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Weekend Roundup: September 20, 2014

by An Hertogen

This week on Opinio Juris, we hosted an insta-symposium on the Scottish Independence Referendum. David Scheffer surveyed the legal terrain in case of a yes vote, Stephen Tierney discussed how Scotland’s move to independence would be characterised under international law, Milena Sterio argued that international law could develop a norm containing a positive right to secession under certain circumstances, Jure Vidmar looked at Scotland’s position in the EU, Tim Sparks took a long view, and Christopher Connolly discussed the phrasing of the referendum question. Finally, Chris asked whether there will be a Scottish precedent.

In other guest posts, Eliav Lieblich updated us on recent developments in an Israeli case reviving international prize law, Leila Nadya Sadat and Douglas J. Pivnichny wrote about recent steps towards a comprehensive treaty on crimes against humanity, Yanying Li alerted us to a UNGA resolution on a multilateral framework for sovereign debt restructuring, and Michael W. Lewis responded to Kevin’s critique last week of his post on the nature of self-defense.

In other posts by our regular contributors, Kevin criticized the University of Sydney for restricting academic freedom after it “un-invited” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific. Peter asked if ISIL fighters can be stripped of their passports, and remarked that the AUMF basis for an ISIL intervention looks likely to stick. More on ISIL came from Jens who discussed the issue of ransom and material support for terrorism. Finally, Kristen explained why the Security Council’s decision to take up the issue of Ebola is significant.

As always, Jessica wrapped up the news and listed events and announcements. Duncan also updated us on the new Executive Director of ASIL.

Many thanks to our guest contributors and have a nice weekend!

ISIL Foreign Fighters: You Can’t Take Their Citizenship. Can You Take Their Passports?

by Peter Spiro

The concern over ISIL foreign fighters had ramped up even before President Obama announced that he will preside over a September 24th UN Security Council Meeting on the subject. No surprise that politicians are jumping on the bandwagon. Ted Cruz introduced legislation last week in the Senate that would purport to terminate the citizenship of those associated with terrorist organizations. Michelle Bachmann has done the same over in the House. (Funny how the two chief sponsors of expatriation laws have their own personal experience with the loss of citizenship, Cruz with Canadian, Bachmann with Swiss.)

But Bachmann’s bill goes further in mandating passport revocation.

SEC. 4. AUTHORITY TO DENY OR REVOKE PASSPORT AND PASSPORT CARD.

(a) Ineligibility-

(1) ISSUANCE- Except as provided under subsection (b), the Secretary of State may not issue a passport or passport card to any individual whom the Secretary has determined is a member of an organization the Secretary has designated as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189) that is engaging in hostilities against the United States or its allies.

(2) REVOCATION- The Secretary of State shall revoke a passport or passport card previously issued to any individual described in paragraph (1).

(b) Exceptions-

(1) EMERGENCY AND HUMANITARIAN SITUATIONS- Notwithstanding subsection (a), the Secretary of State may issue a passport or passport card, in emergency circumstances or for humanitarian reasons, to an individual described in paragraph (1) of such subsection.

(2) LIMITATION FOR RETURN TO UNITED STATES- Notwithstanding subsection (a)(2), the Secretary of State, before revocation, may–

(A) limit a previously issued passport or passport card only for return travel to the United States; or (B) issue a limited passport or passport card that only permits return travel to the United States.

In contrast to citizenship-stripping, this kind of passport-stripping would pass constitutional muster from a rights perspective. In Haig v. Agee, the Supreme Court upheld passport revocation where justified by national security interests (that case involved Philip Agee, notorious for disclosing the names of undercover CIA operatives). No problem doing that in the context of ISIL fighters, one wouldn’t think.

To the extent there’s an issue here, it would involve separation of powers, Congress dictating to the President. The Supreme Court will have something to say about that this term. But the humanitarian exceptions clause undercuts any claim that this trespasses on presidential power, regardless of where the Zivotovksy case ends up.

