Recent Posts

Fifth Annual Junior Faculty Forum for International Law: New York City, June 27-29, 2016

by Kevin Jon Heller

Today through Wednesday, June 27-29, 2016, the Annual Junior Faculty Forum for International Law will host its fifth edition, at the New York University School of Law. The Forum is convened by Dino Kritsiotis (Univ. of Nottingham), Anne Orford (Univ. of Melbourne), and JHH Weiler (EUI/NYU), who will be joined this year by Benedict Kingsbury (NYU) and José Alvarez (NYU) as guest convenors. The program is here.

Events and Announcements: June 5, 2016

by Jessica Dorsey

Event

  • Between Europe and the United States: The Israeli Supreme Court in Comparative Perspective is being held Monday, June 27, 2016 – 9:00am to 6:00pm at the Benjamin N. Cardozo School of Law. For more information, click here. Despite a shared commitment to constitutional norms and a shared intuition that constitutional norms reflect universal principles, the United States and Europe interpret constitutional norms in markedly different ways. To take but one example, European privacy norms are shaped largely around the concept of dignity and inherited ideas of honor, whereas American privacy norms have historically rested on the value of liberty, especially liberty vis-à-vis the government. Both systems shape constitutional norms against the background of their distinct social and political traditions. Israel is poised between these two older legal cultures and is in dialogue with both. Does Israeli constitutional jurisprudence share more with Europe or with the United States?  Do particular social and political ideas within Israeli legal culture account for the disparate alliances? What are the particular areas in which Israel shows an affinity for one or the other, or neither, legal tradition?
    The conference is free and open to the public, but an RSVP is requested. Please email ISCP [at] yu [dot] edu with your name, affiliation and contact information.

Call for Papers

  • Gas: we breathe it, we burn it, we weaponise it, we control it. Whether banned, regulated or free-flowing, gas is our immediate environment, connecting us, keeping us warm, keeping us cool, creeping through the cracks. Explosive or sedative, it facilitates killing and curing alike. Gas leaks, escapes, and traverses boundaries, including legal boundaries. Certain gases are subject to international law, but even the most regulated gases may escape, or be unleashed. The London Review of International Law invites submissions on the subject of gas. These may touch on specific regimes regulating particular gases or groups of gases, they might look at historical processes centring on the control or release of (manufactured or natural) gases, or they might focus on the background role gas has played behind international legal processes, whether in relation to energy, climate, war, or simply the conditions of lawmaking, law enforcement, or legal speculation. Guidelines for submissions can be found under ‘Instructions to Authors’. In addition to articles, proposals for review essays and photographic (or other image-based) essays will be very welcome. Abstracts of no more than 500 words should be sent to a [dot] z [dot] wu [at] lse [dot] ac [dot] uk?subject=CFP%202017%20special%20issue%20on%20the%20theme%20of%20%27gas%27″>Aaron Wu (a [dot] z [dot] wu [at] lse [dot] ac [dot] uk) not later than 15 June 2016. Respondents will be notified of the outcome of their proposal not later than 1 July 2016.

Announcements

  • Oil Gas and Energy Law 2 (2016) is now out – Emerging Issues in Polar Energy Law and Governance, prepared by Dr Tina Hunter (Aberdeen University Centre for Energy Law), this special on Emerging Issues in Polar Energy Law and Governance provides a up-to-date analysis of many aspects of a rapidly changing region, and the legal issues that dominate the Polar regions.
  • Di Tella University, from Argentina, is delighted to announce that the fourth issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. The Journal is the first Latin American publication devoted to promoting the discussion of general topics of Public International Law from different perspectives in the region. LADI’s fourth issue includes articles by William Schabas, Roberto Gargarella, and Alejandro Chehtman, as well as discussions about international criminal law in the Americas, the role of international law in the early history of Latin America, and foreign debt restructuring, amongst others. The latest issue can be found 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.

Why the World Cup of the Unrecognized Matters [Updated]

by Chris Borgen

States and nations are not the same thing.  A nation is a “people,” itself a difficult concept to define under international law. A state is a recognized political entity that meets certain criteria. International lawyers will tell you that the characteristics of statehood include a defined territory, a government, a permanent population, and the ability to enter into foreign relations.

State formation in the 19th century and also right after World War I often sought to build states for nations (hence the term “nation-state”) but the terms are not coterminous.

