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Anchugov and Gladkov is not Enforceable: the Russian Constitutional Court Opines in its First ECtHR Implementation Case

by Marina Aksenova

[Marina Aksenova is a Post-doc at the Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. You can reach her at: Marina [dot] aksenova [at] jur [dot] ku [dot] dk.]

On 19 April 2016, the Constitutional Court of Russia (CC) issued its pilot decision testing newly acquired powers to refuse the implementation of the rulings of the European Court of Human Rights (ECtHR) contradicting Russia’s Constitution. The case under review of the CC was Anchugov and Gladkov v Russia. In this case, the ECtHR previously found that automatic and indiscriminate ban on Russian prisoners’ voting rights was disproportionate and thus in violation of Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights (ECHR). Ever since it was issued in 2013, the Russian authorities viewed this ruling as problematic because it directly contradicts Article 32(3) of the Russian Constitution, which reads as follows:

Deprived of the right to elect and be elected shall be citizens recognized by court as legally unfit, as well as citizens kept in places of confinement by a court sentence.

The CC has been enjoying powers to refuse the implementation of contested decisions of the ECtHR for only nine month, and, more precisely, since 14 July 2015 when it issued ground breaking decision to reaffirm the primacy of the Russian Constitution over the conflicting rulings of the ECtHR and any other international bodies tasked with human rights protection (some aspects of this decision are discussed here and in the second half of this post). On 14 December 2015, the legislature, in line with the position of the CC, amended the law regulating the operation of the Russian Constitutional Court, granting the President and the Government the right to appeal to the Court in instances when they suspect that executing the ruling of the ECtHR may contradict the Constitution. Following the introduction of this new internal review mechanism, the Ministry of Justice swiftly filed an appeal to the CC asking it to rule on the possibility of implementing the ECtHR judgment in Anchugov and Gladkov.

The CC held on 19 April 2016 that the ECtHR judgment in Anchugov and Gladkov could not be executed. The CC adopted, however, a diplomatic approach by not ruling out the introduction of future penalties involving non-custodial sentences that limit the freedom but do not impede on the voting rights. The CC nonetheless insisted on its previous interpretation of Article 32(3) as sufficiently discriminate to satisfy the requirements Article 3 of Protocol No. 1. The Court further stressed European pluralism in what concerns organisation of the electoral processes in different members states as well as inconsistent position of the ECtHR itself in matters concerning voting rights (the CC contrasted Hirst v UK (2005) and Scoppola v Italy (2012) judgments, pointing to a certain change of heart by the Strasbourg court).

The CC distinguished general measures and measures that benefit the applicant in making three important pronouncements:

  • Anchugov and Gladkov cannot be implemented in what concerns general measures involving repealing or changing the imperative provision of Article 32(3) of the Constitution given its supremacy within Russian legal system. The CC found it particularly troubling that the provision in question can only be changed by virtue of adopting a new Constitution;
  • Anchugov and Gladkov can be implemented in what concerns general measures ensuring fairness, differentiation and proportionality of the restrictions on voting rights. Here the CC adopted a rather questionable approach arguing that only a custodial sentence leads to the disenfranchisement of the offender concerned, which ensures sufficient differentiation because most of the first-time offenders charged with minor crimes do not get imprisoned, ergo their voting rights are intact. The ECtHR has however already dismissed this argument in Anchugov and Gladkov (para. 106) pointing to the lack of evidence that courts take into account impending disenfranchisement when deciding on the type of sanction to be imposed on the convicted person. Possibly sensing some weakness in this position, the CC made an additional promise for the future – the legislator may optimise Russian penitentiary system so as to ensure the existence of punishments limiting freedom but not involving imprisonment, thus guaranteeing voting rights to the convicted persons;
  • Finally, Anchugov and Gladkov cannot be executed in what pertains measures benefitting individual applicants because the applicants were convicted for serious offences and sentenced to fifteen years of imprisonment, automatically leading to their disenfranchisement. Moreover, restitutio integrum is simply impossible in this case for the elections that the applicants wished to participate in took place between 2000 and 2008.

