may shape how they approach the task of treaty interpretation.

Consider national judges. They may be particularly prone to interpreting treaties through the lens of their own legal system and in light of their particular specialization such as tax or criminal law. As a rule, national judges form part of diverse national interpretative communities, shaped largely by their own legal culture (including approaches to interpretation), rather than part of a global and interconnected community of international lawyers who speak (roughly) the same language. Going forward, diversity in treaty interpretation by national judges could be a major source of interpretive fragmentation, depending on what role interpretive communities along national lines play.

But all lawyers are, to a considerable degree, a product of their own culture, training and professional experience. As Frederick Dunn remarked in the 1930s, the international lawyer ‘carries with him the whole collection of habitual ways of acting, of fixed ideas and value judgments of his own community, which he is prone to expand into ideas of universal validity’: The Diplomatic Protection of Americans in Mexico (1933) at 105–107. James Crawford similarly observed that international lawyers are ‘commonly municipal lawyers first, and bring to the international sphere a collection of presumptions and perceptions as part of our training’: Chance, Order, Change: The Course of International Law (2013) at para 185.

How does one become a member of these interpretive communities? It varies from area to area, and from one state to the next. As a rule, the harder it is to join an interpretive community, the more influential the interpretation of that group is. For example, while it typically takes several decades of experience to join the interpretive community of international judges (particularly the ICJ), it is easier to join the interpretive community of human rights activists.

Unlike interpretation in literature, how much weight an interpretive community and its members carry is not just a matter of prestige, but has consequences. While more accessible interpretive communities mostly lack any binding authority, the interpretive community of, for example, ICJ judges or WTO Appellate Body members has the power to issue binding decisions. Others, such as government legal advisers have no power to issue such decisions, but are extremely influential in treaty interpretation because the bulk of interpretation in international law remains auto-interpretation – by the states concerned of their own interpretation.

Besides the diversity of the actors, the growing trend towards specialization in international law (mirroring a development in national law a century ago), accompanied by the “tunnel vision” symptom, fostered the emergence of distinct interpretive communities. Such tunnel vision, focusing on the unique goals of each specialization, can lead to the chopping of international law into discrete “blocks”. Consequently, generalist international lawyer idealized in Schachter’s famous “Invisible College of International Lawyers” are an endangered species.

Today, there are interpretive communities of human rights lawyers, investment lawyers and environmental lawyers for example. One manifestation of this centrifugal trend are more specialized professional societies, such as the Society of International Economic Law, which complement more generalist societies, such as the American Society of International Law. Such bodies have played a crucial role in fostering a sense of a broad, unified interpretive community of international lawyers in the 20th century.

An important implication of this tunnel vision is that specialist interpretive communities tend to regard their own area of expertise as supreme and pay little, or no, attention to other unrelated areas of international law: Bianchi, “Gazing at the Crystal Ball (again): State Immunity and Jus Cogens Beyond Germany v Italy” (2013), 4(3) JIDS 457. Interpretive communities pursue various strategies in order to enhance their prestige and influence: 1) some of the influential ones screen new members before admission, as mentioned above; 2) they cooperate with other actors to spread their views and increase support for their interpretation (e.g. with governments and practicing lawyers); and 3) they advance competing normative visions of international law while at the same time employing the VCLT’s widely accepted, open-ended principles of interpretation.

The rise of a larger number of distinct interpretive communities resulted in international law being “sliced up in institutional projects that cater for special audiences with special interests and special ethos”: Koskenniemi, “The Politics of International Law – 20 Years On” (2009) 20 EJIL 1, at 9. As Bianchi observed, interpretive communities can be seen both as a deadly threat to the international legal order, but also as a sign of the sophistication and expansion of the realm of international law: “Looking Ahead: International Law’s Main Challenges” in D Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) at 404.

