Recent Posts

Lawfare Podcast on al-Bahlul

by Kevin Jon Heller

While in DC last week for the ICC/Palestine event at George Mason — I’ll post a link to the video when it becomes available — I had the pleasure of sitting down with Lawfare’s Wells Bennet and Just Security’s Steve Vladeck to discuss the oral argument at the DC Circuit on the al-Bahlul remand, which the three of us attended that morning. You can listen to the podcast at Lawfare here; Steve did most of the talking, because he understands the constitutional issues in the case better than anyone, but I weighed in a few times on the international-law side. I hope you enjoy it — and my thanks to Wells for inviting me to participate.

Legal Issues at the GA This Fall

by Kristen Boon

For those interested in the 6th committee program at the General Assembly currently underway,  the schedule is available here.   Interesting topics are being discussed, including the Rule of Law, International Terrorism, Universal Jurisdiction, finalizing a draft UNCITRAL treaty on transparency in treaty based Investor-State disputes, and an update on the Responsibility of International Organizations.  The ILC’s report will be discussed between October 27 – November 5.  Documents for the sessions are available on the PaperSmart portal, and all the plenaries can be viewed by live webcast here.

In addition, on Thursday, Oct. 16, elections will take place for five non-permament Security Council seats.   Background on the seats available and the countries vying for them is available here.

 

Panel at George Mason on the ICC and Palestine

by Kevin Jon Heller

I will be participating next week in what should be an excellent event at George Mason University on the ICC and Palestine. The other participants are all excellent — David Luban, Meg DeGuzman, George Bisharat, and the organizer, Noura Erakat. Here is the flyer:

FINALFLYEROCTOBERPANELJpeg

I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do, make sure to come say hello.) The event will be live-streamed for those that do not live nearby.

Weekly News Wrap: Monday, October 13, 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

Europe

Americas

Oceania

UN/World

  • UN Secretary-General Ban Ki-moon has made a surprise visit to the Libyan capital aiming to bolster talks between rival groups that have divided the North African nation with two separate parliaments and governments.

A Quick Bleg on the US and Self-Defence

by Kevin Jon Heller

A few years ago, John Brennan articulated the US position concerning self-defence against non-state actors:

Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.

As the quote makes clear, the US believes that its position is consistent with international law. Yoram Dinstein takes a similar position in his seminal War, Aggression and Self-Defence, at least in the context of international armed conflict. So here are my questions:

[1] Does anyone know where the US might have defended/explained its position at more length, whether in a legal brief or elsewhere?

[2] Does anyone know of scholars other than Dinstein who take the position that once a state acts in self-defence, none of its (extraterritorial) acts in the resulting armed conflict are subject to the jus ad bellum?

Any suggestions or citations from readers would be most appreciated.

Events and Announcements: October 12, 2014

by An Hertogen

Events

  • The Minerva Center for Human Rights at Tel Aviv University is pleased to invite the public to the conference “Lessons for Transitional Justice in Israel-Palestine”, to be held on November 16-17, 2014 at Tel Aviv University. The conference builds on an academic collaboration between Israeli, Palestinian and South African students and researchers who participated last summer in an intensive two-week Transitional Justice Workshop at the University of Johannesburg. At the conference, international and local scholars will share perspectives on current theories and practices that can shed light on possible transitional justice processes for Israel/Palestine, and students will present papers based on their research during the workshop. The conference program available here. For further information please contact minerva [at] tauex [dot] tau [dot] ac.il.
  • The Rethink Rebuild Society in Manchester will hold a conference on October 17Syrian Conflict in Regional Crises: Complications, Implications, and the Way ForwardThis conference represents a critical forum through which policy makers, NGOs, academics and activists can together identify and discuss the most appropriate British domestic and international policy towards Syria in light of current research and developments on the ground, specifically the emergence of IS (formerly ISIS) and the impact that this will have on British domestic and international policy, as well as action by the international community. Conference speakers include Dr. Christopher Phillips (Queen Mary, University of London), Dr. James Pattison (University of Manchester), Asim Qureshi (Research Director of CAGE Prisoners), Anas Al Abdah (Syrian National Coalition), and Raffaello Pantucci (Royal United Services Institute). The conference deliberations will focus on the following themes: The situation in Syria: misconceptions vs. realities; The emergence of IS (formerly ISIS): British jihadists, media coverage, and national policy; Where is Syria heading? Decoding the future of Syria and the region; Is British policy on the right track?; The role of the international community. Further conference information and registration can be found at conference website.