So what are the hallmarks of nationhood? Many know in their hearts that there may be no more important mark of nationhood than a national soccer team. C’mon, you know it’s true.

And sometimes, peoples would like to remind you that they are nations—if not states!—and want to be recognized as such (nations or states, it gets a little blurry).

So, pay attention, soccer fans and international lawyers, because this weekend will be the final match in the 2016 Confederation of Independent Football Associations (ConIFA) World Football Cup, sometimes referred to as the World Cup of the unrecognized.  According to this NPR report, host Abkhazia is the current favorite after Western Armenia and Kurdistan were unexpectedly eliminated.

The first ConIFA World Football Cup was played in 2014 and seems to be the successor to the VIVA World Cup, about which I had previously written.

ConIFA should not be confused with FIFA, the international federation of football associations. As I had explained in a post from a couple of years ago, membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, as England and Wales are separate associations, they have separate World Cup teams. Nonetheless, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Thus, although membership in FIFA is technically not based on statehood, the process largely relies on statehood and state-based football organizations (but for noted exceptions, such as England and Wales). Consequently, unrecognized entities such as South Ossetia and Nagorno Karabakh have little chance of seeing their football associations become part of a confederation, let alone FIFA.

Now consider ConIFA’s  membership rules, which are linked not to statehood, but to “nationhood” or being a “people”:

CONIFA is made for national teams that represent a nation which is not a member of FIFA (yet). For that reason only non-members of FIFA can join CONIFA. The second requirement is that the applicant is represent of a nation. The following table explains in detail what we consider a “nation”:

1.The Football Association is a member of one of the six continental confederations of FIFA.

2. The entity represented by the Football Association is a member of the IOC.

3. The entity represented by the Football Association is a member of one of the member federations of ARISF.

4. The entity represented by the Football Association is in possession of an ISO 3166-1 country code.

5. The entity represented by the Football Association is a de-facto independent territory.

6. The entity represented by the Football Association is included on the United Nations list of non-self-governing territories.

7. The entity represented by the Football Association is included in directory of countries and territories of the TCC.

8. The entity represented by the Football Association is a member of UNPO [Unrepresented Nations and Peoples Organization] and/or FUEN [Federal Union of European Nationalities].

9. The entity represented by the Football Association is a minority included in the World Directory of Minorities and Indigenous Peoples.

10. The entity represented by the Football Association is a linguistic minority, the language of which is included on the ISO 639.2 list.

Every Football Association that fulfills at least one of the above criteria is very welcome to apply for CONIFA membership!

[Emphases and bracketed text added.]

As for the aspiration of at least some of these entities to become generally recognized as states, consider the parenthetical “(yet)” from the first sentence.

And why might a a sports tournament be important to people with much bigger issues to worry about? Because you can cheer your team, wave your flag, feel a sense of unity, sing when your winning and… yes, you can actually win. And if you don’t there’s always next year.

When you live in an unrecognized regime, you take your wins where you can get them.

Whether any of these associations become part of FIFA, let alone whether or not those entities that also seek to be recognized as states will ever achieve that goal, is a long and doubtful journey.  But in many cases that is due to reasons of military intervention, history, and/or international law. For today, there is a football to be played.

President Obama Calls out the Senate on Treaties

by Duncan Hollis

Earlier today, President Obama took time out during his commencement address at the Air Force Academy to make a pointed plea for the value of treaty-making.  Here’s the relevant excerpt from his remarks:

By the way, one of the most effective ways to lead and work with others is through treaties that advance our interests.  Lately, there’s been a mindset in Congress that just about any international treaty is somehow a violation of American sovereignty, and so the Senate almost never approves treaties anymore.  They voted down a treaty to protect disabled Americans, including our veterans, while Senator and World War II veteran Bob Dole was sitting right there in the Senate chambers in a wheelchair.

We don’t always realize it, but treaties help make a lot of things in our lives possible that we take for granted — from international phone calls to mail.  Those are good things.  Those are not a threat to our sovereignty.  I think we can all agree on that.

But also from NATO to treaties controlling nuclear weapons, treaties help keep us safe.  So if we’re truly concerned about China’s actions in the South China Sea, for example, the Senate should help strengthen our case by approving the Law of the Sea Convention — as our military leaders have urged.  And by the way, these treaties are not a new thing.  The power to make treaties is written into our Constitution.  Our Founding Fathers ratified lots of treaties.  So it’s time for the Senate to do its job and help us advance American leadership, rather than undermine it.  (Applause.)

