Recent Posts

Expanding the UN Ombudsperson’s Mandate & Better Cooperation Between the ICC and Sanctions Regimes

by Kristen Boon

The UN Ombudsperson’s office currently has jurisdiction over the 1267 sanctions regime, but the discrepancy between the due process afforded to individuals affected by that regime as opposed to other regimes has long been noted: individuals listed under the various sanctions regimes applicable to situations in Africa, and the Weapons of Mass Destruction regimes applicable the situations in Iran and North Korea, only have access to a UN focal point to request delisting. The UN focal point, however, has fewer powers and does not operate under the same due process guidelines as the Ombudsperson.

This issue was debated last week in the Security Council during an open meeting on Security Council methods.    According to the UN Press who reported on the day long meeting, Kimberly Prost, the UN Ombudsperson, noted that in her experience a fair process was essential to the implementation of sanctions, and it connected with a possible reduction in legal challenges to the application of sanctions at regional and domestic levels.  For analysis of the reasons the UN Ombudsperson herself and certain Member States support extending the Ombudsperson’s mandate, see Maya Lester’s blog here.   General background on the Working Methods debate is available here.

At the same session, states also discussed overlap between sanctions regimes and the ICC, and ways to improve cooperation.  For background on the main issues, see my blog here.

There is little question that an expansion of the Ombudsperson’s mandate at least to more sanctions regimes, and better cooperation between criminal tribunals and the UN Sanctions regimes will improve the effectiveness of UN sanctions.  Moreover, they complement the UN High Level Review of Sanctions which is coming to an end, in which a parallel effort to assess and improve sanctions regimes has taken place.

 

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.

 

Guest Post: The International Law Case for Democracy in Hong Kong

by Alvin Y.H. Cheung

[Alvin Y.H. Cheung is a Visiting Scholar at the US-Asia Law Institute at NYU School of Law.]

After two years of increasingly acrimonious debate over Hong Kong’s electoral reforms for 2017, the city’s pro-democracy movement has finally attracted global concern.  A consistent theme of international responses has been that Hong Kong’s democratisation should occur in accordance with the Basic Law, the city’s quasi-constitution.  The White House’s official response to a petition supporting democracy in Hong Kong was that it supported universal suffrage in Hong Kong “in accordance with the Basic Law.”  Similarly, Richard Graham MP, who heads the All Party Parliamentary Group on China, expressed the hope that further consultations would ensure a satisfactory choice that remained “within China’s Basic Law” (a misnomer that uncomfortably emphasised where the veto power over Hong Kong’s electoral reforms lay).  The implication of these statements is that the debate over how Hong Kong should choose its own leader is purely a municipal law matter.  UN Secretary-General Ban Ki-moon made that point even more forcefully when his spokesperson stated that the Hong Kong protests were “a domestic matter.”  These accounts, framed purely in domestic law terms, are misleading. The 1984 Sino-British Joint Declaration on the Question of Hong Kong (Joint Declaration) and the International Covenant on Civil and Political Rights (ICCPR) – properly interpreted – both require that the Hong Kong electorate have a genuine choice in its leader.

Chief Executive Elections in Hong Kong and the National People’s Congress Standing Committee (NPCSC) Decision of August 31, 2014 (2014 Decision)

Hong Kong’s Chief Executive is currently chosen by a 1,200-strong Election Committee, the composition of which is carefully designed to favour pro-business and pro-Beijing interests.  The “race” in which Leung himself was selected, although more competitive than previous “elections,” was heavily influenced by the Beijing Government and its representatives.  Although Article 45 of the Basic Law provided that the “ultimate aim” was for Hong Kong to elect its Chief Executive by universal suffrage, the deadline for universal suffrage has been repeatedly delayed by the NPCSC, which retains the power to interpret the Basic Law and to make decisions about the necessity of electoral reform.  The 2014 Decision ostensibly laid down the framework for universal suffrage in 2017, after months of consultation by the Hong Kong Government.  Instead, it provided the flashpoint for the student protests that in turn triggered the Umbrella Revolution. Under the 2014 Decision:

1)      The NPCSC confirmed that the Chief Executive owed responsibilities both to the Hong Kong Special Administrative Region and to the Beijing Government;
2)      As a result, any Chief Executive would be required to “love the country and love Hong Kong” – a phrase that, in practice, means that pro-democracy politicians will be barred from candidacy;
3)      Only 2 or 3 candidates would be permitted to run;
4)      Candidates would be chosen by a 1,200-strong Nominating Committee; and
5)      Support from at least half of the nominators would be required for candidacy.