Schachter’s “invisible college” of international lawyers seems to have largely disappeared and has been replaced by a patchwork quilt of specialized international lawyers. Diverse interpretive communities have come to play an increasingly important role in treaty interpretation. This development raises concerns about the unity of international law, not just in relation to its interpretive methods, but also in relation the system as a whole. The challenge going forward is how to achieve a reasonable balance between specialization and fragmentation.

Book Symposium: Is there Existential Interpretation in International Law?

by Duncan Hollis

I want to start off our conversation about the larger project Bianchi, Peat and Windsor have undertaken with their new book before introducing my own contribution to it.  For years, the concept of interpretation has had a fairly narrow focus within the international legal landscape.  It has almost uniformly been associated with a discrete set of objects — treaties. From Grotius to Oppenheim, let alone McNair to Gardiner, when international lawyers have thought about interpretation, there has been a strong push to do so almost entirely with respect to treaty instruments.  Moreover, for several decades now the vehicle for interpretation has been widely accepted in the rules of the 1969 Vienna Convention on the Law of Treaties.  Although there was a time when the issue of how to interpret treaties garnered a really diverse range of views, modern discourse has largely devolved into claiming that the VCLT approach gives priority to (or at least endorses inclusion of) different methods of interpretation (e.g., intentional, textual, teleological). Now, to be clear, these are tremendously important issues given the role of treaties in international law today; scholarship on these topics has been, and remains, an important part of international legal discourse.  Nevertheless, what I like about the Bianchi, Peat and Windsor book (putting aside my own contribution) is the editors’ willingness to deal with the traditional games of treaty interpretation while also expanding the discourse to frame interpretation as a much larger project within the international legal order.  It is an important move, and one I hope to see continued in future scholarship as international lawyers begin to recognize all the ways interpretation operates within every nook and cranny of the field.

As for my own chapter (which is still up on SSRN, although you should really buy the book), its inspiration lay in one other aspect of the conventional approach to interpretation — defining interpretation simply as a process of giving meaning to treaty texts.  I’ve always thought that this approach under-claimed the functions interpretation can serve.  Certainly, interpretation has an expository function where its processes help interpreters ascertain what meaning to assign some treaty provision or other aspect of international law.  But, interpretation can have other functions as well.  For example, although still controversial in some circles, there is the idea that interpretation has an inventive or creative function where instead of simply “finding” meaning, interpreters craft one for the circumstances presented.  Alternatively, interpretation may serve a relational role in delimiting not what specific things mean, but how they relate to one another (i.e. whether one treaty provision supersedes another, whether some international humanitarian law rule takes priority over a human right guarantee, etc.).

My contribution to this functional analysis is to highlight the existential potential of interpretation.  My chapter explores how, in ascertaining meaning, interpretation operates to confirm—or even establish—the existence of the subject interpreted within (or outside) the corpus of international law.  I argue that all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects.  Interpreters can foreground or background existential interpretations depending on whether the existence of the subject-matter is accepted or disputed. Moreover, I find existential interpretations are not limited to the treaty-context.  Rather, they are visible at all levels of international legal discourse, including which particular (i) authorities, (ii) evidence, (iii) rules, or (iv) sources exist for purposes of international law.

Some of these existential interpretations are quite prominent and should actually be familiar to most international lawyers even if not previously couched in such terms.  Does the U.N. Human Rights Committee have authority to sever reservations as inconsistent with the object and purpose of the ICCPR?  For purposes of identifying customary international law, is evidence of “State practice” only comprised of what States “do” or can it also count what States “say”?   Is there an “unwilling or unable” test in the jus ad bellum in response to non-State actor attacks?  Is R2P now a part of international law?  Is the new Iran Deal a treaty or not? Are decisions of international organizations a separate source of international law?   These are all examples of existential interpretative inquiries.