14 July 2015 CC Ruling

The CC Anchugov and Gladkov ruling was made technically possible due to the adoption of Continue reading…

Cruz Advisor: Joseph McCarthy Was “Spot On”

by Kevin Jon Heller

I’ve been slowly working on a post that points out Ted “Carpet Bombing” Cruz is no less scary than Donald “Torture Everyone” Trump when it comes to foreign-policy. (Schadenfreude isn’t a strong enough word for how much I am enjoying the implosion of the Republican party under the combined weight of their insanity.) To tide you over, I will simply offer this doozy of a quote from one of Cruz’s national-security advisors, Clare Lopez, about the Red Scare:

We can go all the way back, of course, to the time of the Cold War and back to the 1920s, ‘30s, ‘40s when communists, you know, the KGB, infiltrated our government at the very highest levels. And then, like now, we were unprepared and in large measure unaware of what was going on, at least until the House Un-American Activities got rolling in the 1950s with Sen. Joseph McCarthy, who absolutely was spot-on in just about everything he said about the levels of infiltration.

Lopez works for another Cruz advisor, Frank Gaffney — a racist and Islamophobic conspiracy theorist who believes Grover “Drown Government and Poor People in the Bathtub” Norquist is an agent of the Muslim Brotherhood.

What’s the old adage about how a person is known by the company he keeps?

Why Bemba’s Conviction Was Not a “Very Good Day” for the OTP (Updated)

by Kevin Jon Heller

As readers probably know by now, the ICC convicted Jean-Pierre Bemba yesterday of various war crimes and crimes against humanity, including rape as both a war crime and crime against humanity. Commentators are praising the conviction as landmark with regard to sexual violence — against both women and men. Here, for example, is Niamh Hayes:

Today is a very good day for the Office of the Prosecutor. This afternoon, Jean Pierre Bemba Gombo was convicted of rape as a crime against humanity and a war crime, due to his failure as a military commander to prevent or punish such crimes committed by MLC troops under his effective control. This represents the first ever conviction for the crime of rape at the International Criminal Court. Although rape was charged in the cases against Germain Katanga and Mathieu Ngudjolo, and although the Trial Chamber ultimately concluded that the alleged acts of sexual violence had in fact taken place, Katanga and Ngudjolo’s individual criminal responsibility for those crimes were not proven to the satisfaction of the judges and they were both acquitted on those counts. Bemba is not only the first defendant to be convicted of rape as a war crime or crime against humanity at the ICC, he is also the first person to have been held individually responsible for violations of international criminal law committed during the 2002-2003 coup in the Central African Republic.

It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims. The Bemba case will go down in history as a vital precedent on that basis alone, but it also represents a hugely important step in the ICC’s broader efforts to provide greater accountability for sexual violence crimes. Prosecutor Bensouda today reiterated her personal and professional commitment to that goal: “[w]here some may want to draw a veil over these crimes I, as Prosecutor, must and will continue to draw a line under them.” The inclusion of further allegations of male rape in the Ntaganda case and extensive allegations of sexual violence against civilians in the Ongwen case are important and welcome developments in that regard.

I agree with Niamh that the decision is a landmark in terms of sexual violence — but I would take strong issue with the idea that Bemba’s conviction represents a “very good day” for the OTP. On the contrary, the Trial Chamber’s judgment illustrates that the OTP continues to have problems developing its cases without the judges’ help. As Niamh notes, Bemba is the first ICC defendant convicted on the basis of superior responsibility. But she fails to point out a critical fact about the trial: the OTP alleged that Bemba was responsible for the various war crimes and crimes against humanity as a superior only because the Pre-Trial Chamber told it to do so. The OTP’s original theory of the case was that Bemba was responsible for those crimes solely as an indirect co-perpetrator. The PTC, however, disagreed: because the evidence the OTP presented at the confirmation hearing indicated that Bemba was most likely responsible for the crimes as a superior, not as an indirect co-perpetrator, the PTC adjourned the hearing and requested (read: instructed) the OTP to amend the charges to include superior responsibility. The OTP did so — but it continued to insist that Bemba was primarily responsible for the charges as an indirect co-perpetrator. Here is the relevant paragraph from its Amended Document Containing the Charges:

57. Primarily, BEMBA is individually criminally responsible pursuant to Article 25(3)(a) of the Rome Statute, for the crimes against humanity and war crimes referred to in Articles 7 and 8 of the Statute, as described in this Amended DCC, which he committed jointly with Patassé through MLC troops. Alternatively 1 , BEMBA is criminally responsible by virtue of his superior-subordinate relationship with MLC troops pursuant to Article 28 (a), or in the alternative Article 28(b), of the Statute, for crimes against humanity and war crimes, as described in this Amended DCC and enumerated in Counts 1 to 8, which were committed by MLC troops under his effective command, or authority, and control as a result of his failure to exercise control properly over these forces.

The OTP should be grateful to the PTC for its “request,” because the PTC ultimately refused to confirm Bemba’s potential responsibility as an indirect co-perpetrator. Had the PTC not intervened, the case would not even have made it past the confirmation stage.