The upshot of the 2014 Decision, and its various restrictions on nomination, is to ensure that only persons who Beijing deems politically palatable can run.  Lawrence Lessig aptly described the framework of the 2014 Decision as “Tweedism updated.”

The Joint Declaration

On its face, Article 3(4) of the Joint Declaration permits Hong Kong’s Chief Executive to be appointed after either elections, or consultations.  It contains – as Hong Kong’s current Chief Executive CY Leung wrote in the Financial Times – no specific prescriptions regarding the election or consultation process.  However, such an interpretation ignores basic principles of treaty interpretation.  The requirements under Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) – to which both China and the UK are parties – govern the interpretation of the Joint Declaration, yet have been routinely ignored by the Hong Kong and Beijing Governments. I argue that the Article 31(1) factors point towards an interpretation of the Joint Declaration that, contrary to Beijing’s assertions, imposes substantive requirements on how Hong Kong’s Chief Executive can be elected.

First, any interpretation of “elections” or “consultation” that permits a purely formal process in which the Hong Kong electorate “elects” a candidate pre-ordained by the Nominating Committee strips such terms of any reasonable meaning.  Second, the Joint Declaration was intended to guarantee that Hong Kong enjoyed a “high degree of autonomy,” except in foreign affairs and defence.  Giving the Hong Kong public a genuine choice in electing its Chief Executive can only be consistent with that purpose, without necessarily undermining Chinese sovereignty.  Third, to the extent that the Basic Law is acknowledged by both China and the UK to be subsequent practice in applying the Joint Declaration, there is agreement that elections should be by “universal suffrage.”  Fourth – and most importantly – the Joint Declaration also declares, in Chapter XIII of Annex I, that the provisions of the ICCPR applicable in Hong Kong shall remain in force after 1997.

The Applicability of ICCPR Article 25(b)

Under ICCPR Article 25(b), citizens enjoy the right “[to] vote and be elected at genuine periodic elections which shall be by universal and equal suffrage…” without unreasonable restrictions.  However, the applicability of Article 25(b) to Hong Kong has long been contentious.  When the UK acceded to the ICCPR on behalf of Hong Kong, it entered a reservation to Article 25(b).  Nonetheless, the Human Rights Committee has long taken the view that the reservation ceased to apply to elections for Hong Kong’s Legislative Council once an elected legislature was established.(Human Rights Comm., Concluding Observations of the Human Rights Comm (H.K.): U.K., U.N. Doc. CCPR/C/79/Add.57 (1995), ¶ 19.) The same reasoning would apply with equal force to Chief Executive elections; once the office of Chief Executive is filled through elections, such elections must comply with Article 25(b).  Curiously, the Committee’s Concluding Observations of 2013 in respect of Hong Kong appeared to accept that the reservation remained in force, without citing its previous Concluding Observations or explaining its departure from its previous position. (Human Rights Comm., Concluding Observations of the Human Rights Comm.: H.K., China, U.N. Doc. CCPR C/CHN-HKG/CO/3 (2013), ¶ 6.)

If one accepts that ICCPR Article 25(b) applies to Hong Kong’s Chief Executive elections, limits on the right to stand for election may not be subjected to unreasonable restrictions.  General Comment 25 adds that limits on the right to stand for election may only be based on “objective and reasonable criteria.”  The Human Rights Committee has consistently rejected political affiliation as an “objective and reasonable” criterion, (Chiiko Bwalya v Zambia, Commc’n No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993); Lukyanchik v Belarus, Commc’n No. 1391/05, U.N. Doc. CCPR/C/97/D/1392/2005; Sudalenko v Belarus, Commc’n No. 1354/05, U.N. Doc. CCPR/C/100/D/1354/2005.) including in a series of cases regarding arbitrary denial of registration to electoral candidates. (Lukyanchik and Sudalenko)  Indeed, by Beijing’s own admission, the pre-selection of candidates for political pliancy is not a criterion that could be legally defined.