My chapter seeks to illuminate the existential function of interpretation and illustrate such interpretations in all the various aspects of the international legal system.  But my paper is not simply an exercise in interpretative taxonomy — identifying different frames for interpretative questions.  Rather, I seek to illuminate the consequences that the presence or absence of an existential interpretation may have in terms of international legal (a) discourse, (b) doctrine, and (c) theories of international law.  For starters, existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

I conclude my paper by calling for further study of existential interpretation for practical and theoretical reasons.  As a practical matter, it would be useful to know more about when and how actors actually foreground existential interpretations.  Obviously, there may be cases where an interpreter does so in good faith, but I suspect existential interpretations might also be deployed instrumentally.  Consider the possibilities when a State (or other actor) objects to an interpreter X claiming that Rule Y means Z.  Of course, the State might simply disagree that Z is the correct meaning of Rule Y. But a State could expand the scope of the interpretative dispute by also questioning whether X has authority to interpret, the evidence on which Rule Y rests as well as the source of international law it is derived from. The objecting State may thus complicate the dispute by expanding its scope.  In doing so, moreover, the objecting State may change the nature of the dispute itself, shifting a discussion away from the initial question (e.g., protecting victims of a humanitarian crisis) to issues of authority or procedure (does international law contain a rule requiring such protection and who has authority to invoke its mantel).

As a theoretical matter, existential interpretations can serve as a new lens for mapping the unity and fragmentation of the international legal order itself. Instead of examining fragmentation along a single axis (eg norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes.  Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords.  In each area, the number and depth of existential debates offer a rough gauge for mapping unity versus fragmentation.  Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed.  Conversely, where there are existential disputes, they indicate a fragmentation of the legal system.

In sum, as much as I love treaties, I believe that there is significant value in thinking about interpretation as more than a process of giving treaty provisions meaning.  My introduction of the concept of existential interpretation is an effort to show just how broadly interpretative processes reach and structure the international legal order.  In doing so, I hope to illustrate — as the book itself does — the importance of thinking about interpretation as its own field within international law.

[An introductory post to the book symposium can be found here.]

Book Symposium: Interpretation in International Law–What’s In A Game?

by Daniel Peat and Matthew Windsor

[Daniel Peat and Matthew Windsor are PhD candidates at the University of Cambridge Faculty of Law, and members of Gonville and Caius College.]

International lawyers have long realised the importance of interpretation to their academic discipline and professional practice. Interpretation in international law has traditionally been understood as a process of assigning meaning to texts with the objective of establishing rights and obligations. This has led to an almost exclusive focus on the interpretive methodology encapsulated in the Vienna Convention on the Law of Treaties. Outside the auspices of the VCLT rules, interpretation in international law has rarely been regarded as a distinct (and broader) field of inquiry. As new insights on interpretation have abounded in other fields, international law and international lawyers have continually granted an imprimatur to rule-based formalism. Given that interpretation is a pervasive phenomenon in international law that is irreducible to analysis of the VCLT rules, a greater methodological awareness of interpretive theory and practice in international law is imperative.

We convened a conference on interpretation in international law at the Lauterpacht Centre and the Faculty of Law at the University of Cambridge in 2013. The aim was to provoke fresh insights on a foundational topic. The result is a recently published book with Oxford University Press, Interpretation in International Law. The book is co-edited by Andrea Bianchi, Professor of International Law at the Graduate Institute, Geneva. A symposium of papers dealing with discrete interpretive topics from the conference also featured in the Cambridge Journal of International and Comparative Law.

In his preface, James Crawford describes our book as ‘teeter[ing] intriguingly between interpretation in the way international lawyers normally think about it and interpretation as everything they think about’. International lawyers normally think about interpretation with reference to the rules in the VCLT. Indeed, the literature on treaty interpretation is voluminous. This work is invaluable: it provides states and other actors in the international arena with a guide to the conventionally accepted norms of interpretation in the community within which they operate. But this project does not tell the whole story. It does not interrogate the larger purpose of interpretation in the international legal system, whether and why the VCLT rules act as a constraint on interpretation in practice, whether actors’ interpretations differ according to their professional identities, or if strategy motivates interpretive choice. In their mantra-like recital of the VCLT as a formal methodology for the interpretation of international legal rules, international lawyers till a bounded field, largely insulated from interdisciplinary influence or insight. A greater awareness of broader interpretive debates helps shed light on both the underlying premises and shortcomings of the rule-based orthodoxy. In short, interpretation in international law is not an island.