Three paragraphs is not much to fully articulate U.S. interests in treaty-making (let alone give a balanced overview of the arguments over UNCLOS).  Thus, I think the more noteworthy thing here is the fact that the remarks are coming from the President himself.  It’s one thing to call out the Senate on a specific treaty like the Disabilities Convention, but this slap is more systemic. President Obama has not had a good record when it comes to making treaties through the Article II Advice and Consent process.  With the exception of the new START treaty, the Senate has refused to act on most treaties, including certain types of treaties (e.g., tax treaties, fish treaties) that in prior Administrations were entirely uncontroversial.  Thus, we might see this speech as a late shift in strategy, where the White House is moving off treaty-specific pro’s and con’s to reconstruct this issue in constitutional terms.  I’m not too sanguine that the move will be any more successful at getting votes on pending treaties, but the Senate’s response (if any) will bear watching.

What do others think?  Is there anything I’m missing here?

[UPDATE: An astute reader points out that I was incorrect to cite fish treaties as an example of Senate hostility to treaty-making.  In fact, all four treaties that have received Senate advice and consent since 2012 involved fish; in other words, fish treaties are the only treaties that have gotten through in the last four years.  Tax treaties and treaties on scientific cooperation and conservation, which in the past were, like fish treaties, non-controversial, are better examples of the ongoing hostility to treaty-making]

Weekly News Wrap: Monday, May 30, 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, May 22, 2016

by Jessica Dorsey

Event

  • The Institute of International Shipping and Trade Law of Swansea University will organise a joint one-day seminar on the subject of Lex Petrolea with the Center for Energy, Law, and Business of University of Texas Law School on 21 June 2016 in London. For the flyer see hereFor further information click here.

Calls for Papers

  • The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 17(2) by July 1, 2016. This issue will have a special focus on the legal implications of the Trans-Pacific Partnership, and space will also be available for articles on other issues of international law. Submissions and inquiries should be directed to law-mjil [at] unimelb [dot] edu [dot] au. For more information, please visit the website here.
  • ASIL’s International Economic Law Interest Group has announced a call for papers ahead of its biennial conference September 30, 2016-October 1, 2016 taking place at Georgetown University Law Center. The overall theme is: “Making International Economic Law Work: Integrating Disciplines and Broadening Policy Choices,” and the deadline for paper proposal submissions is June 24, 2016. Please submit an abstract of no more than 500 words and please indicate when you anticipate completion of the paper and whether the paper has been accepted for publication or has been published. If applicable, please indicate place of (anticipated) publication and date. Please also provide a CV or resume, your current affiliation and whether you are a member of the IEcLIG. Abstracts will be peer-reviewed and decisions will be issued on August 1, 2016. More information can be found here.

Announcement

  • The second annual “International and comparative disaster law essay contest” is now launched. This contest is co-sponsored by the International Federation of Red Cross and Red Crescent Societies (IFRC), the American Society of International Law Disaster Law Interest Group (ASIL DLIG), the International Disaster Law Project (IDL) of the Universities of Bologna, Scuola Superiore Sant’Anna, Roma Tre and Uninettuno.The contest is open only to students enrolled in an undergraduate or graduate degree program at any university (anywhere in the world) at the time of submission. Essays may examine any issue related to law and disasters due to natural hazards, but must do so either from a comparative or an international law perspective, or both. Comparative essays should examine laws or legal issues from no less than three countries. The winner of the contest will receive: A monetary prize in the amount of CHF 500. A free annual membership in the American Society of International Law and waiver of fees for attendance of the ASIL annual meeting in April 2017. The winner will also have his or her paper published as a “Working Paper” of the IFRC’s Disaster Law Programme. They will retain copyright of their papers and may subsequently publish them elsewhere, according to the terms of the Working Papers series. A message announcing the name of the winner and runners up of the contest will be sent to all members of the ASIL DLIG, as well as to the co-sponsors and made public on the ASIL website. The deadline for submissions is 31 August 2016.

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.