Counter-Argument: The Source of Authority for the Basic Law

Shigong Qiang of Peking University has argued that Hong Kong’s “high level of autonomy” flows solely from authority from the Central Government, and that the Basic Law itself derives its authority solely from the PRC Constitution. (Shigong Qiang, 國際人權公約在香港:被誤讀的國際條約’ [The ICCPR in Hong Kong: The Misinterpreted International Treaty] Mingpao (HK, 25 Aug 2014).)  Yet this view does not appear to be universally shared even among Mainland academics.  The late Xiao Weiyun, one of the Mainland’s pre-eminent authorities on the Basic Law, conceded that the obligation to enact the Basic Law flowed from the Joint Declaration. (Xiao Weiyun, One Country Two Systems: An Account of the Drafting of the Basic Law 13(2001).  On Xiao see Jimmy Cheung, Basic Law ‘Guardian’ Dies at 78, S. China Morning Post (H.K.), Jul. 16, 2004.)  Nor does the text of the Basic Law support Qiang’s argument; the Preamble to the Basic Law states that it was enacted “to ensure the implementation of the basic policies of the [PRC] regarding Hong Kong.”  The “basic policies” referred to could only be those set out in Article 3 of, and Annex I to, the Joint Declaration.

Implications for the Electoral Reform Debate

If the Joint Declaration and ICCPR demand genuine universal suffrage in Hong Kong, then China has not merely a domestic law obligation to democratise Hong Kong, but an international law obligation.  This in turn empowers the UK, and potentially other parties to the ICCPR, to ensure China fulfils its obligations.  Writing in the Financial Times, Hong Kong’s last colonial governor Lord Patten of Barnes sought to remind Westminster that the United Kingdom had not merely a political and moral obligation to monitor developments in Hong Kong, but a legal obligation.  In light of ongoing developments, there is a compelling legal case for Whitehall to speak up in Hong Kong’s defence. Yet there are few signs that the United Kingdom’s long-standing policy of neglect will change.  In the wake of the 2014 Decision, the Foreign Office stated merely that the 2014 Decision would “disappoint” Hong Kong’s democrats, without any reference to the Joint Declaration.  Although Prime Minister David Cameron has now stated that he is “deeply concerned” about events in Hong Kong, it remains to be seen whether this will translate into a change in Foreign Office policy.

The Allure of Sovereigntism: U.S. Progressives and Libertarians Unite to Oppose Investor-State Arbitration

by Julian Ku

For decades, investor-state arbitration has enjoyed broad support in the U.S. (among those elites who know and care about such things).  While there has been some backlash against investor-state in developed countries such as Australia arising out of controversial cases brought against it, the U.S. has remained pretty solidly in favor of it.  But there are signs that the opposition to investor-state arbitration has sprouted among U.S. elites more influential than more traditional critics like Ralph Nader and Pat Buchanan.  And, interestingly, voices from both sides of the ideological spectrum are invoking “sovereigntist” arguments to bolster their positions.

First, Harold Meyerson of the Washington Post started the ball rolling with this post calling on center-left and progressives to oppose the inclusion of investor-state dispute settlement (or ISDS) in the proposed Transatlantic Free Trade Agreement.  Predictably, he derides ISDS as pro-corporate giveaways.  But he also rings the sovereigntist bell in favor of  protecting the jurisdiction of domestic courts against extra-jurisdictional tribunals (e.g. international arbitral tribunals).

What is more surprising is that Daniel Ikenson of the influential libertarian (“liberal” for you Europeans out there) thinktank the Cato Institute has joined the fray with a manifesto for why libertarians should also oppose ISDS (at least in trade agreements).  Some of his arguments are tactical (they undermine political support for trade agreements and aren’t all that helpful anyway), but some are also sovereigntist as well.

Though I firmly believe the U.S. economy is racked with superfluous and otherwise unnecessary regulations, I do believe that a successful foreign challenge of U.S. laws, regulations, or actions in a third-party arbitration tribunal (none has occurred, yet) would subvert accountability, democracy, and the rule of law.” 

