[Monica Hakimi is the Associate Dean for Academic Programming and a Professor of Law at the University of Michigan Law School.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Thanks to Opinio Juris for hosting this symposium and to Tim for his very thoughtful comments. My article examines conduct that I call “unfriendly unilateralism”—where one state decides, outside any structured international process, to act unfriendly toward another. The economic measures that the United States and Europe are now taking against Russia in response to the Crimea situation are good examples. Likewise, before the U.N. Security Council authorized states to take a broad range of measures against Iran for its nuclear program, several states acted unilaterally.

Such conduct is, in my view, undervalued in the legal literature. Most international lawyers either dismiss unfriendly unilateralism as power politics that fall outside the law, or analyze it as a tool for enforcing the law—that is, for pressuring the target state to comply with existing law. In either event, the conduct is widely understood to be regretful or ineffective. To the extent that the conduct is inconsistent with the acting state’s own obligations, it also is unlawful—unless, of course, the acting state is enforcing the law after having been injured by the target’s breach.

My article’s descriptive claim is that unfriendly unilateralism can also play an important role in lawmaking. States variously use unfriendly unilateralism to: (1) preserve legal norms, (2) strengthen legal regimes by instigating stricter substantive standards or more rigorous oversight mechanisms, (3) reconcile competing objectives from different regimes, and (4) recalibrate regimes for changed circumstances. Of course, the idea that unilateral conduct can be juris-generative is not new; unilateral claims and counterclaims are a recognized part of the customary legal process. But when unilateralism is coupled with unfriendliness—that is, when the conduct is targeted at a specific state—international lawyers instinctively put on their enforcement lenses. They focus on how the conduct enforces existing law, not on how it helps make new law. For instance, several scholars have analyzed the unfriendly unilateralism against Iran as enforcement. Yet the acting states were using unfriendly unilateralism to support a broad and coordinated lawmaking effort. Their principal goal was to pressure Iran into accepting stricter substantive standards on nonproliferation and more rigorous oversight mechanisms. As the Iran example also demonstrates, unfriendly unilateralism is a fairly unique mode of lawmaking. Unlike in the ordinary customary process, a state that uses unfriendly unilateralism usually does not model the new norm. Rather, its unfriendly (and sometimes unlawful) conduct pressures the target into accepting or helping to develop an entirely different norm. This makes unfriendly unilateralism a potentially versatile and potent lawmaking tool. (more…)

[Tim Meyer is an Assistant Professor of Law at the University of Georgia School of Law.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Monica Hakimi’s Unfriendly Unilateralism is a very welcome addition to the growing body of literature on international lawmaking. Hakimi’s basic claim is that states often act unilaterally in ways that prompt changes to international law. She defines unilateral action as that which takes place outside the confines of the collective decision-making processes commonly associated with international lawmaking (p. 111). These unilateral actions can also work to the detriment of some states (hence, “unfriendly”). In the enforcement context, Hakimi argues, international law has long recognized a role for unfriendly unilateralism. Rules on countermeasures tell us when one state’s imposition of penalties on another state is excused. Hakimi’s article insightfully describes how the doctrinal focus on enforcement obscures and distorts the role that unilateralism can play in lawmaking. Hakimi makes two key points. First, descriptively, she argues that despite the focus on unilateralism’s role in relation to enforcement issues, states nevertheless use (often noncompliant) unilateral action to prompt changes in the law. Second, Hakimi argues that unilateral action can be good for international law. By overcoming the status quo bias that exists in collective decision-making procedures, unilateralism can allow the law to adapt to changed circumstances.

Hakimi’s descriptive claim is very persuasive. In developing her argument, Hakimi does a wonderful job of exposing one of the central tensions in international law: that states are both international law’s subjects and its authors. International lawyers, scholars, and states must be mindful that states often have mixed motives when acting. Some noncompliant actions are simple cheating and can be addressed as such. States intend other noncompliant acts to be juris-generative, though. Treating these acts as run-of-the-mine noncompliance risks, among other things, underestimating how invested states are in using international law as a tool to enhance cooperation.