Calls for papers

  • The Human Rights Essay Award Competition sponsored by the Academy on Human Rights and Humanitarian Law seeks to stimulate the production of scholarly work in international human rights law. Awardees receive a full scholarship to attend the 2015 Program of Advanced Studies in Human Rights and Humanitarian Law in Washington D.C. This year’s topic is “Transitional Justice, International Human Rights and Humanitarian Law” and the deadline to submit is February 1, 2015. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review. For detailed guidelines about the award please visit the website or e-mail the Academy.
  • The Texas International Law Journal will be celebrating its 50th year in 2015. They are publishing a special 50th anniversary issue to commemorate the occasion. The Journal is seeking submissions from scholars in all areas of international law. These submissions can address any topic in international or comparative law, but should be focused on significant developments in international law over the last 50 years and their future implications. They invite you to submit an article or brief comment as detailed in the call for papers.

Announcements

  • Professor S.I. Strong of the University of Missouri School of Law is conducting an anonymous electronic survey as part of a research project entitled “Perceptions and Use of International Commercial Mediation and Conciliation.”  International commercial mediation and conciliation has recently made the news as a result of a decision by the United Nations Commission on International Trade Law (UNCITRAL) to give further consideration to a proposal from the U.S. Department of State regarding an international convention on international commercial mediation and conciliation.  Those who wish to participate in this survey can do so by clicking on this link or pasting this e-address into their browser <https://www.surveymonkey.com/s/JH6VHQT>.   The survey should take approximately ten minutes to complete and will remain open until 11:59 p.m. Central Daylight Time (CDT) on October 31, 2014.  Those with questions about this project can contact Professor Strong at +1-573-882-2465 or strongsi [at] missouri [dot] edu.  Questions about participants’ rights as a research subject can be directed to the University of Missouri Campus Institutional Review Board at +1-573-882-9585.
  • The Goettingen Journal of International Law, which is Germany’s first open-access international law journal, has recently released the first issue of its sixth volume. Issue 6.1 contains, inter alia, two articles on the role of developing countries in WTO law and two on the forms of responsibilities of States in international law, whereof one is by Otto Spijkers and based on one of his blog posts on this blog. The article, as well as the whole issue can be accessed at the journal’s 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.

How to Get Quirin Right When Quirin Was Wrong

by Jens David Ohlin

On Monday, the defense in the Al Bahlul case filed their reply brief. The case is important because it squarely presents the issue that was left hanging after Hamdan, i.e. whether the military commissions have jurisdiction to try inchoate conspiracy. It also raises the far deeper question of whether the jurisdiction of the military commissions is limited to offenses against the law of nations (the international law of war), or whether the military commission’s jurisdiction to try law of war offenses includes domestic offenses as well. The government has repeatedly argued in the past that historically U.S. commissions were used to try violations of the common law of war, such as conspiracy. If that argument holds water, then it does not really matter whether inchoate conspiracy is an international offense or not.

There has been a lot of commentary on this issue, and it seems to me that the heart of the dispute has to be Quirin, the German saboteurs case during World War II. In that case, the petitioners were prosecuted before a military commission after landing in the U.S., burying their uniforms, and setting afoot with orders to commit acts of sabotage against strategic installations. They were convicted by military commission and appealed to the Supreme Court.