So, to summarise: The OTP had a theory of the case. The PTC told it to rethink that theory. The OTP did so — reluctantly. The PTC rejected the OTP’s preferred theory. And the TC ultimately convicted Bemba on the theory first proposed by the PTC.

Bemba’s conviction clearly represents a very good day in the struggle against sexual violence. But it hardly represents  a very good day for the OTP. On the contrary, it actually represents a rather stunning rebuke to the OTP’s ability to develop its cases without the judges’ help.

NOTE: I have updated the post in light of an email from Alex Whiting pointing out that the PTC refused to confirm indirect co-perpetration. My thanks to him for the correction.

US House of Representatives Overwhelmingly Calls for War Crimes Tribunal for Syria (with Jurisdiction to Try Americans, Apparently)

by Patrick Wall

[Patrick Wall is studying for an LL.M. in International Law at the Graduate Institute of International and Development Studies, Geneva, as the Sir Ninian Stephen Menzies Scholar in International Law.]

Last Monday, the US House of Representatives overwhelmingly passed—by 392 votes to 3—a resolution ‘[e]xpressing the sense of the Congress condemning the gross violations of international law amounting to war crimes and crimes against humanity by the Government of Syria, its allies, and other parties to the conflict in Syria, and asking the President to direct his Ambassador at the United Nations to promote the establishment of a war crimes tribunal where these crimes could be addressed’. Information on the resolution can be found here, and the full text as passed can be found here.

The resolution was sponsored by Rep Chris Smith, a Republican of New Jersey, and was co-sponsored by one Democrat and three other Republicans. This is something of a personal victory for Smith, who has been advocating for a war crimes tribunal for Syria since at least September 2013 (this Google search links to all articles on his website concerning his advocacy on the issue).

After recalling some of the horrendous violations of international law that have doubtless occurred in Syria—and specifically pointing the finger at the Government of Syria, Bashar al-Assad, Russia, Iran, ‘Iran’s terrorist proxies including Hezbollah’, the Islamic State and the al-Nusra Front—the House:

  • strongly condemns the continued use of unlawful and indiscriminate violence against civilian populations by the Government of Syria, its allies, and other parties to the conflict;
  • urges the United States and its partners to continue to demand and work toward the cessation of attacks on Syrian civilians by the Government of Syria, its allies, and other parties to the conflict;
  • urges the Administration to establish additional mechanisms for the protection of civilians and to ensure consistent and equitable access to humanitarian aid for vulnerable populations;
  • urges the United States to continue its support for efforts to collect and analyze documentation related to ongoing violations of human rights in Syria, and to prioritize the collection of evidence that can be used to support future prosecutions for war crimes and crimes against humanity committed by the Government of Syria, its allies, and other parties to the conflict;
  • urges the President to direct the United States representative to the United Nations to use the voice and vote of the United States to immediately promote the establishment of a Syrian war crimes tribunal, a regional or international hybrid court to prosecute the perpetrators of grave crimes committed by the Government of Syria, its allies, and other parties to the conflict; and
  • urges other nations to apprehend and deliver into the custody of such a Syrian war crimes tribunal persons indicted for war crimes, crimes against humanity, or genocide in Syria, and to provide information pertaining to such crimes to the tribunal.

During his speech in the House urging lawmakers to vote in favour of the resolution, Smith pleaded that ‘the atrocities committed against Syria’s population demand accountability and demand justice’. At a press conference after the vote, he argued that the tribunal would need to be ‘aggressive, transparent, [and] go after all sides’.

There are a few notable elements about the development.

The first is the position of the International Criminal Court in all of this. The preamble to the resolution notes that ‘Syria is not a state-party to the Rome Statute and is not a member of the International Criminal Court’. Smith had the following to say during the post-vote press conference:

An ad hoc or regional court has significant advantages over the International Criminal Court (ICC) as a venue for justice. For starters, neither Syria nor the United States is a member of the ICC, although mechanisms exist to push prosecutions there. The ICC has operated since 2002 but boasts only two convictions. By way of contrast, the Yugoslavia court convicted 80 people; Rwanda, 61; and Sierra Leone, 9. Moreover, a singularly focused Syrian tribunal that provides Syrians with a degree of ownership could significantly enhance its effectiveness.

Although there are certainly no suggestions that Smith is in favour of the United States becoming a member of the ICC, his dispassionate analysis of the possible venues for international criminal trials does stand in stark contrast to the Congress’ well-known hostility towards the ICC.