Indeed, not only do states take unilateral action to prompt the law’s revision; they also build into international agreements devices that encourage unilateral action. Exit clauses, regime shifting, and soft law are common tools in states’ treaty-making practice that encourage renegotiation by permitting states to unilaterally depart from the legal status quo. As Hakimi very effectively documents, states’ resort to unilateralism—both when designing international agreements and after such agreements exist—can help circumvent the formal difficulties inherent in amending legal rules in a system in which all states must consent to their own legal obligations. (more…)

[Anthea Roberts is an Associate Professor at the London School of Economics and Political Science and a Professor of Law at Columbia Law School.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

I want to thank Opinio Juris for hosting this symposium and Martins Paparinskis for taking the time to comment on this article. I highly respect Paparinskis’ work in the field, so I am grateful for his substantive engagement. I have two responses to his post.

1. Why is it important to develop hybrid theories?

As I have argued previously, investment treaty arbitration can be understood through many different paradigms, including traditional public international law, international commercial arbitration, public law, human rights law and trade law. A number of scholars, including Douglas and Paparinskis in two articles, have likewise sought to show that (1) the investment treaty system does not fit neatly into any one mold and (2) the application of different molds often leads to radically different solutions to concrete problems.

For instance, in Analogies and Other Regimes of International Law, Paparinskis recognizes that “investment law partly borrows and partly diverges from pre-existing regimes of international law” so that an interpreter is “required to determine the degree of similarity and difference so as to elaborate the ordinary meaning of both particular terms and broader structures.” Moreover, he continues, “the interpreter may plausibly rely on different approaches, with importantly different implications for the meaning and operation of particular elements of investment law.” (more…)

Here is the ICJ’s decision in “Whaling in the Antarctic” (Australia v. Japan, New Zealand intervening).  Here is the Registry’s summary. The vote was unanimous on jurisdiction, and then 12-4 on the rest in Australia’s favor with judges Owada, Abraham, Bennouna, Yusuf dissenting.  There was one aspect of the decision that went in favor of Japan (13-3) but that aspect of the decision shouldn’t affect the overall outcome significantly.

I won’t pretend to have digested this judgment in any rigorous way. I will note that the judgment calls on Japan to “revoke any extant authorization, permit or licence granted in relation to JARPA II, and refrain from granting any further permits in pursuance of that programme.”  Japan’s implementation (or non-implementation) of this remedy will be worth watching going forward.

[Martins Paparinskis, DPhil (Oxon), is a Lecturer in Law at the University College London.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

I am grateful to the UCL LLM class of International Law of Foreign Investment for clarifying my thinking on some of these matters.

A natural reaction to such an elegant and erudite article is to offer unqualified praise to its author. While not easily, this reaction should be resisted, as likely to lead to an uninspiring symposium contribution. Therefore, while fully acknowledging the great merit of the argument, I will focus instead on three points where I find the article less than entirely persuasive: (1) the analytical perspective of hybrid theory; (2) the application of law of State responsibility in investment arbitration, as per Italy v Cuba; and (3) the operation of inter-State investment arbitration, as per Ecuador v US. (It is only fair to say that there are very few points on which I actually disagree with Anthea Roberts, therefore I will be mostly clutching at exaggerated straw-mannish arguments.)