Our introductory chapter to Interpretation in International Law, which is freely available here, surveys the ‘state of play’ of scholarship on interpretation in international law, before analysing alternative approaches to the ascertainment of meaning. Such approaches reveal that any interpretive inquiry rests upon contestable bases regarding meaning, language and the importance of societal context and norms. The view that the interpretive inquiry in international law is reducible to, and exhausted by, the VCLT rules is overly reductionist.

The book is structured around the metaphor of the game, which captures and illuminates the constituent elements of an act of interpretation. The object of the game of interpretation is to persuade the audience that one’s interpretation of the law is correct. There are players who are engaged in the game, namely functionally specialised interpretive communities who deploy international law as a professional vocabulary. The VCLT rules of play are known and complied with by the players, even though much is left to their strategies. There is also a meta-discourse about the game of interpretation – ‘playing the game of game-playing’ – which involves consideration of the nature of the game, its underlying stakes, and who gets to decide by what rules one should play.

The game metaphor is more than a rhetorical flourish. It offers a heuristic framework that highlights topics of crucial importance in order to foster innovative thinking on interpretation in international law. The argument is not that interpretation is a game, but that particular facets of the comparison are illuminating and capable of capturing both routine interpretive operations as well as those advances that transform the law. To say that interpretation in international law is akin to playing a game does not imply that the process is frivolous or that the parties involved in interpretation are not seriously engaged in it. Rather, in its attention to interpretation as a complex social practice, and in its focus on socio-historical contingency and the relationship between freedom and constraint, the game metaphor helps reinsert some vitality in a discipline that has too often become bogged down in formalist interpretive technique.

Interpretation in International Law breaks free from a myopic focus on the VCLT to reveal interpretation as a phenomenon that permeates all areas of international law as a discipline and professional practice. We hope to convince readers that the game metaphor crystallises a set of concerns that are too often neglected in a formalist rule-based paradigm. Topics canvassed in the book are deliberately eclectic, ranging from theories of rhetoric and argumentation to the sociology of precedent, from cognitive frames of interpretation to the politics of hermeneutics.

Over the next few days, several of the book’s contributors will introduce their chapters. Duncan Hollis examines the object of the game of interpretation in terms of its existential function. Michael Waibel analyses the players of the game by discussing the nature of interpretive and epistemic communities in international law. Julian Arato confronts the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Fuad Zarbiyev characterises the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. Philip Allott’s contribution to the symposium is emblematic of the aims of the book: to promote critical and open-minded reflection on interpretive practices and processes in international law.

We are grateful to our contributors for their participation, and to Opinio Juris for hosting this discussion. We hope that the insights contained in Interpretation in International Law, and this symposium, will stimulate further research on interpretation that does not shy away from methodological innovation and creativity.

The Advantage for Palestine of a Slow Preliminary Examination

by Kevin Jon Heller

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…

Weekly News Wrap: Monday, April 6, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  • An Indonesian court will rule on Monday on an appeal against President Joko Widodo’s refusal of clemency for two Australian drug convicts who are facing execution by firing squad.
  • North Korea fired four short-range missiles off its west coast on Friday in what South Korea called a bid to stoke tension during its annual joint military drills with the United States and has declared a no-sail zone for its ships off its east coast, South Korean media reported on Monday, suggesting more missile launches are possible before the U.S. defense chief visits Seoul this week.
  • A Chinese naval frigate has evacuated 225 foreign citizens from strife-torn Yemen, its foreign ministry said, marking the first time that China’s military has helped other countries evacuate their people during an international crisis.