At the same time, it’s pretty clear that the President could do this on his own (that was the case in Agee). A UNSC resolution (assuming one is adopted) would further legitimize the policy. Insofar as Congress has trouble getting its act together on anything, the Obama Administration might make passport-stripping a subsidiary component of its anti-ISIL strategy.

Scottish Independence Insta-Symposium: The Legal Terrain Following a Yes Vote for Scottish Independence

by David Scheffer

[David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law.]

If the Scottish people vote in the majority on September 18th to become an independent nation, then a host of legal issues will descend immediately upon Holyrood, where the Scottish Parliament sits in Edinburgh, and Westminster, the legislative center of the United Kingdom Government in London.  Some of these issues can be overcome if there is a willingness to negotiate in good faith.  Otherwise, obstructionist and stubborn negotiating tactics can result in a bitter fight to the end, which will be 24 March 2016 if Holyrood’s schedule stands for Scotland to break away as a newly-minted sovereign state.

The Edinburgh Agreement of 15 October 2012, signed by First Minister Alex Salmond for the Scottish Government and Prime Minister David Cameron for the United Kingdom, provides the legal platform for the September 18th referendum.  Whatever is decided on that day has the legitimacy required under British law to move forward either with the United Kingdom as a unified country (if there is a majority no vote) or with the emergence of an independent Scotland following separation negotiations between Holyrood and Westminster and the necessary parliamentary acts (if there is a majority yes vote).

Section 30 of the Edinburgh Agreement is critical as to the aftermath, stating that the two governments “look forward to a referendum that is legal and fair producing a decisive and respected outcome.  The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”  That has long been understood to mean that negotiations between Holyrood and Westminster would commence in the event of a “yes” vote for independence.

Yet for months Westminster and the three main UK political parties (Conservative, Labour, Liberal) have waged their “no” campaign with scare tactics premised, it seems, on there being no meaningful negotiations at all.   Their message is that if there is a “yes” vote, then the protectionist shields will rise at Hadrian’s Wall and the remainder of the United Kingdom (rUK) will simply go its own way as the “continuator state,” leaving Scotland to survive or sink on its own.  Nothing could be further from reality, and Westminster knows that.

It will be in the interests of Westminster and the citizens of rUK to work out how to continue prosperous commercial and social relations with the Scottish people and sustain bonds with Scotland as a close ally.  Alienating Scotland with arrogant posturing now—a raw campaign tactic—as well as later during the inevitable negotiations is an irrational game plan for Westminster.  In fact, the tightening polls in Scotland seem to confirm that the bluff is backfiring.

The first legal issue upon which so much else depends centers on the law of state succession—what will be the legal outcome regarding statehood if Scotland and rUK split?  Westminster and many international lawyers insist that the rUK will be the continuator state, thus continuing the status quo in almost all treaty and international organization relations, while Scotland would be cast off as a new state to initiate its own treaty relations, currency, and membership in international organizations—the “clean slate” approach.  Such a punitive view of Scottish self-determination would force Holyrood onto the most arduous pathway towards statehood and presupposes either unnecessarily complex negotiations with no end in sight or no credible negotiations at all.  Westminster’s tactic is built upon a pyramid of presumptions arising from the initial premise of the continuator theory and yet little of which relates to the sui generis character of the Scottish situation, as I have examined elsewhere.

The unique history of the Scottish and English union of 1707 and the fact that since the 1970s we have seen unfold in Scotland a distinctly modern form of self-determination colors this entire exercise.  Nowhere else are the facts even similar regarding this remarkably peaceful and progressively building process of devolution leading to the renewed independence of a once sovereign nation, including the consent of the UK Government to hold such a referendum.  Legal theories on state succession based upon irrelevant practices of decolonization and stale notions of what constitutes customary international law simply do not work here.