EU to Help al-Bashir Imprison Refugees

by Kevin Jon Heller

Just when I thought I was beyond being genuinely horrified, Roving Bandit called my attention to a story in Der Spiegel that almost defies words:

The ambassadors of the 28 European Union member states had agreed to secrecy. “Under no circumstances” should the public learn what was said at the talks that took place on March 23rd, the European Commission warned during the meeting of the Permanent Representatives Committee. A staff member of EU High Representative for Foreign Affairs Federica Mogherini even warned that Europe’s reputation could be at stake.

Under the heading “TOP 37: Country fiches,” the leading diplomats that day discussed a plan that the EU member states had agreed to: They would work together with dictatorships around the Horn of Africa in order to stop the refugee flows to Europe — under Germany’s leadership.

When it comes to taking action to counter the root causes of flight in the region, German Chancellor Angela Merkel has said, “I strongly believe that we must improve peoples’ living conditions.” The EU’s new action plan for the Horn of Africa provides the first concrete outlines: For three years, €40 million ($45 million) is to be paid out to eight African countries from the Emergency Trust Fund, including Sudan.

[snip]

The International Criminal Court in The Hague has issued an arrest warrant against Sudanese President Omar al-Bashir on charges relating to his alleged role in genocide and crimes against humanity in the Darfur conflict. Amnesty International also claims that the Sudanese secret service has tortured members of the opposition. And the United States accuses the country of providing financial support to terrorists.

Nevertheless, documents relating to the project indicate that Europe want to send cameras, scanners and servers for registering refugees to the Sudanese regime in addition to training their border police and assisting with the construction of two camps with detention rooms for migrants. The German Ministry for Economic Cooperation and Development has confirmed that action plan is binding, although no concrete decisions have yet been made regarding its implementation.

I think this is what policy wonks call a “bad idea.” Although, to be fair, al-Bashir’s government does know a thing or two about building detention camps:

In the IDP camps, where most of the target groups’ members fled, AL BASHIR has organized the destitution, insecurity and harassment of the survivors. The Ministry for Humanitarian Affairs provides no meaningful Government aid to those displaced, and consistently obstructs or blocks humanitarian assistance from the international community. The Ministry for Humanitarian Affairs blocks the publication of nutrition surveys, delays the delivery of aid, expels relief staff denouncing such acts, denies visas and travel permits, and imposes unnecessary bureaucratic requirements on aid workers. This has the effect of reducing nutrition and access to medical services for protracted periods of time.

Militia/Janjaweed, which AL BASHIR has recruited, armed and purposefully refused to disarm, are stationed in the vicinity of the camps and, with other GoS agents, they subject IDPs to abuses, including killings, rapes and other sexual violence. While the authorities argue that there are armed rebels in the camps, the evidence shows that those attacked are unarmed civilians.

The overall effect of physical attack, forced displacement, destruction of means of livelihood, and denial of humanitarian assistance was that mortality rates among civilians, including principally members of the target groups, remained at critical levels. Between April and June 2004, as deaths directly caused by violence decreased, mortality rates among displaced populations in Darfur remained elevated because of deficient humanitarian assistance. Overall, at least 100,000 civilians – mostly members of the targeted groups – have already endured “slow death” since March 2003.

These paragraphs are from the OTP’s second request for an arrest warrant for al-Bashir, which accused him — inter alia — of “genocide by deliberate infliction on members of the target groups conditions of life calculated to bring about the physical destruction of the group in whole or in part.” The Pre-Trial Chamber issued the warrant.

Little wonder the EU ambassadors wanted to make sure the public never found out about its horrific plan to help al-Bashir build detention camps for refugees. (Query: does the EU have a reputation regarding treatment of refugees left to protect?) Alas, Der Spiegel refused to play along.

But don’t worry, EU ambassadors. There is a silver lining: refugees are not a protected group under the Genocide Convention, so you can’t be accused of complicity in genocide when al-Bashir decides the best way to “solve the refugee problem” is to slowly kill them in the camps you help build.

Symposium: Response–Defining the International Rule of Law and Moving Without Gravity

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the sixth and final post in the Defining the Rule of Law Symposium, based on this article (free access for six months). For the other contributions, see links below.]

I am immensely appreciative of the deep thought, and the time and effort, which the contributors to this Symposium have undertaken. My thanks, too, to the editors of Opinio Juris for enabling this to happen.