The second item of note is Smith’s optimism about the possibility of the Security Council actually voting to establish an international criminal tribunal for Syria. Pointing to the fact that Russia did not stand in the way of the creation of the ICTY—despite being a supporter of Slobodan Milošević—Smith argues that a ‘serious and sustained push by the United States and other interested parties’ would result in the passage of a Security Council Resolution creating the tribunal.

This would seem to be unrealistically optimistic. Although there were suggestions during the Balkan conflict that Russia would deploy troops in support of Serbia, this never occurred, so there was never any possibility that the ICTY would investigate or prosecute Russian personnel. In Syria, Russia has become an active participant. Indeed, the very preamble to Rep Smith’s resolution alleges that ‘the Russian Federation…has committed its own violations of international law by leading deliberate bombing campaigns on civilian targets including bakeries, hospitals, markets, and schools’. Smith has not, to my knowledge, explained why Russia wouldn’t veto a resolution that would expose its own troops to prosecution.

Which brings us to the most curious part of the whole saga: the fact that American troops and those of her allies would also fall within the jurisdiction of the proposed tribunal. The proposed tribunal’s rationae personae is said to be ‘the Government of Syria, its allies, and other parties to the conflict’ and Smith said in the post-vote press conference that ‘no one on any side…would be precluded from prosecution’; it would ‘go after all sides’.

As we know, the United States, the United Kingdom and France have conducted strikes against Islamic State targets in Syria and are, thus, ‘parties to the conflict’. Given that the Congress has previously authorised the use of military force to liberate any citizen of the United States or an allied country held by the ICC, it is at least passing strange that the House has so overwhelmingly urged the creation of a new international criminal tribunal that would be empowered to prosecute, for example, an American pilot accused of bombing civilian targets within Syria.

Comment on this possibility has been sought from Rep Smith, but a response has not yet been forthcoming.

Responding to Steve Vladeck and Charlie Savage on Garland

by Deborah Pearlstein

Thanks to Steve Vladeck for the thoughtful post over at Just Security about his take on Garland’s record on Guantanamo cases and related matters. Steve, like Charlie Savage in the Times, is in one sense far more critical of Garland than I. I say “in one sense” because, before jumping back into the details here, it seems apparent we’re all applying somewhat different metrics here in assessing that record, some I fear more problematic than others. (more…)

Weekly News Wrap: Monday, March 21, 2016

by Jessica Dorsey

Here’s 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

Events and Announcements: March 20, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the Seminar “Public Health and Human Rights – Current Challenges and Possible Solutions” (19 May 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 25 April 2016, early bird 30 March 2016 with 10% discount. The issue of global health governance, which deals with the question how to regulate efficiently a panoply of actors in global health, such as international organisations, States, NGOs (including philanthropic foundations), private-public partnerships, pharmaceutical companies, individuals and others. The seminar on public health and human rights will host some of the world’s most renowned experts on health related human rights. Their presentations will be organized in three panels. Presentations in each panel will be followed by an interactive discussion with other participants. Target: the seminar is open to all the people with a strong interest in the study of the link between Human Rights and Public Health. It is especially conceived for professionals who work in fields where this link is particularly strong: employees of national Health Ministries in the European Union and beyond, representatives of Pharmaceutical Companies, functionaries and officials of International Organizations and members of NGOs working in the public health sector. It is also addressed to professional doctors having an interest in the Human Rights policies about public health and to scholars with a background in public health, philosophy and ethics, medical law and social sciences. Eligibility: lectures are conceived for participants with a general interest in Human Rights and some basic knowledge in Public Health. Seminar Language: all lectures will be held in English. Enrolment fee for the seminar amounts to € 260,00 with no accommodation, or € 360,00 with accommodation for 1night (night 18 May – departures 19 May 2016). If you choose the option with no accommodation, the enrolment fee will include: tuition fee and lunch on seminar day. If you choose the option with accommodation, the enrolment fee will include: tuition fee, lunch on seminar day and accommodation in a single room in a hotel on the Lido for 1 night. Interested candidates should register by compiling the online application form. For any query about the seminar please contact us at training [dot] publichealth [at] eiuc [dot] org
  • The University of Utrecht is offering two summer programs of interest to Opinio Juris readers. If you’d like to learn more about the regulation of the various uses of freshwater resources, then the Summer School on International, European and Domestic Water Law might be of interest to you. This course provides you with an introduction to selected issues of international, regional (EU) and domestic (comparative) water law. These issues include the organizational aspects of water management, water safety and flood protection, water quality and combating pollution, protection of drinking water resources and the sustainable use of water. If you are looking for a general introduction to the most important tenets of public international law, then we invite you to join the Summer School on Public International Law. This course will look at the role of international law in responding to today’s global challenges, such as the Russian activities in Ukraine, the legal aftermath of Srebrenica, the ongoing conflict in Syria and Iraq, and climate change negotiations. These issues will be used to examine the nature and function of international law, its sources and subjects, and questions of jurisdiction and immunities, state responsibility and the responsibility of international organizations. For more information, please contact the course leaders: Professor Marleen van Rijswick (water law) and Professor Cedric Ryngaert (International law), or the course coordinator: Otto Spijkers.