I. Depoliticisation, fictions, hybrids, and banks of fog

I will start with a trite, but hopefully not an entirely irrelevant observation. Contemporary international lawyers, unlike the lawyers of previous generations, are in possession of a reasonably complete set of rules and vocabulary on sources and responsibility in international law, which should not easily be thought to be inadequate for articulating and addressing our concerns. The different concepts and perspectives that are sometimes introduced into the legal arguments instead may be helpful, but they can also be superfluous or misleading. In investment arbitration, one example of what I have in mind is ‘depoliticisation’: a concept that (at its best) means everything for everybody, with little independent analytical value, but at its worst may be significantly misleading, erroneously suggesting with significant persuasive force that certain positive rules have or have not been created, or certain legal solutions would or would not fit the existing regime (I have contributed my two pennies here, and it seems to me that Roberts would agree, see pp 11-6). Another example, also referred to in the article (pp 32-3, 38-9), is ‘fiction’ (as ‘the fiction of diplomatic protection’). It may be that I am missing something here, but (even after rereading the leading article on the issue by Annemarieke Vermeer-Künzli) it is not obvious to me that the dutiful citations to ancient writers and cases add much to the most basic of propositions: States can create primary obligations and secondary rules of admissibility with any content whatsoever, that is precisely what they have done with (respectively) rules addressing treatment of their nationals and diplomatic protection, and there is little more to it. (more…)

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

The HILJ Online Symposium is a week-long discussion by scholars and practitioners on selected print articles from the Harvard International Law Journal. The Symposium takes place on the Opinio Juris website once or twice a year and features responses by scholars and practitioners selected by the Journal and sur-responses by the original authors.

The schedule for HILJ Online Symposium: Volumes 54(2) & 55(1) is as follows*

• Monday, March 31, 2014: Response and Sur-response to Anthea Roberts, State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority, 55 Harv. Int’l L.J. 1 (2014). Response authored by Martins Paparinskis.

• Tuesday, April 1, 2014: Response and Sur-response to Monica Hakimi, Unfriendly Unilateralism, 55 Harv. Int’l L.J. 105 (2014). Response authored by Tim Meyer.

• Wednesday, April 2, 2014: Response and Sur-response to Gregory H. Shill, Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States, 54 Harv. Int’l L.J. 459 (2013). Response authored by Christopher A. Whytock.

• Thursday, April 3, 2014: Response to János Fiala-Butora, Michael Ashley Stein & Janet E. Lord, The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, 55 Harv. Int’l L.J. 71 (2014). Response authored by Michael Waterstone.

• Friday, April 4, 2014: Response and Sur-response to Suzanne Katzenstein, In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century, 55 Harv. Int’l L.J. 151 (2014). Response authored by Karen J. Alter.

If you are interested in writing a response in future HILJ Online Symposiums, please contact iljonline [at] mail [dot] law [dot] harvard [dot] edu. For more information about the Harvard International Law Journal, please visit http://www.harvardilj.org/.

*The PDF files for Volume 55 Issue 1 currently available on the HILJ website are not final versions and are still undergoing processing by the publisher. Most of the changes will be cosmetic and will not affect the substance of the articles.

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

Africa

• More than one million people in South Sudan have been forced from their homes during more than three months of ongoing fighting, with conditions continuing to worsen, the UN has warned.
• Senegal closed its land border with Guinea on Saturday to try to prevent the spread of the Ebola virus, which Guinean authorities say is suspected of killing 70 people in what would be the deadliest outbreak in seven years. Liberia has confirmed ebola’s arrival from Guinea as well.

Asia

• Tens of thousands of Taiwanese protesters have taken to the streets in Taipei in a bid to pressure President Ma Ying-jeou to retract a controversial trade pact with China.
• A Philippine government vessel made a dash for shallow waters around the disputed reef in the South China Sea, evading two Chinese coastguard ships trying to block its path to deliver food, water and fresh troops to a military outpost on the shoal.
• North Korea fired artillery close to a disputed maritime border with the South, prompting the South to fire back, although the military exercise appeared to be yet more saber rattling from Pyongyang rather than a prelude to a sharp rise in tensions.

Americas

• In one week, 370 immigrant children, most of them from Central America, were found abandoned in Mexico, after traffickers promised to take them to the United States but left them to their own devices after being paid thousands of dollars.
• Cuban politicians have approved a law to make it more attractive for foreign investors to do business in and with the country, a measure seen as vital if the island’s struggling economy is to improve.