Europe

Americas

Oceania

UN/World

Events and Announcements: April 5, 2015

by Jessica Dorsey

Calls for Papers

  • Turgut Ozal University School of Law, in cooperation with Association for Canadian Studies and IDI, invites scholars and policy-makers to submit paper proposals to International Conference on International Law and Domestic Policies. The Conference will take place on 30-31 October 2015 in Ankara, Turkey. The aim of this International Conference is to evaluate the impact of international law and transnational law on the legal orders of nation states in different national contexts. The importance of international law in an increasingly globalized world is duly and frequently acknowledged. However, it is difficult to say that international law produces the desired impact across different national legal orders. In this context, the aim of the Conference is to provide opportunities to discuss the interplay between international law and domestic policies. Besides focusing on the impact of international treaty and customary law, theConference also welcomes submissions dealing with the effects on domestic policies of other sources of globalized norms, such as the emergence of global common law arising from pressures for regulatory commonality, different trade and investment regimes, international sanctions and others. Scholars, Policy-makers, lawyers, judges and professionals from all disciplines are invited to submit a proposal to the conference organizing committee. For more information, including information on deadline for proposals and accommodation opportunities, please refer to the website of the conference.
  • The American Branch of the International Law Association has extended the deadline until April 10, 2015 on their earlier-issued call for proposals. The unifying theme for ILW 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. ILW 2015 will explore the many roles that international law plays in addressing global challenges. The aim is to provide an opportunity for discussion and debate about the ways in which international law provides fundamental tools and mechanisms to address emerging global issues. ILW 2015 will offer engaging panels on current problems and innovative solutions in both public and private international law. The ILW Organizing Committee invites proposals to be submitted via the ILW Panel Proposal Submission Form located here.

Events

  • On April 8, 2015, the International Committee of the Red Cross and the Georgetown University Law Center’s Military Law Society are sponsoring a panel at the Law Center in Washington, D.C. to consider the question of whether and how the United States might ratify the 1977 Additional Protocol I to the Geneva Conventions of 1949. This panel, addressing the topic: “Is it Time to Ratify AP I?” will consist of four distinguished European and North American legal experts, including: Major-General Blaise Cathcart, Judge Advocate General of the Canadian Armed Forces; Nicolas Guillou, Justice Attaché of the French Embassy in the United States; Christopher Harland, Legal Advisor, International Committee of the Red Cross (ICRC) Regional Delegation for the United States and Canada and William K. Lietzau, former Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy. The panel will be moderated by Richard “Dick” Jackson, Adjunct Professor of Law, Georgetown University Law Center. The event will take place on April 8, 2015 from 6:30 – 8:00 p.m, at the Georgetown University Law Center’s Bernard P. McDonough Hall, Room 201, 600 New Jersey Ave., N.W., Washington, DC 20001. This is a short two blocks from the Hyatt Regency Capitol Hill Hotel, where the American Society of International Law is holding its Annual Meeting next week. The event is free and open to the public. A wine and cheese reception will follow the event.

Announcements

  • Transnational Dispute Management published a new special: TDM 2 (2015) Arbitration in the Middle East: Expectations and Challenges for the Future. Edited by Craig Shepherd and Mike McClure (Herbert Smith Freehills LLP) the papers in this special, which between them discuss the arbitral regimes in Bahrain, Egypt, Iran, Iraq, Jordan, Lebanon, Oman, Pakistan, Palestine, Qatar, Saudi Arabia, Syria, Tunisia, Turkey and the United Arab Emirates (UAE), together with investment treaty arbitration and general trends in the MENA (Middle East and North Africa) region, address the increasing use of arbitration in the Middle East, and the increasing use of Middle East seats.
  • University of Geneva Summer School in International Law will take place from June 15 – July 3, 2015 in Geneva. The University of Geneva is happy to invite applications for the Summer School in International Law. The Summer School in International Law, which is now in its third year, presents an excellent opportunity to learn from a wide range of expert international teaching staff in one of the world’s capitals of international law. The course is structured around three themes, one for each of the three weeks of the program: international economic law, international law and civil society, and international law and politics. Each theme is explored through a week-long “Foundations Course” and three to five “Snapshot Courses” on topics such as the creation of states, WTO law and neoliberalism, internet law, law without the state (transnational law), private international law, global governance, international commercial arbitration, controversial investment arbitration cases, the geopolitics of investment arbitration, the role of non-state actors in international institutions, the international law of intellectual property, and the resolution of international intellectual property disputes. Further information and application details are available online here.