Indeed, the modern formulation of state succession framed in the 1978 Vienna Convention on Succession of States in Respect of Treaties for a situation of this character points towards negotiated co-equal successor state status for both Scotland and the rUK during post-referendum negotiations.  If Holyrood and Westminster cooperate in good faith during the negotiations as co-equal successor states, they can create a pathway of mutually agreed and beneficial continuation of various treaty obligations for both states, Scottish membership in the European Union, continued UK membership as a permanent member of the UN Security Council, and a smooth transition for Scotland to join NATO and other international organizations.

Regarding the European Union, if one theoretically were to design the most judicious and EU-compliant path towards internal enlargement, the Scottish experience would set the gold standard.  Scotland is already part of the European Union because it is part of the United Kingdom.  The Scottish people are EU citizens with important rights under EU law.  Given those realities, transitioning to Scotland and the rUK following a “yes” vote on the referendum should be negotiable with Brussels in order to sustain the membership of both nations in the EU.  Surely that would be to the advantage of the European Union.  Caustic and unsubstantiated statements by EU officials and Westminster politicians in the past that relegate Scotland to new applicant status shorn of any existing rights under EU law have been narrow-minded expressions of insecurity.  I recently argued in Brussels, “[Scotland] is truly a sui generis phenomenon within the European Union and efforts to create false symmetries with other sub-state aspirations on the European continent are misleading.”

Of course, much is complicated by Prime Minister Cameron’s intention, expressed on 23 January 2013, to renegotiate parts of the UK’s relations with the European Union and hold a referendum by 2017 to determine continued membership of the UK in the Union. The anti-EU fervor arising from both Conservative and Labour party ranks and manifested in the United Kingdom Independence Party stands in contrast to the Scottish Government’s strong allegiance to the European Union and for sustained EU membership for an independent Scotland.  For rUK negotiators to threaten their Scottish counterparts with outcast status in the European Union while London plots its own withdrawal would be supremely ironic and not easily overlooked.

Each side has a different take on how to proceed with EU membership for Scotland.  The Scottish Government favors amending the Treaty of the European Union (TEU) under Article 48 to create procedures for continued Scottish membership.  This “continuity of effect” assumes transitioning Scotland’s current status as part of the United Kingdom into a newly sovereign status in a fully integrated way within the European Union’s legal, economic, institutional, political and social frameworks.  But this approach requires Westminster to seek such amendments as a willing partner following a yes vote on the referendum.

Westminster and some European Commission officials insist that Scotland would have to apply for membership in the European Union under Article 49 of the TEU just like other new applicants that have never been part of the European Union, like Croatia recently.  There doubtless would result a significant gap in EU membership for Scotland, which might be forced to delay the process until it achieves sovereign statehood status. A legal nightmare may well ensue. If Westminster intends to punish Holyrood following a yes vote, rather than negotiate in good faith, this would do it.

A negotiated formula, however, that essentially melds together procedures of Articles 48 and 49 of the TEU with the support of Westminster in discussions with EU leaders in Brussels and EU member states could provide a reasonable framework for keeping Scotland in the European Union with the least degree of disruption.  This formula would open the way for Holyrood to negotiate what normally would be required under Article 49 for membership, but to do so during the period prior to Scottish statehood with an Article 48 amendment process.  Westminster can facilitate this by joining with Holyrood in such negotiations and thus be the EU member state at the table.  That would reflect the true spirit of Section 30 of the Edinburgh Agreement already agreed to by the two parties.  Westminster’s role is critical, for under the procedures of either Article 48 or Article 49 of the TEU, the unanimous consent of all 28 EU member states would be required to facilitate Scotland’s membership in the European Union.

Perhaps the most divisive issue in recent months has been over the Scottish Government proposal that a currency union be formed between Scotland and rUK to sustain use of the pound sterling by an independent Scotland. There are considerable complexities to any currency option for an independent Scotland, but Westminster has slammed the door on a currency union prior to any negotiations and taunted First Minister Salmond to state his Plan B.