Calls for Papers

  • The Vienna Journal on International Constitutional Law is dedicated to a wide range of subjects including in particular European Constitutional Law, Public International Law, the Constitutionalization of International Law, the Internationalization of Constitutional Law, the Migration of Constitutional Ideas, Legal Theory, and Comparative Constitutional Law. By linking these select perspectives, the Journal endorses an approach towards a coherent understanding of International Constitutional Law, thus preparing the ground for novel answers to the challenges of a changing global legal framework. For its 10 year anniversary the Journal will host a conference dedicated to its very scope: The one day event to be held on23 September 2016 at Vienna University of Economics and Business (WU) will focus on the concept of International Constitutional Law. Abstracts of no more than 300 words accompanied by your CV and inquiries may be directed to Maria Fegerl (maria [dot] fegerl [at] wu [dot] ac [dot] at) until May 15. All applicants will be notified by May 31. Accepted papers will be included in ICL Journal Vol 11. Please be advised that travel expenses cannot be covered.
  • Call for Papers, Asian Society of International Law Regional Conference on “International Law and a Dynamic Asia” Ha Noi, Vietnam, 14-15 June 2016 Deadline: 15 April 2016. The 2016 Regional Conference of the Asian Society of International Law will take place in Ha Noi, Viet Nam, hosted by the Diplomatic Academy of Vietnam. The Conference will consist of plenary sessions and a number of agorae. In addition, the Conference will feature two special agorae on the Trans-Pacific Partnership Agreement and the establishment of the ASEAN Community – two remarkable developments in 2015. The Conference provides an excellent forum for speakers to share innovative and original ideas in wide-ranging areas of international law with a view to stimulating debate and promoting further research; this is also an opportunity to foster contacts between participants. Papers presented in agorae should focus on the field of international law connected with the overarching conference theme. Papers should be unpublished at the moment of presentation and be at an advanced stage of completion. The deadline for submission of abstracts is 15 April 2016. Abstracts in no more than 500 words should be submitted via email to ilconference [dot] vn2016 [at] gmail [dot] comPlease click here for more information on the Call for Papers and the conference theme.
  • ILW 2016 – Call for Proposals: International Law Weekend 2016 (ILW 2016) is scheduled for October 27-29, 2016 in New York City.  The ILW Organizing Committee invites panel proposals for the conference to be submitted through the online ILW Panel Proposal Submission Form. All proposals for the conference must be received by April 9, 2016. Panel proposals may concern any aspect of contemporary international law and practice. For more information, please read the full Call for Proposals or visit the ILW webpage. ILW 2016 is sponsored and organized by the American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA). Questions about the ILW 2016 may be sent to conferences [at] ilsa [dot] org.

Events

  • Queen Mary University of London’s  Centre for Law and Society in a Global Context cordially invite you to its 2016 Annual Lecture. The lecture, entitled ‘Mare Nostrum: International Law, Spatial Order, and the Mediterranean’, will be delivered by Professor Anne Orford (Melbourne) on 31 March 2016 from 6:30 – 8:30pm at the ArtsOne Lecture Theatre, Queen Mary University of London. More details can be found here. The event is free and open to all, but please register online via Eventbrite.

Announcements

  • Trade, Law and Development (Vol. 7, No. 1) [TL&D] has been published. TL&D has been ranked as the best law journal in India (2011-1015) and the 10th best law journal in the field of international trade worldwide (2015, 2014, 2013, 2012) by the Washington and Lee University Law Library in its annual rankings of law journals. Since its establishment in 2009, the journal’s efforts have been recognized by the International Centre for Settlement of Investment Disputes and the World Trade Organization. The issue and its contents can be accessed online on the website here.