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

Weekend Roundup: April 4, 2015

by An Hertogen

This week on Opinio Juris, Kevin posted links to Justice in Conflict‘s symposium on Palestine and the ICC (1, 2), and commented on John Bellinger’s op-ed on the prosecution of ISIS through the ICC. Following the University of Southampton’s withdrawal of its permission for a conference on Israel, Kevin argued that Israel’s defenders use double standards when it comes to academic freedom. He also asked for reader recommendations for a good book on the practicalities of the re-establishment of diplomatic relations.

Duncan noted the usage of “will”, as opposed to “shall”, in the Iran nuclear deal, as an indication of the political, rather than the legal nature, of the commitments.

In a guest post, Sushma Nagaraj noted the Delhi High Court’s embrace of the Vienna Convention on the Law of Treaties.

Finally, Jessica wrapped up the international news headlines and I listed events and announcements.

Thank you for following us on Opinio Juris. Have a great weekend!

Guest Post: Law of the Sea Tribunal Adopts ‘Due Diligence’ Standard for Flag State Responsibility for IUU Fishing

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law/Professor of Marine and Environmental Affairs at the University of Washington.]

The International Tribunal for the Law of the Sea (Tribunal) continued to develop the law of flag State responsibility in a 68-page advisory opinion issued on April 2, 2015 (Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS Case No. 21, Advisory Opinion of April 2, 2015). Five ITLOS judges wrote separate declarations or opinions.

A “Living” Law of the Sea Convention?

The April 2, 2015 advisory opinion was the first one issued by the full Tribunal. Four years earlier, the Tribunal’s Seabed Disputes Chamber had issued an advisory opinion, as it was expressly authorized to do under Article 191 of the 1982 UN Convention on the Law of the Sea (UNCLOS) (Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area [Request for Advisory Opinion submitted to the Seabed Disputes Chamber], ITLOS Case No. 17, Advisory Opinion of Feb. 1, 2011). In response to the SRFC request concerning IUU fishing, however, several States, including Australia, China, Ireland, Spain and the UK, objected that the Tribunal lacks jurisdiction to issue advisory opinions except in disputes involving the international seabed. Writing separately, Judge Lucky characterized the States’ jurisdictional objections as “cogent, clear and articulate, as well as considerably persuasive,” but he ultimately rejected them (Separate Opinion of Lucky, J.). In doing so, Judge Lucky opined that UNCLOS “is akin to (comparable with) a national constitution” and that, just as the “living constitution” doctrine advocates argue, UNCLOS “must ‘grow’ in accordance with the times.” (Id. ¶ 9). Oddly, in interpreting the Convention, Judge Lucky did not cite the relevant articles of the Vienna Convention on the Law of Treaties until much later in his opinion.

The Opinion

Jurisdictional issues aside, this latest advisory opinion brings needed definition to the law of State Responsibility with respect to UNCLOS. The opinion was issued in response to a 2013 request by the Sub-Regional Fisheries Commission (SRFC) established by seven West African States). The SRFC submitted four questions, principally regarding the obligations and liability of flag States for IUU fishing by their vessels in the exclusive economic zones (EEZs) of another State. In all, 20 judges participated in the decision. They unanimously held that the Tribunal had jurisdiction to issue the advisory opinion, citing Article 138 of the Court’s own rules. At the same time, the Tribunal noted that since the Tribunal was established in 1996 this was the first time an advisory opinion had been issued by the full Tribunal.