The problem with the Quirin precedent is that the Supreme Court probably assumed that spying and sabotage were international offenses, which they are not. The proper understanding of the situation, which was correctly identified by Baxter in his famous article, was that the belligerents in Quirin were not entitled to the privilege of belligerency and therefore liable for prosecution under domestic law. But being unprivileged and subject to domestic prosecution is not the same as committing an international offense.  For what is worth, the best reading of Quirin is that the Supreme Court conflated these two situations:

By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners’ contentions. As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. Paragraphs 351 and 352 of the Rules of Land Warfare, already referred to, plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States. Modern warfare is directed at the destruction of enemy war supplies and the implements of their production and transportation quite as much as at the armed forces. Every consideration which makes the unlawful belligerent punishable is equally applicable whether his objective is the one or the other. The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.

 

The Quirin decision is notoriously difficult to read because the court is inexact with its language. It appears to me that the Court assumed that an unprivileged belligerent who commits an offense out of uniform would be guilty of an international offense — a conclusion that does not follow. In reality, spying and related offenses are not, and were not, international offenses, but where offenses against domestic law, albeit ones that are mirrored in some way in almost every nation.

Herein lies the problem: How do you correctly interpret Quirin when Quirin‘s jurisdictional theory is built on a mistake? In my view, the correct reading is that Quirin stands for the proposition that military commissions are limited to prosecuting international offenses because that is what the Supreme Court believed spying to be. The fact that spying is a domestic offense does not, and should not, transform its holding into a much broader jurisdictional theory: that military commissions have jurisdiction over domestic offenses as well. True, the Supreme Court in Quirin upheld the military commission’s jurisdiction over spying, and spying is a domestic offense, but in reality the court was upholding the jurisdiction over spying-qua-international-offense, a category that unfortunately is a null set.

The defendant’s reply brief does not take this line. Rather, the defense makes the much simpler argument that spying was indeed an international offense, and that both the government today and Baxter got this wrong.  Here is the crucial paragraph in Al Bahlul’s brief:

Regardless of this article’s scholarly merits, Quirin is the authoritative law
in this case. And regardless of whether spying’s status changed after the Second World War, Quirin had a wealth of precedent and international legal authority
behind it in 1942. Lassa Oppenheim, International Law 2:223 (1921)
(“Oppenheim”) (“persons committing acts of espionage or war treason are – as will be shown below – considered war criminals and may be punished[.]”), Supp.App. 53; Henry Halleck, International Law 1:628-29 (1908) (“Halleck”) (“The act of spying is an offence against the laws of war alone; it is no crime in time of peace”), Supp.App. 36-37; George Davis, Outlines of International Law 241 (1887) (including spying within the “Crimes and Offences against the Laws of War” and a “crime[] at International Law[.]”), Supp.App. 13-14; Winthrop, at 770 (“By the law of nations the crime of a spy is punishable with death.”), Supp.App. 89; M. de Vattel, The Law of Nations 375 (1758) (describing spying as a form of treachery), Supp.App. 5; Military Commissions, 11 Op. Att’y Gen. 297, 312 (1865)
(“Infractions of the laws of nations are not denominated crimes, but offenses. …
[Acting as] a spy is an offense against the laws of war”); Hague Convention (IV)
Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907,
36 Stat. 2277, arts. 29-31 (regulating the punishment of spies). In fact, the very
first spying statute, passed in 1776, stated that spies should “suffer death according to the law and usage of nations.” Supp.App. 49-50.

While this is a conceptually clean argument, I don’t find it persuasive. Oppenheim’s quote simply asserts that spies are criminals without labeling the offense as domestic or international; Halleck too refers to it as an offense against the laws of war without calling it an international offense, the issue at bar here. Winthrop refers to it as a rule of the law of nations, although the quote does not say whether the offense itself is international or simply whether the law of nations dictates that spies are unprivileged (and by extension liable for punishment of domestic crimes), which is a far different matter. Vattel refers to it as treachery which again doesn’t speak to the classification issue. Finally, the Hague Convention regulates the manner in which spies will be punished, which again does not logically entail the crime’s classification as an international offense. That leaves the Davis quote as the only one that directly speaks to the international nature of the offense.

So my argument is different from the government’s argument and different from the defendant’s argument, although in result I side with Bahlul. Quirin stands for the proposition that military commissions prosecute international offenses, but not because the offenses in Quirin actually were international offenses, but simply because the Supreme Court (incorrectly) assumed that to be the case. And I think this mistake (conflating international offenses with unprivileged conduct violating domestic law) is an easy one to make and one that was more common in the past than it is today. Interpretation demands that we find the deeper principle in Quirin, and that is that military commissions prosecute international offenses.