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

AJIL Unbound Symposium on Third World Approaches to International Law

by Kevin Jon Heller

AJIL Unbound has just published a fantastic symposium entitled “TWAIL Perspectives on ICL, IHL, and Intervention.” The symposium includes an introduction by James Gathii (Loyola-Chicago) and essays by Asad Kiyani (Western), Parvathi Menon (Max Planck), Ntina Tzouvala (Durham), and Corri Zoli (Syracuse). All of the essays are excellent and worth a read, but I want to call special attention to Ntina’s essay, which is entitled “TWAIL and the ‘Unwilling or Unable’ Doctrine: Continuities and Ruptures.” Here is a snippet that reflects her central thesis:

The similarities between this practice and the prominent role of nineteenth-century international legal scholars in the construction of the “civilizing” discourse of the time are striking, even if “[s]ubsequent generations of international lawyers have strenuously attempted to distance the discipline from that period.” Imperial aspirations tied to such arguments also form a “red thread” that connect “the standard of civilization” with the “unwilling or unable” doctrine. The unequal international legal structure promoted by these arguments is intimately linked to an unequal political structure, characterized by the dominance of the Global North over the Global South. More specifically, states of the Global North are enabled to use force against the sovereignty and—importantly—the life and security of the citizens of states of the Global South in pursuing the former’s “war on terror” and the political and economic agendas accompanying it. Moreover, pressure is exerted upon states of the Global South to transform themselves and adopt policies appealing to powerful states, if they want to avoid being branded “unwilling or unable.” A strong parallel can be detected between this transformative process and the pressure exerted upon peripheral states during the nineteenth century to introduce reforms that would render them “civilized” and, hence, equal to Western states.

Ntina makes a number of points in the essay that I’ve tried to make over the years — but she does so far better than I ever have or could. For anyone interested in the “unwilling or unable” doctrine, her essay is a must read.

Worried About Garland’s National Security Law Record? Don’t Be.

by Deborah Pearlstein

On the hopeful assumption the Senate will come to its senses and consider President Obama’s nomination of Merrick Garland to the U.S. Supreme Court on its merits, I wanted to respond to what appears to be some skepticism among progressives that Garland is indeed a good choice for the Court. The Huffington Post, for instance, published an article following the nomination headlined (ominously) that Garland once sided with the Bush Administration on Guantanamo. I was curious, so I decided to look up the cases.
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When A.I. Met R.O.I.

by Chris Borgen

Over the years a few of us have written issues concerning battlefield robots. (See, for example: 1, 2, 3, 4, 5.)  Sometimes, we had links to remarkable videos of quadruped robots stomping through forests. Those robots and videos were made by Boston Dynamics, a company that started from an MIT research group.

Besides its designing quadruped robots, Boston Dynamics gained further renown when, in 2013, it was acquired by Google as part of that company’s broad push into robotics. Just last month, one of Boston Dynamics’ new videos wen viral; it highlighted its two-legged Atlas robot walking indoors, on snowy hillsides, lifting and stacking boxes, and being pushed by a human (and righting itself). Yesterday, Google announced that it was selling Boston Dynamics. Why? And what does this say about all the prognostications about the rise of the robots, either on the battlefield or in the workplace?

At its most basic level, the story here seems to be as much about the difficulties of post-acquisition integration of business cultures and goals as it is about robotics. An article in Bloomberg Business notes:

Executives at Google parent Alphabet Inc., absorbed with making sure all the various companies under its corporate umbrella have plans to generate real revenue, concluded that Boston Dynamics isn’t likely to produce a marketable product in the next few years and have put the unit up for sale, according to two people familiar with the company’s plans.

After Boston Dynamics’ 2013 acquisition, it was made part of Google’s broader robotics initiative, called Replicant. (Query whether naming the division after the murderous androids of Philip K.Dick’s dystopian classic Do Androids Dream of Electric Sheep, which became the movie Blade Runner, was a good idea.) Bloomberg Business explains:

At the heart of Replicant’s trouble, said a person familiar with the group, was a reluctance by Boston Dynamics executives to work with Google’s other robot engineers in California and Tokyo and the unit’s failure to come up with products that could be released in the near term.

While the issue inside of Google was less about the technology of artificial intelligence (AI) than about the return on the investment (ROI) of the robotics company acquisitions, according to Bloomberg Business the Atlas video did cause concern among some of the public relations folks at Google over whether humanoid robots  would be perceived as taking jobs from real human. Plus, as one PR person put it, some people found the robot “terrifying.” (Yeah, that “Replicant” name-choice seems increasingly like a bad idea. At least they didn’t call the business unit the “Terminator Division.”)