It is certainly unusual to hear a libertarian analyst decry a legal mechanism that would give businesses a new avenue to challenge unfair laws and regulations.  But the sovereigntist bell is alluring.  Because Ikenson’s position seems to go somewhat against his policy preferences, I find Ikenson’s opposition to ISDS a little more compelling than Meyerson’s.

It is worth noting that some of the same arguments against investor-state can also be raised against other proposed forms of international adjudication (e.g. the International Climate Change Court, the International Anti-Corruption Court, international human rights courts, etc).  Similar arguments, in fact, are being used by the Conservative Party in the UK to withdraw or limit the role of the European Court of Human Rights over UK law.   I wonder whether progressives like Meyerson will be so excited about protecting domestic laws and courts from international oversight in those situations.  I somehow doubt it.

How to Solve the MV Limburg Mess: A Brief Exegesis on ‘Jurisdictional Facts’

by Jens David Ohlin

The Al Nashiri case before the Guantanamo military commission is currently stuck in a quagmire over the bombing of the oil tanker MV Limburg on Oct. 6, 2002, which Al Nashiri is alleged to be complicit in. Before trial, the defendant, Al Nashiri, moved to dismiss the charges related to the MV Limburg (which is just one of many charges in the case) on the grounds that the government does not have jurisdiction over the MV Limburg bombing since it was not part of the armed conflict between the United States and al-Qaeda. The MV Limburg was a French vessel (not American).

Instead of interpreting the motion as dealing with Congress’ jurisdiction to prescribe (as the defense appeared to suggest), the judge interpreted the motion as one attacking the jurisdiction of the military commission to hear the case because the attack was not connected to the hostilities between the U.S. and al-Qaeda. Since the government had not presented evidence that the attack was connected to those hostilities, the judge eventually dismissed the charges.

The U.S. government is appealing the dismissal of the MV Limburg charges, and it filed its appeal brief on September 29, 2014 to the U.S. Court of Military Commission Review. The government’s position is that the existence of hostilities (or a connection between the attack and the hostilities) is a question that goes to the merits, not jurisdiction, and therefore the government should be permitted to proceed to trial where it will demonstrate this connection. The connection between the hostilities and the attack is a merits question because the existence of hostilities is a predicate element of any war crime.  No war, no war crime.

So it is clearly a question that goes to the merits that should be decided at trial.  On this point the government is clearly correct. However, Al Nashiri is also correct that the same fact — the connection to the hostilities — is an essential ingredient of the court’s jurisdiction under the law of war. The military commission does not, and should not, have jurisdiction over crimes unrelated or unconnected to the underlying military conflict. So it is a jurisdictional question too. It is both at the same time. What the court really needs to figure out is how to treat a fact that is both jurisdictional and an element of the offense (merits) at the same time. Should it be proved at trial or does the party need to show the court, prior to trial, that it has jurisdiction over the case?

As should be clear by now, this basic problem is not unique to a military commission. It happens any time that the same factual element goes to jurisdiction and merits in the very same case. A court confronted with the twin nature of such a fact needs to determine whether to treat it as it does other jurisdictional elements (determine prior to trial) or as a merits question (determine at the conclusion of the trial).

The very best article on this subject, by Kevin Clermont, is simply titled Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006). As Clermont convincingly explains, judges faced with this quandary should adopt a bifurcated approach with two standards of decision, one for the jurisdictional analysis and a second for the merits analysis:

All courts, then, should apply the prima facie standard of proof whenever a jurisdictional fact overlaps the merits. “Overlapping” here means that a factual finding in establishing … jurisdiction would also go toward proving the merits of the claim, with “merits” broadly meaning those issues that arise other than in determining the forum’s authority.

 

So, at the pre-trial phase, the court should require that the party asserting jurisdiction (which in Al Nashiri’s case would be the government prosecutors) should make a prima facie demonstration of the jurisdictional fact, and then at trial should be required to demonstrate the same fact under the higher standard, which in a civil case would be preponderance of the evidence or in a criminal case beyond a reasonable doubt.