Weekly News Wrap: Monday, October 6, 2014

by An Hertogen

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

World

  • Last week, the 7th Meeting of the Parties to the Cartagena Protocol on Biosafety met in Pyeongchang. The International Institute for Sustainable Development has a summary of the proceedings here.
  • The IMF and the World Bank are holding their Annual Meetings in Washington DC this week. For civil society coverage, see here.

Guest Post: Back to Square One after Sixty Years? The Tory Attack on the European Human Rights System

by Başak Çalı

[Başak Çalı is Associate Professor of International Law at Koç University Law School, Turkey, and a member of the Executive Board of the European Society of International Law]

We, in the ‘from Reykjavik to Vladivostok’ Europe, have grown accustomed to being proud of the European Human Rights System in the last forty or so years. We teach courses on European Human Rights Law that distill over ten thousand European Court of Human Rights judgments. We start our lectures on European Human Rights Law by pointing out that Europe, despite all its flaws, has the most effective regional system. We note that the European Court of Human Rights has been cited by the US Supreme Court.  We celebrate how the effective rights doctrine has recognised and empowered Irish catholic women trying to divorce, Cypriot gay men wishing to walk safely on the streets, Kurdish mothers looking for their disappeared sons, Bulgarian rape victims, Azeri journalists, British children wrongly placed in care and more, so many more. We underline the importance of the guidance that the European Court of Human Rights has provided to domestic judges, prosecutors, law enforcement agencies and legislators on how to take into account human rights when doing their respective jobs. We also salute the fact that the European Human Rights System has brought those us of who live between Reykjavik and Vladivostok together in a recognition of our common humanity, its frailty and our desire for a common dialogue on human rights regardless of our jurisdictional differences. That is why a judge in Diyarbakır, Turkey has given some thought to Mr. McCann and the British military operation in Gibraltar in 1988. Why a judge in Scotland has asked herself what does the case of Salduz mean for her to respect fair trial rights.  We also spend long hours in classrooms, courtrooms and parliaments discussing whether the European Court of Human Rights got the ‘margin of appreciation’ right this time.

Now all that celebration and all the hard and painstakingly incremental gains of the European Human Rights System, a system based on solidarity to reach the common purpose of the promotion of human rights of all, is under serious threat. Unlike the debates that have ensued in the last ten years, the danger is not the Court’s famed gigantic case-load (as has been captured in the cliche of the ‘victim of its own success’) or the slow implementation of its judgments by some of the worst offenders. One political group in one country is out to shake the very foundations of the European Human Rights System.
(more…)