Middle East

• Israel has handed the Palestinians a proposal aimed at extending peace talks beyond an April 29 deadline in efforts to salvage negotiations.
• Egypt has reopened its land border with the Gaza Strip after a 50-day closure, but only for three days and then just for special cases, Gaza’s governing group Hamas has said.
• Iranian President Hassan Rouhani has selected a new ambassador to represent Tehran at the United Nations, Hamid Abutalebi, a veteran diplomat who has held key European postings in the past.

Europe

• The commander of a planned European Union peacekeeping force for Central African Republic has decided he now has enough soldiers and equipment to launch the delayed mission after governments came forward with new offers of help.
• Germany is considering offering military support to some eastern European members of the NATO defense alliance in response to Russia’s seizure of Crimea and the US has pledged $10 million to bolster border security in Moldova.
• Greece’s government secured enough votes in parliament to pass a key reform bill demanded by its international lenders, in exchange for further bailout loans to avoid default.

UN/Other

• As Julian has been covering, the International Court of Justice is about to rule on whether Japan has the right to hunt whales in the Antarctic (Australia v. Japan), in an emotive case activists say is make-or-break for the giant mammal’s future. For those of you around now (10:00 a.m. Hague time), the streaming video can be found here.
• This year’s UN climate negotiations kicked off again last week in Bonn, Germany.
• For those of you following armed groups or non-international armed conflict, the blog Armed Groups in International Law has posted its latest legal roundup.

Just in time for the odd Sunday filing deadline, the government of the Philippines announced that it had submitted its memorial in its arbitration with China under UNCLOS.

Ignoring a possible backlash from China, the Philippine government transmitted the document, called a “memorial” in international arbitration parlance, on Sunday to the Netherlands-based Permanent Court of Arbitration where a five-member tribunal operating under the United Nations Convention on the Law of the Sea will hear Manila’s complaint.

“Today, the Philippines submitted its memorial to the arbitral tribunal that is hearing the case its brought against the People’s Republic of China under the United Nations Convention on the Law of the Sea,” Foreign Affairs Secretary Albert del Rosario told a news conference.

“With firm conviction, the ultimate purpose of our memorial is our national interest.”

Manila declined to release a copy of the memorial as it has yet to be reviewed by the court.

But Del Rosario said the Philippine “memorial” consists of “ten volumes with maps,” “nearly 4,000 pages” and will fortify the Philippine case which seeks to declare China’s exaggerated claim illegal. A hard copy will be forwarded to the tribunal on Monday.

I hope and trust that at least volume I of the memorial (containing the 270-pages of actual legal argument and analysis) is released publicly soon.  I do think the additional 3700-plus pages of annexes is overkill in a case where the other side is highly unlikely to bother answering.  Still, it will be an interesting public statement of the Philippines’ best legal arguments.  I have grown increasingly skeptical of this Philippines argument, both from a legal and a strategic standpoint.  But I would like to see their arguments.

Just follow the lead of Henry Okah, a Nigerian national recently convicted in South Africa (under universal jurisdiction) of terrorism-related offences in the Niger delta. Here are the key paragraphs from the trial court’s decision:

[28] The correctness of copies of 3 journals kept by the accused in his own handwriting was admitted. In these journals the accused made notes in from January to September 2010 of names, military clothing, equipment and hardware. For example, he writes:

“Battle jackets… boots… boats, rounds… walkies…engines… balaklavas… water bottles… tee shirts, caps, belts, camo(flage) shorts… TNT… backpacks… binoculars nightvision… badges… bulletproof vests… tents… VHF radios … generators… rechargeable lamps… fuel… ordering through Ange Dewrance the construction of a gunboat with protector plates for the gunmen… rifle slings… the contact numbers of Military Surplus Stores CC… compasses… BMG assault weapons… RPG …SAM …grenade launchers… mortars… landmines… anti-tank missiles… shotguns… handguns… notes on military tactics inter alia the use of explosives, weaponry and sabotage… and notes on counter insurgency.. names of his co-militants like Tompolo, Stoneface, Boyloaf, Moses, Chima, Raphael, VIP, Stanley…”

[29] Also admitted is the fact that an email address and account was registered with Yahoo with a login name “nigdelunrest” in the name of “Mr. Jomo Gbomo.”