Most importantly, this basic scheme applies regardless of whether one interprets Al Nashiri’s motion as going to personal jurisdiction or subject matter jurisdiction. It does not matter which one we use to classify the motion. If there is a fact that is both jurisdictional and merits, the government must demonstrate it pre-trial with a prima facie case, and then at trial under the regular standard for the merits decision.  Here is how Clermont explains the basic point:

From a morass of confused cases on a procedural point of significance, there emerges a startlingly clear rule that covers jurisdictional fact, and much more. On any factual element or legal question of forum authority, from subject-matter jurisdiction to venue whenever properly challenged, the proponent of forum authority must make the usual showing of more-likely-than-not, subject to this exception: if that element or question overlaps the merits of the claim, the proponent need provide only prima facie proof to establish the forum’s authority. Depending on the particular threshold issue’s importance, “prima facie” might mean any of the standards below the more-likely-than-not standard, namely, slightest possibility, reasonable possibility, substantial possibility, or equipoise. That lower standard will allow the judge to decide efficiently but definitively whether the forum has authority to decide the merits–doing so without entailing or foreclosing any decision on the merits, a decision to which a higher standard would apply.

Applying this basic scheme to Al Nashiri’s case, here is the correct result for the U.S. Court of Military Commission Review to consider. The government is indeed required to make a factual showing of the hostilities connection prior to trial, though it need not be burdened with demonstrating it under the standard applicable at the merits phase. Instead, the government was only required to make a prima facie showing of this jurisdictional fact. That being said, the government would be wrong if it claims that it bears no burden at all until trial — that clearly is an exaggeration. The task for the appeals court is to recognize the appropriate standard for such jurisdictional facts — the prima facie showing — and then decide if the government met that burden. If the lower judge’s assessment is correct that the government made no showing whatsoever on the hostilities question, then the appeals court should conclude that the charges were properly dismissed. If, on the other hand, the appeals court concludes that the government did make this prima facie case, and can cite to particular facts in the record that are sufficient to meet the prima facie showing, then the charges should be reinstated.

One final point. The government brief seems to assert that the government’s prima facie showing is already met because Al Nashiri never contested his status as an alien unprivileged enemy belligerent (AUEB). But this goes to personal jurisdiction, not subject matter jurisdiction. The government then goes on to use personal jurisdiction to bootstrap its way into subject matter jurisdiction under the theory that subject matter jurisdiction is automatically established once the status of the individual is established. This might be the way that it works for a court martial under the UCMJ (where the status of the individual service-member is sufficient to trigger the authority of the military court), but this conflation of personal and subject matter jurisdiction is not appropriate for military commission cases trying enemy belligerents.

Unlike domestic court martial proceedings which retain plenary authority to prosecute all UCMJ offenses against service-members, military commission cases are jurisdictionally limited to offenses arising from the conflict between the parties — the very conflict that grounds the genesis of the military commission under international law. Simply put, military commissions cannot use the existence of an armed conflict as a pretext to assert plenary authority over all criminal behavior committed by the individuals who lawfully fall under their personal jurisdiction.

Can a U.S. Judge Hold the Government of Argentina in “Contempt”?

by Julian Ku

In the latest round in the never-ending battle between Argentina and its holdout bondholders, a U.S. court has found Argentina to be in “contempt” for trying to circumvent that US court’s orders. Argentina has been outraged by such an order, arguing that a  state cannot be held in “contempt” because it is an affront to its sovereign dignity (with Argentina’s president denouncing the U.S. judge as “senile“).   Indeed, the Argentine government on Monday sent a very interesting letter to U.S. Secretary of State John Kerry setting out why it believes it cannot be subject to a “contempt” order in a domestic U.S. court.

The Argentine Republic notes that it is completely absurd for plaintiffs to argue that a local judge can hold a foreign State “in contempt”. This position can only arise from ignorance or a distorted view of the fundamental rules of international law currently in force and the peaceful coexistence of global order.

The principles on which international coexistence rests are reflected in the Charter of the United Nations. One of these principles refers to sovereign equality of all States and is expressly embodied in Article 2(1) of that Charter. This is a fundamental principle when it comes to determining what a State can or cannot do in relation to other States.