Many  have spent time writing and talking about the legal issues related to the use of remotely controlled or autonomous battlefield robots. The immediate issues stemmed from the use aerial drones, of course, but on the horizon has been the possibility of robots being deployed in ground combat (as opposed to in bomb demolition, or other areas where remotely controlled units are already deployed). I am all for lawyers anticipating issues caused by technological change. But before we get there, there are a host of legal issues concerning the transactions that will support the R&D that will develop this technology. With the potential sale of Boston Dynamics to Toyota, it bears noting that the immediate legal issues may have to do more with international business transactions than international humanitarian law.

An Obama-Trudeau Agreement Conceding Canada’s Claim to the Waters of the Northwest Passage?

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington, where he directs the university’s Arctic Law and Policy Institute.]

In a March 10, 2016, op-ed in the Wall Street Journal, Canadian professor Michael Byers (along with U.S. co-author Scott Borgerson), reprises an earlier suggestion aimed at bringing legitimacy to Canada’s claim of sovereignty over the waters of the Northwest Passage through a bilateral agreement between Canada and the United States. The article, titled The Arctic Front in the Battle to Contain Russia, leads with a photograph of Russian President Vladimir Putin and closes with the warning that the United States and Canada must reach agreement on the status of the waters “before it is too late,” because “there is little to stop an increasingly assertive Russia from sending a warship through” the passage. To Professor Byer’s disappointment, the suggestion is unlikely to attract any support in Washington, D.C.

The “Northwest Passage” refers to the sea route that connects the Atlantic and Pacific Oceans across the top of North America, via waterways through the islands lying between Canada’s northern continental coastline and the Arctic Ocean (displayed in red below). The Canadian government asserts that the Northwest Passage is part of Canada’s internal waters, and subject to the nation’s full sovereignty. In fact, in 2009 the Canadian Parliament renamed the waterways the “Canadian Northwest Passage.” Under Canada’s view, no other nation has the right to navigate in or fly over those waters unless Canada consents.

Arctic

[Image courtesy of geology.com]

Canada’s Claim: In contrast to the conflicting maritime claims in the South China Sea, there is no dispute regarding Canada’s sovereignty over the principal islands along the Northwest Passage (the only exception is Hans Island, a tiny uninhabited knoll in upper Baffin Bay near Greenland, which is claimed by both Canada and Denmark). The dispute concerns the status of some of the waterways surrounding the Canadian islands, and whether other nations enjoy navigation rights in those waters. Over the years, Canadian officials and commentators have relied on a variety of theories to support Canada’s claim that the waters of the Northwest Passage are internal waters. They include a claim to historic title over the waters, announced in 1973; a claim based on straight baselines, first established in 1986 (soon after the U.S. Coast Guard Cutter Polar Sea transited the passage); and occupation of the covering ice by Canada’s Inuit people “from time immemorial.”

In a paper prepared by Canada’s Library of Parliament, the Canadian government author cited Donat Pharand, whom the Library’s author describes as “perhaps the most authoritative Canadian legal expert on the question,” for the conclusion that Canada’s historical title argument is weak. By contrast, the author continues, Pharand concluded that the claim based on straight baselines around the offshore islands (a move that Pharand himself advocated in a 1984 article) is Canada’s “best” claim, and “strong enough” in international law. Other states disagree. The United States protested Canada’s claim to straight baselines in the Arctic immediately after the claim was to go into effect on January 1, 1986 (U.S. Department of State, Limits in the Seas: United States Responses to Excessive Maritime Claims, No. 112). That same year, the member-states of what was then the European Community similarly protested that they could not “acknowledge the legality” of Canada’s straight baseline claim (Id.).

In his most recent attempt to provide a legal basis for Canada’s claim to the waters of the Northwest Passage, Byers sidesteps weaknesses in Canada’s claims under existing international law, and advocates instead that President Obama and Canadian Prime Minister Trudeau negotiate a bilateral agreement by which the United States would acquiesce in Canada’s claims, in order to address the two nations’ “shared vulnerability to naval vessels from Russia and other unfriendly nations.”

Byers’ use of a Russian threat to encourage U.S. acquiescence is curious, given his recent statements elsewhere that dismiss, as “hypothetical,” security concerns about Russia raised by others. For example, in a late February 2016 interview by Radio Canada International, Professor Byers argued that Russia has “shown no sign of any inclination towards aggression in the Arctic”; a far cry from the “battle front” posed by an “increasingly assertive Russia” characterization he now offers to spook the U.S. into an agreement.

The Consistent U.S. Position: Recent White House statements make clear that the United States is not going to acquiesce in Canada’s claims to sovereignty over the waters of the Northwest Passage. As reaffirmed in the 2009 U.S. Arctic Region Policy presidential directive, the United States’ position vis-à-vis the status of the Northwest Passage has been clear:

Freedom of the seas is a top national priority. The Northwest Passage is a strait used for international navigation…; the regime of transit passage applies to passage through those straits. Preserving the rights and duties relating to navigation and overflight in the Arctic region supports our ability to exercise these rights throughout the world, including through strategic straits.