I hear iamalqaeda [at] gmail [dot] com and loyaltalibansoldier [at] mac [dot] com are still available. Any takers?

Hat-Tip: Chris Gevers, University of KwaZulu-Natal, who blogs at War and Law.

Events

• The Cardozo School of Law is hosting a panel on Privacy, Security, and Secrecy after Snowden on April 2, 2014 - 6:00 p.m. to 7:30 p.m., moderated by our own Deborah Pearlstein. From the website: Edward Snowden’s recent disclosures about the NSA’s surveillance activities have raised important national security and civil liberty questions: How effective is the NSA’s surveillance? What are its costs and benefits? Should individuals care if the government stores metadata even if they think they have nothing to hide? What role should courts play in potentially constraining the NSA’s surveillance activities? Who might have standing to raise constitutional challenges to the NSA’s activities? Come hear a fantastic panel of national security, cybersecurity, and privacy law experts discuss these important questions about the future of our democracy. Seating is limited for this event. RSVP to floersheimercenter [at] gmail [dot] com.
• The 2014 World Investment Forum is scheduled to take place from 13 to 16 October 2014 in the Palais des Nations, Geneva, Switzerland. The provisional program has been released. The list of participants is also available, and it includes UN Secretary General Ban Ki-moon. The website is here and you can register here.

Announcements

• The world’s first comprehensive training course on international weapons law will take place at the Geneva Academy of International Humanitarian Law 4-29 August 2014. The aim of the course is to instil participants with a detailed understanding of international weapons law: police use of force, use of weapons as a means or method of warfare, disarmament, and small arms control. Application deadlines are 15 May 2014 for applicants requiring visas to enter Switzerland and 30 June 2014 for applicants who do not require visas. Costs are 1,500 CHF per module or 5,000 CHF for all four modules. More information and the application can be found here.
• A summer school on Transitional Justice, Conflict and Human Rights will take place in Geneva from 7-11 July 2014, hosted by The Antonio Cassese Initiative for Justice, Peace and Humanity and the Geneva Academy of International Humanitarian Law and Human Rights. The application deadline is 29 May 2014 and the tuition fees are 1,500 CHF.
• The program for the upcoming ASIL/ILA meeting (7-12 April) in Washington, D.C., with the theme of The Effectiveness of International Law is now available online.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

On Monday, the International Court of Justice will announce its long-awaited judgment in Whaling in the Antarctic (Australia v. Japan). The judgment (scheduled for 10 a.m. Hague time) comes almost four years after Australia first filed its application way back in May 2010 (here is one of many prior posts where I complained about the length of time this judgment has taken).

This case will be the first time (I believe) that Japan has participated in an ICJ proceeding as a respondent and facing a binding judgment.  Both Japan and Australia had no shortage of legal talent on their teams in this case.  Australia is claiming that Japan is violating its obligations under the International Convention for the Regulation of Whaling by using the cover of “scientific research” to actually conduct commercial whaling.  Japan disagrees, and my impression is that this will end up being more of a factual than legal determination by the ICJ here, but I haven’t been following the legal arguments very closely.

In any event, it will also be interesting to see how and if Japan complies with the ICJ’s ruling if it loses.  I find it hard to imagine that the Japanese government will immediately comply, but it is hard to imagine Japan simply ignoring the judgment either.  Since there is evidence the commercial viability of whaling in Japan is collapsing anyway, perhaps this is the excuse the Japanese government needs to end its whaling programs? In any event, if Japan wants to leave open international adjudication as a mechanism for resolving disputes with Korea or China, it needs to be careful in how it reacts to any adverse ruling here.