For Salmond to have put forward any Plan B before the referendum would cave into Westminster’s cynical tactic prior to any serious negotiations on currency that could work to the benefit of both nations.  Such bullying by unionists may have chalked up a  few debate points, but it has stirred anti-UK sentiment in Scotland while ignoring the fact that during post-referendum negotiations the Scots have some trump cards of their own.

One of those cards is that if Westminster insists that UK will be the continuator state of the United Kingdom and refuse a currency deal, Scotland can beg off sharing the UK debt and let Westminster shoulder the entire estimated burden of £1.6 trillion by 2016/17. That would comply with the logic of rUK being a continuator state.  Holyrood has offered to accept partial liability on the UK debt but obviously only after negotiations that settle all issues, including division of assets. The markets likely would respect Scotland’s willingness to pay, but also calculate the punitive character of a refusal by Westminster to negotiate currency issues with the result that Scotland’s economy would be unshackled of UK liabilities.  In an effort to reassure the markets, the UK Treasury agreed earlier this year to cover all UK gilts in the event of Scottish independence, but did so assuming that Holyrood still would shoulder a portion of the UK debt.  Not so fast, as Holyrood will have its own demands in such negotiations.

Whatever the outcome on September 18th, the people of Scotland will have acted democratically and peacefully to determine the fate of their nation.  That itself will be a significant achievement under the rule of law.

Weekly News Wrap: Monday, September 15, 2014

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

  • At least 14 people, mostly civilians, have been killed in US air strikes in Afghanistan, officials have said, sparking condemnation from President Hamid Karzai who has often criticised the conduct of the NATO forces. 
  • China’s President Xi Jinping urged Central Asian states to step up the fight against religious extremism and cyber terrorism, state media said, as Beijing reaches for help across its borders in addressing security concerns in its restive Xinjiang region.
  • As Scotland heads to the polls this week to vote on whether to become independent, one country with restive regions of its own is watching the debate unfold with nervousness and some mystification – China.

Europe

Americas

Oceania

UN

  • Disruptions in cross-border trade and marketing in the three West African countries most affected by the Ebola outbreak – Liberia, Sierra Leone and Guinea –have sent food prices soaring, threatening food security in the region, according to an alert issued last week by the UN’s Food and Agriculture Organization. 
  • A flurry of meetings is scheduled for the coming weeks as WTO members – having now returned to Geneva following their annual August break – try to pick up the pieces after missing a key implementation deadline this past July.

Guest Post: The Crimes Against Humanity Initiative and Recent Developments towards a Treaty

by Leila Nadya Sadat and Douglas J. Pivnichny

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and the Director of the Whitney R. Harris World Law Institute. Douglas J. Pivnichny is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.]

Last month, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity. Although this post will not rehearse the reasons a treaty is needed, an eloquent case for a treaty can be found in an important 1994 article by Cherif Bassiouni.

Professor Murphy’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles for Commission’s approval. The Commission first included the topic of crimes against humanity on its Long-Term Programme of Work in 2013 on the basis of a report prepared by Professor Murphy.  This report identified four key elements a new convention should have: a definition adopting Article 7 of the Rome Statute; an obligation to criminalize crimes against humanity; robust inter-state cooperation procedures; and a clear obligation to prosecute or extradite offenders (para. 8). The report also emphasized how a new treaty would complement the Rome Statute (paras. 9-13).

The Crimes Against Humanity Intiative
(more…)