My main response to the comments on my article in the ICLQ (free access for 6 months!) is delight that there has been some real engagement with the definition of the international rule of law. For too long there has been a great deal of talk and reference to the international rule of law but far too few attempts at defining it. Each of the contributors offered thoughtful and constructive views as to the definition I proposed, and none dismissed the idea that there could be an international rule of law and none took that view that it could not be defined. This is a significant step.

In terms of their comments, Janelle Diller provides a useful insight into the operation of the international rule of law across pluralistic legal systems and by international organisations, and she warns of the problem of a patchwork of compliance systems in providing a true access to justice in the international legal order. Heike Krieger astutely shows the need for the international rule of law at a time when there are some indications of significant structural changes in the way law is operating as framework for international relations. Joost Pauwelyn is wary of the breaking of a link between domestic rule of law and international rule of law, as he helpfully shows that they can both facilitate and operationalise each other. Indeed, Simon Chesterman notes that I do fall back on domestic law analogies at times in any event. Simon and John Tasioulas focus on the human rights aspects of my definition and, while neither disagrees with the inclusion of human rights, they offer insightful and perceptive comments about how to include and exclude human rights within the international rule of law.

I accept John’s comments about human rights being about values and morality, and I would note that it does become, due to the nature of the international system, also about law. While law constrains and limits human rights (not least by the restriction of obligations being solely placed on states under international human rights treaties), it also offers a language to contest and to argue for the justice that should be part of the international rule of law. I resisted strongly the view that the rule of law must include all human rights, as being both conceptually problematic and as diminishing human rights as distinctive idea. Yet, if the international rule of law is to include access to justice (as I argue it must), it should include those human rights which are directly linked to the means of ensuring the effectiveness of the international rule of law. This requires the inclusion of substantive rights, such as the right to a fair trial and right not to be discriminated against, which are directly related to the rule of law elements of having independent courts and tribunals, and the equality of all before the law. It does not include rights such as the right to privacy or the right to education as, while they do require the rule of law to enable access to a remedy for their violation, they are not an inherent part of the rule of law elements themselves. There is clearly more work to be done by us all on clarifying the relationship between the international rule of law and human rights.

I trust that this Symposium encourages others to undertake work on this difficult and fascinating area. I hope we can all defy gravity a little longer to do so.

Symposium: The International Rule of Law – Defying Gravity?

by Heike Kreiger

[Heike Krieger is Professor of Public Law and International Law at Freie Universitaet Berlin and Co-Chair of the Berlin Potsdam Research Group on The International Rule of Law – Rise or Decline? This is the fifth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here, the third here, the fourth here and the fifth here.]

The awareness of a crisis of international law is widespread. The multiplicity of challenges which the international order currently faces suggests that we might not only be confronted with a temporary situation of instability but with much more deeply embedded disruptions and lasting structural changes. Such challenges and changes require us to reflect upon the state and development of international law and its relevance as a normative order for international relations. Therefore, Robert McCorquodale’s article is very timely. If we want to assess the potential of international law to regulate and to adapt to a changing global order we need to identify the functions, objectives, and the intrinsic value an international rule of law has to offer.

McCorquodale chooses a normative approach and offers a definition for the international rule of law which relies on four objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p. 16). This effort to develop and illustrate a definition of the international rule of law helps us to distinguish structurally more relevant forms of crisis from temporary instabilities:

McCorquodale identifies the doctrine of pacta sunt servanda as a pertinent case of application for his definition. The doctrine “means that states must comply in good faith with legal obligations to which they have consented“. He submits that it forms an incentive for States to subject themselves to legally binding obligations: “This doctrine benefits all states equally, so that each of them has confidence in reaching legal agreements to secure their own interest and to assist in attaining international legal order and stability“ (p. 20). Indeed, the doctrine of pacta sunt servanda is one of the most fundamental elements of the concept of the international rule of law since it relies on the intrinsic value of the law to create stability and a minimum of trust. Thus, the idea of an international rule of law is significantly challenged when the application of this doctrine is called into question. Certain indications suggest that we can presently observe such a development.