Events and Announcements: October 5, 2014

by An Hertogen

Events

  • International Criminal Court Prosecutor Fatou Bensouda will keynote “Children & International Justice,” a conference to be held on Tuesday, October 28, 2014, at the University of Georgia School of Law in Athens, home institution of the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, Professor Diane Marie Amann. Taking part will be experts from academia and the practice; from UNICEF and the Office of the Special Representative to the U.N. Secretary-General for Children & Armed Conflict; and from NGOs like Human Rights Watch, the International Center for Transitional Justice, the International Committee of the Red Cross, No Peace Without Justice, Protect Education in Insecurity & Conflict, Save the Children, and The Carter Center. Papers will be published in the Georgia Journal of International & Comparative Law. Additional sponsors include the Dean Rusk Center for International Law & Policy, the Georgia Law Project on Armed Conflict & Children, the African Studies Institute of the University of Georgia, the Planethood Foundation, and the American Society of International Law-Southeast. Details and registration can be found here.
  • On Monday October 20, 2014, the University of Luxembourg will host a symposium, jointly organised with the UNHCR, on the protection of persons fleeing situations of armed violence. The event will consider the issue of assessing claims for international protection for persons fleeing armed conflict or other situations of violence: using Article 2A of the 1951 Geneva Convention or Article 15 of the EU Qualification Directive? Particular attention will be paid to the new UNHCR guidelines on the subject. Participants will include Pascale Moreau (UNHCR), Advocate General Eleanor Sharpston (CJEU), Judge Lars Bay Larsson (ECJ), Judge Ledi Bianku (ECHR), Alice Edwards (UNHCR), Prof. James Sweeney (Lancaster University), Blanche Tax (UNHCR), Serge Bodart (ULB), Prof. Matthew Happold (University of Luxembourg), and Philippa Candler (UNHCR). Further details of the programme can be found here. The event will take place in English and French with simultaneous translation. Attendance at the symposium is free but registration is required and can be done online here.
  • You are invited to the INTRAlaw opening seminar to celebrate the establishment of the research centre INTRAlaw (International and Transnational Tendencies in Law) within the Department of Law at Aarhus University. The centre will provide the framework for coordinating the research activities of a number of senior staff members at the Department of Law in 2014-2018. The formal opening of INTRAlaw is accompanied by the inauguration lecture of Professor Edward Canuel who has been appointed honorary professor of law at Aarhus University. The seminar takes place on October 24, 2014, at Aarhus University Conference Centre – Fredrik Nielsens vej 2-4, 8000 Aarhus C, Denmark. The deadline for registration is October 17, 2014. To register, please send an email to Tinna Meyer. The full programme of the seminar can be found here.

Calls for papers

  • The Utrecht Journal of International and European Law has extended the deadline for its call for papers on ‘Privacy under International and European Law’ to November 14, 2014. 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.
  • From April 8-11, 2015, the American Society of International Law will convene its 109th Annual Meeting. The aim of the 2015 Annual Meeting is to promote a rigorous discussion on the question of how international law is “adapting to a rapidly changing world.” Next year, as in the past, the Planning Committee for the Annual Meeting would like to include at least one “New Voices” session that will provide a platform for junior scholars and practitioners to present their works-in-progress. ASIL invites submissions from non-tenured scholars and junior practitioners on any topic of international law. Any authors who submitted a paper abstract in the first call for papers and session proposals do not need to submit again; those abstracts remain under consideration. Abstracts should be well developed and reflect advanced progress on a paper that will be presented at the Meeting.  Final papers will be due by March 30, 2015. Send your abstract to asilannualmeeting [at] asil [dot] org by no later than Thursday, October 30, 2014, with the subject line “New Voices Proposal.”  Please send the abstract as a Microsoft Word attachment, including your name and contact information (email address & affiliation).  Abstracts should be no longer than 1000 words.  Selected authors will be notified by the end of November. Please direct any questions to the co-chairs of the ASIL New Professionals Interest Group at asilnpig [at] gmail [dot] com.
  • A conference on The European Union and the Arctic will bring together academics and practitioners from relevant disciplines such as international law, international relations, political science and marine biology, NGOs, representatives from EU institutions and international organizations to discuss the EU’s potential contribution to enhance Arctic governance. A roadmap for increasing the effectiveness of the EU’s action in the Arctic will be drawn at the end of the conference. This conference is timely as the Council of the European Union recently (Council conclusions on developing a European Union Policy towards the Arctic Region, May 24, 2014) requested the European Commission and the High Representative to present proposals for the further development of an integrated and coherent Arctic Policy by December 2015. Abstracts of no more than 400 words should be emailed to Dr. Nengye Liu (n [dot] x [dot] liu [at] dundee [dot] ac [dot] uk) by January 15 , 2015. All abstracts will be peer-reviewed. Selected speakers will be notified by January 31, 2015. More information is here.

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.

Weekend Roundup: September 27- October 3, 2014

by An Hertogen

This week on Opinio Juris, the debate on the AUMF continued with Kevin pointing out the lack of evidence on Khorasan’s existence and the denuding of the concept of self-defence, and Jens discussing how ground troops will be necessary in the battle of ISIS, which requires a better legal foundation for the operation than the AUMF. On a comparative and lighter note, Kristen recommended Jon Stewart’s Daily Show piece on the UK’s debate on the authorization of air strikes against ISIL. In a guest post, Myriam Feinberg reported back from a recent workshop on the future of the 2001 AUMF.