Events and Announcements: September 14, 2014

by Jessica Dorsey

Events

  • The Raoul Wallenberg Legacy of Leadership event will take place in New York on September 18th at Yeshiva University’s Cardozo School of Law. The event will include a panel discussion about the responsibility to prevent genocide and mass atrocities as well as keynote addresses by Jan Eliasson, Deputy Secretary-General of the United Nations, Irwin Cotler, former Canadian Minister of Justice, and Luis Moreno Ocampo, former Chief Prosecutor for the International Criminal Court. The event will take place September 18, 2014, 5:00 pm to 7:00 pm at the Moot Court Room, Benjamin N. Cardozo School of Law, 55 5th Avenue, New York. Interested persons can register online by clicking here.
  • The American Society of International Law and the New York Law School Panel Discussion on “The Need for a Disability Rights Tribunal in Asia and the Pacific,” Monday, September 29th at 185 West Broadway, New York, New York, 10013. The existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights for persons with disabilities in those regions of the world where such tribunals exist. The lack of a court or commission in Asia and the Pacific has been a major impediment in the movement to enforce disability rights. The need for such a body has further intensified since the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD). The creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be the first necessary step leading to amelioration of the deprivation of civil rights of people with disabilities. Panel Members include Eva Szeli, former director of European Operations for Mental Disability Rights International, and co-author of International Human Rights Law and Comparative Mental Disability Law: Cases and Materials (Carolina Academic Press 2016); Maya Sabatello, lecturer on human rights and co-author of Human Rights and Disability Advocacy (U. of Pennsylvania Press 2013); Michael Stein, Harvard Law School & William and Mary Law School; co-director, Harvard Law School Project on Disability; and Moderator, Michael L. Perlin, New York Law School, Director, International Mental Disability Law Reform Project. For more information contact Michael Perlin (mperlin [at] nyls [dot] edu).

Calls for Papers

  • The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on Friday, December 12th, 2014, in New York City.  Authors interested in presenting a paper at the workshop can submit an abstract to David Gartner (David [dot] Gartner [at] asu [dot] edu), Julian Arato (arato [dot] julian [at] gmail [dot] com), and Sarah Dadush (sdadush [at] kinoy [dot] rutgers [dot] edu)  by the end of the day on October 1, 2014. Abstracts should be a couple of paragraphs long but not more than one page. Papers should relate to the topic of international institutions and governance.  Papers should not yet be in print so that authors will have time to make revisions based on the comments from the workshop. 
  • The Utrecht Journal of International and European Law is issuing a call for papers on ‘Privacy under International and European Law’. Relevant issues may have broader implications, including: the responsibility of private actors under international law; privacy as a human right; the conflict between State interests and individual rights; the internet and territorial limits; data protection; diverging national approaches to the protection of privacy and the rise of The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online via the website and should conform to the journal style guide. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult the website or email the editors at utrechtjournal [at] urios [dot] org. Deadline for Submissions: 30 September 2014.
  • The Board of Editors is pleased to announce Government Procurement as the theme for its next Special Issue (Vol. VII, No. 1). The Plurilateral Agreement on Government Procurement (‘GPA’) aims to promote transparency, integrity and competition in the purchase of goods and services by government agencies. Preferential treatment for domestic goods and services are envisaged as trade barriers. Participating governments are also required to put in place domestic procedures by which aggrieved private bidders can challenge procurement decisions and obtain redress in the event of inconsistency with the GPA. However, States have political and economic interests in promoting their own small and medium scale industries. Therefore, the attempt to harmonize these objectives raises issues with reference to market access and the benefits of “good governance” under the GPA. Existing literature is inadequate to effectively equip policymakers to deal with such issues. The Board of Editors is pleased to invite original and unpublished submissions for the Special Issue on Government Procurement for publication as ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’. Manuscripts may be submitted via e-mail, ExpressO, or the TL&D website. For further information and submission guidelines, please visit the Journal’s website: www.tradelawdevelopment.com. The last date for submission of manuscripts is 15th February, 2015. In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

Announcement

  • The upcoming session of the Leiden University Advocacy and Litigation Training Course is now open for registration. The training will be held in The Hague from 24 November to 28 November 2014. During this 5-day course the participants will be trained in the skills of case theory, opening statements, direct examination (examination-in-chief), cross-examination, re-examination, closing statements and legal submissions skills. Students will be engaged in role play and practical exercises. The course will be concluded with a mock trial at the end of the week.  Apart from the theory and the practical exercises, the course offers visits to the International Criminal Court and the Special Tribunal for Lebanon. The training will be given by two experienced defence counsels who have worked on high profile cases before international criminal tribunals. The course fee amounts to €1100. Graduate students and professionals who wish to improve and develop their advocacy skills are invited to register through the Grotius Centre website.