Far from signaling a willingness to retreat from its objection to Canada’s excessive maritime claims in the Arctic, U.S. objections to the claims were recently reiterated. Just last week, the Obama White House expressed what might be seen as impatience with excessive maritime claims in the Arctic. In the March 2016 Implementation Framework for the National Strategy for the Arctic Region, the Obama Administration laid out a plan to “promote international law and the freedom of the seas” in the Arctic. The Framework asserts that in the Arctic “the United States will exercise internationally recognized navigation and overflight rights, including transit passage through international straits, innocent passage through territorial seas, and conduct routine operations on, over, and under foreign exclusive economic zones, as reflected in the Law of the Sea Convention” (emphasis added). The Obama Framework goes on to pledge specific steps in the coming years that will include conducting routine Arctic maritime exercises, operations and transits consistent with international law; documenting related U.S. diplomatic communications and Department of Defense freedom of navigation operations; and delivering strategic communications at appropriate opportunities “to reflect U.S. objections to unlawful restrictions in the Arctic on the rights, freedoms, and uses of the sea and airspace recognized under international law; and to promote the global mobility of vessels and aircraft throughout the Arctic region consistent with international law.”

It should also be noted that the kind of bilateral agreement between the U.S. and Canada Byers advocates would have no effect the legal status of the waters under UN Convention on the Law of the Sea (UNCLOS). As a party to UNCLOS, Canada is strictly limited by Article 311 of the Convention in the extent to which it can attempt to alter the effect of UNCLOS by bilateral treaties. Any attempt to do so would have no effect on the navigation rights of Russia, the EU member-states, or any other state. Moreover, any such bilateral agreement would likely be viewed by the other coastal state members of the Arctic Council as inconsistent with the spirit of the 2008 Ilulissat Declaration, in which both Canada and the United States agreed that the “law of the sea,” not bilateral side agreements, provides the relevant rules regarding freedom of navigation in the Arctic.

Ironically, in arguing that a bilateral agreement between the U.S. and Canada is needed to bring legitimacy to Canada’s Northwest Passage claims and provide a legal basis for preventing Russia from sending warships through the passage, Professor Byers has implicitly acknowledged the weakness in Canada’s claim absent such an agreement, while at the same time undermining his otherwise consistent position that Russia poses no threat to security in the Arctic.

Article 87(5) of the Rome Statute – It’s Complicated…But Not Bizarre

by Patricia Jimenez Kwast

[Patricia Jimenez Kwast is completing her doctoral research on wrongful non-cooperation in international law at the University of Oxford, where she also co-convenes the Oxford Public International Law Discussion Group.]

In a recent post on Russia’s announcement that it will not cooperate with the ICC’s investigation into the Georgia situation, Kevin Jon Heller noted his puzzlement as to why Russia did not simply “milk a little goodwill by at least pretending to cooperate with the ICC” and simply “stop cooperating” if incriminating evidence was found. In response, I suggested that “[o]nce Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute.” I commented that “pretending to cooperate or stopping cooperation after agreeing to cooperate does carry legal consequences.”

Article 87(5)(b) of the Rome Statute provides:

Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

I should admit that I posted my comment without giving the precise implications of Article 87(5)(b) much thought at this point (I planned to consider them in a later journal article). I simply recalled Article 87(5) from writing an earlier post on a non-cooperation finding against Sudan. Like Sudan, Russia is a non-party, but the situation in Darfur was referred to the ICC by the SC whereas the Georgia situation is not. So the SC option in 87(5)(b) is irrelevant to questions of Russian non-cooperation. As Heller points out, “the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties.”

But what about my suggestion that Russia can face other steps under Article 87(5)(b) for its non-cooperation if it fails to cooperate after agreeing to do so? In the follow-up post Article 87(5) of the Rome Statute – Bizarre and Possibly Counterproductive, Heller comments:

I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.

My first impulse is to agree entirely with the suggestion that Article 87(5)(b) should be read to apply “only when a non-party-State makes a formal commitment to cooperate with the Court and then breaks that commitment.” A formal commitment was the scenario of initial Russian cooperation that I had in mind, at least in so far as the phrase “or any other appropriate basis” – i.e. other than agreements and ad hoc arrangements – of 87(5)(a) is omitted from 87(5)(b).

However, (more…)