In other guest posts, Abel Knottnerus updates us on recent events in the Kenyatta trial at the ICC, while Alvin Cheung established the international law case for democracy in Hong Kong.

Julian asked whether a US Court can hold another state in contempt under international law, and followed up with further thoughts on the matter. He also discussed how sovereigntist arguments against investor-state dispute resolution are now appearing on both sides of the ideological spectrum in the US.

Finally, Jens analysed the jurisdictional quagmire in the Al Nashiri-case before the Guantanamo military commission

As for our usual features, I wrapped up the international news headlines and listed events and announcements.

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

Further Thoughts: It is Indeed Legal for a U.S. Court Hold Argentina in Contempt

by Julian Ku

I am fascinated by the ongoing Argentina debt litigation saga (and not just because it looks more and more like a train wreck), but because it is forcing U.S. courts to burrow into even fuzzier nooks and crannies of the Foreign Sovereign Immunities Act to figure out what exactly US litigants can do when suing an intransigent foreign sovereign like Argentina.  I promised I would revisit the question of whether the U.S. judge’s contempt order against Argentina on Monday was legal, and here is my further (although still somewhat brief) analysis.

1) It is legal and consistent with U.S. domestic law for a U.S. court to issue contempt sanctions against a foreign sovereign.  

The most recent authority for this proposition is the quite recent 2011 opinion from the U.S. Court of Appeals for the D.C. Circuit, F.G. Hemisphere Associates v. Congo.   In that case, the D.C. Circuit rejected the argument by Congo (and the U.S. Government) that contempt sanctions due to Congo’s refusal to comply with discovery orders would violate the FSIA.  Following the U.S. Court of Appeals for the Seventh Circuit in Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744 (7th Cir.2007), the Court held that nothing in the text or the legislative history of the FSIA suggested that there was any limitation on the inherent judicial power to issue contempt sanctions. It also rejected contrary precedent from the U.S. Court of Appeals from the Fifth Circuit in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006).

I think the DC and Seventh Circuits are right that nothing in the text or the legislative history of the FSIA bars a judicial contempt order against a sovereign.

2. There is some authority for the proposition that judicial contempt orders against foreign sovereigns are not accepted under international law, but there is reason to question whether there is international consensus supporting this authority.

Argentina can, and did, rightly point to Article 24 of the Convention on Jurisdictional Immunities of States and their Property as authority against the legality of contempt sanctions against sovereigns.

Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.

I think that the language of this provision seems to pretty clearly cover the situation in the Argentina debt case.  But I am less sure that Argentina is correct to call Article 24 of the Convention a rule of customary international law.

U.S. briefs citing Article 24 have been careful to call this rule an “international norm or practice” rather than a rule of international law.  There are good reasons to be circumspect on this point. After all, the Convention on Jurisdictional Immunities has NOT come into force, and has NOT even been signed by either Argentina or the United States, and has only been ratified by 14 other countries.  Moreover, the particular rule in Article 24 banning all court contempt-like orders is much broader than the domestic laws of states like the U.S. (see above) and even those agreed to by European states in the European Convention on State Immunity.  Article 17 of the European Convention is focused only on contempt orders for failure to produce documents, not all contempt orders for any act by the foreign sovereign.

So in conclusion, I am very confident that U.S. domestic law does NOT preclude a contempt order of any kind against a foreign sovereign.  I am somewhat confident that there is no clear consensus under international law that all contempt orders (even those unrelated to discovery) are prohibited, although I do think Argentina has a stronger case on this front.  However, in U.S. law, a rule of customary international law cannot override a federal statute, especially when the international acceptance of that rule remains uncertain.

As a practical matter, I do wonder if this whole contempt kerfuffle is just symbolic. The contempt order adds to Argentina’s obligations to pay, but it doesn’t really make it any easier for the creditors to collect since Argentina’s non-commercial assets in the U.S. remains immune from collection. While Argentina’s government may be outraged, this contempt order doesn’t really change the overall dynamic of this case, which remains a standoff that neither side is winning.