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

Guest Post: Update on Israel/Palestine and the Revival of International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC)]

Back in January, I wrote a guest post  about prize proceedings initiated by the Government of Israel against the Finnish vessel Estelle, intercepted by the Israeli navy while attempting to breach the Gaza blockade in late 2012. As I wrote back then, the proceedings were held before the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel. The State based its application to condemn the vessel on old pieces of British legislation, which granted prize jurisdiction to courts in Mandatory Palestine (the British Naval Prize Act of 1864 and the British Prize Act of 1939).

As I noted back in January, prize powers have never been exercised by Israel before. Moreover, prize proceedings are extremely rare globally. Indeed, since customary prize law allows belligerents to capture and condemn private vessels – both “enemy” and, in some cases, “neutral” – prize law seems at odds with contemporary human rights norms protecting private property.

In this context, my January post raised several questions for the Haifa Court. Among these, I’ve questioned the continuous relevance of prize law in the human rights era, and whether Israeli administrative law will affect the Court’s understanding of prize law. Well, the wait is over: on August 31, the Court (Judge Ron Sokol), has rendered a 33-page decision in The State of Israel v. The Vessel Estelle.

I will spare the readers from detailing the Court’s finding of jurisdiction, although doubtless interesting to legal historians: the bottom line is that it has found itself to have inherited the jurisdiction from the former British prize courts in Palestine. But the Court had some interesting things to say in terms of substantive prize law. (more…)

So Much for Academic Freedom at the University of Sydney

by Kevin Jon Heller

There’s been much discussion in the blogosphere about the University of Illinois’ decision to “un-hire” (read: fire) a Palestinian-American scholar who resigned a tenured position at Virginia Tech to join its faculty, a decision motivated by a series of anti-Zionist (but not anti-Semitic) tweets that made the University’s wealthy donors uncomfortable. But the rightful revulsion at Illinois’ decision (more than 5,000 academics, including me, have agreed to boycott the University until Steven Salaita’s offer of a tenured position is honoured) shouldn’t obscure the fact that Illinois is far from the only university that does not take academic freedom seriously.

Case in point:  the University of Sydney’s distressing decision — abetted by one of its faculty members — to “un-invite” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific because of pressure from the Sri Lankan military. Here’s a snippet of the Guardian‘s story, which deserves to be read in full:

The University of Sydney has withdrawn invitations for two Sri Lankan human rights organisations to an international conference at the request of the Sri Lankan military, angering campaigners.

The university is due to host a two-day event in Bangkok from Monday along with the University of Colombo, which will see delegates from around the world discuss the enhancement of human rights in the Asia Pacific region.

Delegations from the Sri Lankan military and the Sri Lankan police are expected to attend the conference. Leaked correspondence, seen by Guardian Australia, shows that these delegations had originally requested that all non-government organisations (NGOs) from Sri Lanka be uninvited, and organisers subsequently rescinded two invitations.

The civil war in Sri Lanka, in which up to 100,000 people were killed, ended in 2009. The Rajapaksa regime stands accused of war crimes for its brutal suppression of civilians in the north of the country, with both sides subject to a UN human rights council inquiry into alleged war crimes.

Australia was one of 12 countries to abstain in a UN vote for the investigation.

Guardian Australia has also seen a letter discussing the reasons for rescinding the invitations to the two NGOs sent by the conference’s director, University of Sydney associate professor Danielle Celermajer.

“With about 130 people from across the region confirmed from the conference, it would be a disaster for all members of the Sri Lankan forces, who have been at the heart of the project, to withdraw,” it states.