In answering the questions presented, the Tribunal distinguished the flag State’s responsibility under UNCLOS from its liability. With respect to the latter question, the Tribunal declared that the liability of the flag State does not arise from a failure of vessels flying its flag to comply with the applicable laws and regulations, because “the violation of such laws and regulations by vessels is not per se attributable to the flag State” (¶ 146). Instead, the liability of the flag State arises from its failure to comply with its own “due diligence” obligations. Thus, the flag State will not be liable if it has taken “all necessary and appropriate measures to meet its ‘due diligence’ obligations” to ensure that vessels flying its flag do not conduct IUU fishing activities in the EEZ of the coastal States (¶ 148).

The due diligence standard adopted by the Tribunal can be traced to the arbitration panel’s decision in the CSS Alabama case, which involved Great Britain’s responsibility for damages done by the CSS Alabama, a Confederate States warship built in Great Britain, in violation of that State’s neutrality in the Civil War (Alabama claims of the United States of America against Great Britain, Award of Sept. 14, 1872, XXIX Reports of International Arbitration Awards 122, 129.) The standard was also adopted in the ITLOS Seabed Disputes Chamber’s 2011 advisory opinion (¶¶ 110-117), in which it cited the ICJ’s 2010 decision in the Pulp Mills on the Uruguay River case (2010 ICJ Rep. 14, 79, ¶ 197).

Importantly, in its opinion the Tribunal cited flag State responsibilities under Articles 58.3 (rights and duties of other states in the EEZ), 62.4 (utilization of living resources of the EEZ), 94 (duties of the flag State) and 192 (general obligation to protect and preserve the marine environment). In a separate opinion, Judge Paik elaborated on the flag States’ obligations under Article 94. Thus, the opinion’s examination of flag State responsibility and the due diligence standard is likely to find application beyond the context of IUU fishing in the EEZ.

John Bellinger’s Op-Ed on ISIS and the ICC (Updated)

by Kevin Jon Heller

The op-ed, which appears in today’s New York Times, argues that the ICC is the most appropriate venue for prosecuting ISIS’s many international crimes. I have great respect for John, who is unique among former high-ranking US government officials in his willingness to defend the ICC, but the op-ed makes a number of arguments that deserve comment.

It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

There is no question that ISIS is responsible for horrific international crimes that deserve to be prosecuted. But does it “certainly make more sense” for the ICC to prosecute those crimes than British torture in Iraq, US torture in Afghanistan, and Israel’s vast array of crimes against Palestinian civilians in Gaza? That’s not self-evident. Readers know my skepticism toward the ICC investigating the situation in Palestine, but the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable — it would get the ICC out of Africa; it would affirm that torture, a crime that rarely involves a large numbers of victims, is unacceptable and deserving of prosecution; and — of course — it would demonstrate that no state, no matter how powerful, is immune from international criminal justice.

At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.

[snip]

A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

A Security Council referral is not actually necessary, because the ICC’s jurisdiction is not simply territorial. The Court can also prosecute any international crime committed by a national of a state that has ratified the Rome Statute. Many ISIS leaders are nationals of ICC member-states — including Jihadi John, who is a UK national. So the ICC could prosecute those leaders tomorrow if it had them in custody. Indeed, Fatou Bensouda has already mentioned the possibility of such nationality-based prosecutions.

Moreover, a Security Council referral may be more trouble than it’s worth. John himself notes a major problem: if the territorial parameters of any such referral exposed members of the Syrian government to ICC jurisdiction, Russia and/or China would almost certainly veto the referral. And what if the referral exposed Syrian rebels to ICC jurisdiction? I can’t imagine the US, France, and the UK would be too keen about that — not least because it would provide the ICC with a backdoor to prosecuting their nationals for aiding and abetting rebel crimes.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel.