When any branch of government of a State denies “equal” status to another State, it not only manifestly violates international law but it also risks setting a precedent for the commission of similar violations of international law to its own detriment.

I think that Argentina’s argument that contempt orders and other judicial sanctions against it are violations of international law (even thought it has consented to that domestic jurisdiction) can draw some support from the statements of the U.S. government itself (which is quoted extensively in the letter).  The problem for Argentina is that the U.S. judicial system has not agreed with the U.S. government’s views on many of these questions.  So US law is no help to Argentina here (for the most part). And the U.S. government has almost no legal mechanisms to change the district court’s actions here, so the letter is largely for public consumption.

The harder question is whether (as Argentina argues) there is a generally accepted rule of international law that a court cannot hold a sovereign in contempt where that sovereign has consented to the jurisdiction of that court.  This is a tricky question and one worth thinking about further. I hope to post on that when I have had more time to digest it.

Guest Post: Kenyatta (Finally) Has to Go Back to The Hague

by Abel Knottnerus

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

The case against Kenyan President Uhuru Kenyatta has reached a critical juncture. Almost six months ago, Trial Chamber V(B) adjourned the commencement of his trial until 7 October “for the specific purpose of providing an opportunity for compliance by the Kenyan Government with outstanding cooperation requests” (para. 2). Three weeks ago, however, the Prosecution submitted that the start of Kenyatta’s trial should again be adjourned, because the Kenyan government would still not have fulfilled its cooperation requirements. In response, the Chamber decided on 19 September that it will hold two status conferences on 7 and 8 October to discuss “the status of cooperation between the Prosecution and the Kenyan government” (para. 11).

These conferences will determine the future, if any, of Kenyatta’s trial. Yet, before this ‘do-or-die’ moment, the Chamber first had to decide on another sensitive matter, namely whether Kenyatta would have to be physically present in The Hague for the second of the two status conferences. On Tuesday, the Chamber ruled, by Majority (Judge Ozaki partially dissenting), that Kenyatta indeed has to travel to The Hague. Assuming that Kenyatta will not disobey this direct order, this will be the first time that a sitting Head of State will appear before the ICC.

Kenyatta’s excusal request and the Prosecution’s response

In the initial decision announcing the status conferences, the Trial Chamber stated that “given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the status conference on 8 October” (para. 12). Despite this clear language, Kenyatta’s defence requested the Chamber last Thursday to excuse Kenyatta from attending. Based on Rule 134quater of the Rules of Procedure and Evidence the defence argued that Kenyatta has to fulfil extraordinary public duties at the highest national level on the scheduled date, because he is due to attend the Northern Corridor Infrastructure Summit in Kampala, Uganda. The defence added that this meeting was arranged prior to the Chamber’s decision to convene the status conference and that Kenyatta would therefore also not be able to attend by video-link.

In the alternative, the defence requested to reschedule the status conference and that on this new date Kenyatta would be allowed to be present through video-link in accordance with Rule 134bis. Instead of travelling to The Hague, a ‘skype session’ would enable Kenyatta “to perform his extraordinary public duties as President of Kenya to the greatest extent possible while causing the least inconvenience to the Court” (para. 13).

In response to the defence’s request, the Prosecution submitted on Monday that Rules 134bis and quater are not applicable at this stage of the proceedings because Kenyatta’s trial has not yet commenced. According to the Prosecution, the Trial Chamber would have the (inherent) discretion to reschedule the status conference as well as to permit Kenyatta to attend by video-link. While not opposing the former option, the Prosecution as well as the Legal Representative for Victims (LRV) argued that the defence had given no clear reasons for attendance by video-link on a later date, other than the distance that the accused would have to travel and his status as Head of State.

The (in)applicability of Rules 134quater and bis

(more…)

To Debate or Not to Debate in a Time of War

by Kristen Boon

John Stewart’s Sept. 29 clip “Cameron – What are you Doing?” is a must see on comparative constitutional law.   Stewart contrasts the fulsome and spirited debate in the UK on whether to authorize airstrikes against ISIL, with the absence of congressional action in the US.   Well worth watching. And quite funny.   Here is the show.