As the article’s reference to the UN vote indicates, Tony “Difficult Things Happen” Abbott’s administration has proven to be one of the murderous Sri Lankan government’s staunchest allies. But that’s a right-wing government for you; no surprise there. It’s absolutely appalling, though, that a major Australian university cares so little about academic freedom that it would allow the Sri Lankan military to dictate who can attend a conference it sponsors — a conference about the enforcement of human rights in the region.

Dr. Celermajer says it would be a “disaster” for the academic conference if the Sri Lankan military didn’t attend. You know what an actual disaster is? The Sri Lankan military’s systematic violation of the human rights of hundreds of thousands of Sri Lankans — the very acts that make the conference in question so necessary.

I guess it’s more important to discuss human-rights violations among the perpetrators than among those who work to end the violations. Shameful.

NOTE: You can find the powerful open letter the Sri Lanka Campaign for Peace and Justice sent to participants in the conference — ironically entitled “Enhancing Human Rights and Security in the Asia Pacific” — here. Key line: “By allowing the Sri Lankan Army to dictate who can or cannot attend, the organisers of this conference are, in effect… potentially making themselves complicit in the Sri Lankan government’s systematic attempts to suppress dissent and intimidate critical voices within civil society, and to legitimize that policy internationally. “

Weekend Roundup: September 6 – 12, 2014

by An Hertogen

This week on Opinio Juris, summer vacation is officially over. We hope that all of our readers in the Northern Hemisphere enjoyed a great break – hopefully not quite like the Russian soldiers in Ukraine that Jens commented on. For those of us in the Southern Hemisphere: it’s almost summer!

Kevin followed up on an earlier post arguing that despite the recent release of a White Paper we do not yet know the CIA’s public-authority justification for violating 18 USC 1119, and explained why an argument based on Title 50 does not work in his view. He then posted a two-part response (1, 2) to Bobby Chesney’s reply on this last post over at Lawfare, and analysed their different readings of the AUMF.

The AUMF was also central to commentary on President Obama’s address regarding air strikes against ISIS. In anticipation of President Obama’s speech, Peter had put forward three reasons why President Obama should not seek congressional approval for airstrikes on ISIL. Jens was first out of the blocks after the address, to argue that Obama was walking a thin line, and later on that the AUMF does not cover ISIS. Peter and Deborah agreed with Jens on the applicability of the AUMF and Peter added that Obama could have played a different card. Deborah then followed up with an analysis of the theory that ISIS is Al Qaeda rather than considering it an “associated force”.

In other ISIL- related posts, Peter commented on Ted Cruz’ initiative to strip ISIL fighters from their US citizenship, and Kevin responded to a post by Mike Lewis over at Just Security on the application of the “unwilling or unable” test in the context of article 51 UN Charter.

Finally, Jessica wrapped up the news and I listed events and announcements. We’re running an insta-symposium on the Scottish independence referendum next week, and are still welcoming submissions. If you saw last week’s announcement by Matrix Chambers, you may want to take note that the deadline has been extended.

Have a nice weekend!

Mike Lewis Is Wrong About the Nature of Self-Defence

by Kevin Jon Heller

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman’s recent post exploring what the US’s claimed “unwilling or unable” test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test “remains controversial under international law.” Mike doesn’t seem to have any such qualms, but that’s not what I want to respond to here. Instead, it’s important to note that Mike makes a basic error concerning how the “unwilling or unable” test functions — assuming for sake of argument it is a valid approach to self-defence under Art. 51 of the UN Charter (emphasis mine):

It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.

Um, no. The entire point of arguing self-defence — in any form, including pursuant to the controversial “unwilling or unable” test — is that it cures any violation of state sovereignty under Art. 2(4) of the UN Charter. So if the US attacked ISIS in Syria because Syria was unwilling or unable to prevent ISIS from using its territory as a base for attacks, the US would not violate Art. 2(4) and Syria would have no right whatsoever to act in self-defence against that armed attack. Indeed, any attempt to “prevent such attacks and to destroy the drones/aircraft conducting such attacks” would represent an act of aggression by Syria against the US, thereby opening the door to legitimate acts of self-defence against Syria itself.