I don’t see why, given that the ICC has not opened a formal investigation in Afghanistan despite having examined the situation for eight years and has only had jurisdiction over Israel’s crimes for a few months. Moreover, John never explains why any ICC investigation of the US or Israel would necessarily be “inappropriate and politicized,” given that both states have quite obviously committed crimes within the Court’s jurisdiction. Why should the ICC only prosecute the US’s enemies — never its friends, and certainly never the US itself? Americans and Israelis might like that idea, but I imagine few others would accept it.

[B]ut the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

I’m not so sure, at least in the context of ISIS — and this is my basic issue with John’s op-ed. Does the ICC really need yet another situation to investigate, given its already overtaxed resources? And do we really want the Security Council to refer the ISIS situation, given that there is almost no chance it will finance the resulting investigation? (See, for example, the failed Syria resolution.) Moreover, why should the ICC prosecute ISIS leaders when states like the US, the UK, and Japan (and Germany, and France, and…) are just as capable of prosecuting those leaders themselves — if not more so? They have investigative and prosecutorial resources the ICC can only dream of. So why should the ICC do their work for them?

I’ve said it before, and I’ll say it again: we need to stop assuming that the ICC is always the best venue for prosecuting international crimes. It’s not. It’s a weak Court with more failures than successes on its ledger. Even under ideal circumstances — unlikely to exist — it would never be able to prosecute more than a handful of ISIS leaders. And if past cases are any indication, there is no guarantee those prosecutions would lead to convictions. So if states really want to bring ISIS to justice, the solution is there for all to see.

They should do the job themselves.

NOTE: I am not implying that John invented the idea that the ICC should investigate ISIS crimes. As he notes in his op-ed, the new UN High Commissioner for Human Rights has previously suggested the same thing. But that in no way changes my position — and I think it’s unfortunate that High Commissioners see the ICC as the first resort instead of the last, even in situations (such as ISIS) where, unlike states, the ICC has no ability to effectively investigate. The previous High Commissioner exhibited the same problematic tendency, calling on the Security Council to refer Syria to the ICC despite the fact that the Court would be powerless to investigate Syrian and rebel crimes as long as the conflict continues. Security Council referrals only make sense after a conflict has ended — and not even there, unless the Security Council is willing to give its referrals teeth by funding the subsequent investigation and punishing states for not cooperating with the ICC, which it has shown no interest whatsoever in doing. Do we really need more failed ICC investigations like the one in Darfur?

The Iran Deal as a Political Commitment

by Duncan Hollis

I have to teach in 5 minutes so I just wanted to post a quick link and one comment on the Iran deal reached earlier today.  Those who want to read the joint statement itself — you can read it here.  My first reaction, based on my primer of a few weeks ago, is that it sure looks like the deal is taking the (widely anticipated) political commitment form, supplemented with the idea that a subsequent UN Security Council resolution will provide international legal force to it and the further details to be elaborated in the coming weeks.

My one comment is that this deal reflects an interesting development in US treaty/political commitment practice.  It signals (I think) the death knell of the old “will” vs. “shall” debate in determining whether a commitment was intended to have legal force or not.  For years, countries like the UK insisted that the verb “will” (which they frequently deploy in MOUs) per se reflected a lack of legal intention as opposed to the verb “shall”, which they believed was indicative of a treaty commitment.  In contrast, the United States took the position that “will” in many instances seemed indistinguishable from “shall” and thus the mere shift in wording could not, by itself, provide sufficient evidence of whether a treaty or political commitment was intended.  As a result, the United States regularly sought to avoid using both “will” and “shall” in its political commitments. Many hours and negotiating nights were, if you can believe it, spent wrestling over this issue.

Well, looking at the deal reached today, I count quite a few uses of the verb “will”.  Thus, it seems to me (unless I’m missing something, which is entirely possible), the United States may have finally conceded to the simplicity of the Queen’s English and allowed that using will, as in this deal, can be a way to signal to readers the parties intend a political commitment and not a treaty.

For those who want more, Dan Joyner has a more substantive take over at his blog.