Again, I don’t accept that the “unwilling or unable” test reflects current customary international law. But it’s important not to let that debate obscure how self-defence functions under Art. 51 of the UN Charter.

Matrix Chambers Application Deadline Extended

by Kevin Jon Heller

Matrix Chambers has extended the deadline for applying to September 26 — two weeks from today. I hope readers with the appropriate credential will consider applying.

You can find the original post, with details of the Matrix vacancy, here.

On the Theory that ISIL is Al Qaeda

by Deborah Pearlstein

At the prompting of Marty Lederman and Steve Vladeck, let me take a moment to consider another possible reading of the Administration’s novel view that the 2001 AUMF authorizes its incipient campaign in Iraq and Syria. Recall that the AUMF authorizes the use of “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11 and those who “harbored such organizations or persons.” The Administration and the lower courts have thus interpreted the AUMF to authorize the use of force against Al Qaeda, the Taliban, and “associated forces.” My earlier post examined the notion that ISIL was an “associated force” of Al Qaeda. Marty and Steve suggest that the Administration isn’t arguing that ISIL is an “associated force” of Al Qaeda, but rather, that ISIL is Al Qaeda. As Marty explains it:

In 2004, ISIL (then known as al Qaeda in Iraq) was part of al Qaeda proper–subject to its direction and control–in which capacity it attacked U.S. persons and was subject to U.S. combat operations. (Indeed, it was engaged in an armed conflict with the United States.) As such, ISIL was then covered by the 2001 AUMF as a component of al Qaeda. More recently, ISIL and al Qaeda “Central”–its “senior leadership”– have split apart. But ISIL has continued to attack U.S. persons, even after the split; and each of these two groups claims the mantle of al Qaeda–indeed, ISIL’s position (“supported by some individual members and factions of AQ-aligned groups”) is that it, not AQ Central, “is the true inheritor of Usama bin Laden’s legacy.” Accordingly, there are now, in effect, two al Qaedas, each of which was a component of the earlier, consolidated organization, and each of which continues its attacks on the U.S.

In other words, picture an upside-down letter “V” or “Λ.” At the single, sharp point of the Λ is the organization called Al Qaeda, which is responsible for the attacks of 9/11, and which at one point included all of what we now call core al Qaeda (led by Osama bin Laden, now Ayman al-Zawahiri), as well as what was once called al Qaeda in Iraq (AQI) (led by Abu Musab al Zarqawi). Over time, the unity at the top of the Λ has given way to a disunity at the bottom – with both core Al Qaeda (Zawahiri’s group) and AQI (now called ISIL, led by Abu Bakr al-Baghdadi) seeking to, as Marty puts it, “claim the mantle of al Qaeda.”

While identifying a variety of problems with the notion as a matter of statutory interpretation that the AUMF authorizes the use of force against both groups at the bottom of the Λ, both Marty and Steve argue that in key respects the validity of the theory depends on facts that are still not entirely known to the public. Is it accurate as a matter of fact to suggest that both core Al Qaeda and ISIL are both claiming or should be seen to have equal claims to “the mantle of al Qaeda”? One can imagine several ways of trying to take this theory seriously. One would begin by defining what the “Al Qaeda” at the top of the Λ (the group that attacked us on 9/11) was in the first place. One might define a terrorist group in a variety of terms, and I’m certainly open to definitional criteria. For present purposes, let’s take a handful: the organization’s name, its mission, its capacities and personnel, or any combination thereof. Then one would have to hold up each putative successor organization and see if there were any/sufficient commonality to call both AQ core and ISIL part of the same organization that attacked us on 9/11. Could ISIL in any sense assert a claim to carrying the mantle of Al Qaeda? What do we know? (more…)