The first indication consists in a systematically relevant disregard for inter­national law. Of course, inspite of their legal obligations States have always violated international law. Thus, I agree with McCorquodale that the existence of an international rule of law does not depend on the compliance with “substantive international legal rules“ (p. 14) but that the international rule of law is a relative concept with “varying degrees of adherence to the rule of law, as perfect adherence is ‘an ideal’“ (p. 3/15). The concept of the rule of law works like a principle whose commands maybe realized to a greater or lesser extent and whose objectives can accordingly only be optimized “with the aim of fulfilling them all over time” (p. 28). However, systematically relevant forms of non-compliance might call basic rules, or even the functioning of the system itself, into question since they affect the doctrine of pacta sunt servanda.

A pertinent debate revolves around the rules on the use of force. Whereas Tom Franck’s famous 1970 essay on Who killed Article 2 (4)? suggests that disregard for the prohibition on the use of force is not a new phenomenon, the significant variety of challenges for these rules implies a structurally relevant quality: Unilateral interventions and unilateral interpretations of UN Security Council resolutions in the cases of Kosovo, Iraq and Libya may have contributed to undermining the credibility of intervening States, if not of the whole Charter system. The impression that some States apply double standards may have resulted in a lack of a forceful UN General Assembly reaction to Russia’s attempt to annex Crimea. The long paralysis of the Security Council in the face of the armed conflict in Syria and in disregard of the Responsibility to Protect questions the legitimacy of the Charter system and, in particular, the right to veto of the P5 once more. Even outside the Charter rules, prohibitions under customary international law have been weakened. State practice in relation to Libya and Syria suggests that States deviate from established obligations in relation to the prohibition of the use of force, in particular in view of the delivery of arms to Libyan and Syrian rebels. The Paris terror attacks 2015 have perhaps again decisively raised the question whether the state-centred ius ad bellum is fit to deal with challenges arising from violent non-state actors. In addition, certain structural developments, such as the cyber-space or the difficulty to characterize attacks and to attribute them to States may have led to a more fundamental challenge for those rules. More importantly even, the 2003 invasion of Iraq might not merely represent a particularly grave case of breaking the rules, but the beginning of a generally more liberal, or rather resigned, attitude towards the prohibition on the use of force and its exceptions. Recent debates among international lawyers about the legality of the different interventions in the civil wars in Iraq and Syria have apparently received lesser attention in State practice or in the general public than the interventions in Kosovo in 1999 or in Iraq in 2003.

A second indication concerns a loss in the confidence to conclude legal agreements. There are at least some ambiguous developments which suggest such a significant challenge to the idea that international law is at all a necessary or useful framework for international relations. A relevant example concerns the “stagnation of international law” (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763) according to which States apparently prefer informal forms of cooperation over the conclusion of formal treaties. In the field of climate protection, for instance, such a tendency could entail significant advantages, inter alia, in terms of the possibility of involving non-State actors, or of increasing the willingness to agree on some substantive commitments. However, in other areas of international law not concluding a legally binding agreement might represent a more fundamental challenge indicating a decrease of legal accountability by opening avenues for States to reinforce their discretion and augment their flexibility in the international order. For instance, after the 2011 International Conference of the Red Cross and the Red Crescent the ICRC together with Switzerland promoted a process to strengthen compliance with international humanitarian law and another process to strengthen international humanitarian law protecting persons deprived of their liberty. Both processes were apparently not turned into drafts for a binding international agreement since one could assume that a negotiating process would fail because substantial standards could not have been agreed upon under a binding treaty. But even the turn to informal standard-setting did not save the process from failing. In view of a strong opposition from certain States the adopted resolutions represented a comprise that remained far behind the expectations. It was neither possible to introduce a meaningful compliance mechanism nor to achieve the ICRC’s aim to converge the standards for detention in international and non-international armed conflicts. Instead the resolutions focus on a state-driven process and seem to sideline the ICRC (See Resolutions 1 and 2 of the 32nd ICRC Conference).

These are just some indications which suggest that we might currently observe significant structural changes in the way law is operating as framework for international relations. Suffice it to mention that other elements of the international rule of law which the article identifies are confronted with comparable challenges. In this light, Robert McCorquodale has made an important contribution to identifying the functions, objectives, and the intrinsic value of such a concept. He has developed a definition which offers a standard for assessing the current state and future direction of the international rule of law in a changing global order. At the same time, Simon Chesterman’s post suggests that some of these challenges might themselves have a impact on how to conceptualize a definition when it comes to “thick” standards, such as the inclusion of access to justice for human rights. Defining, conceptualizing and applying the international rule of law is a mutually dependant ongoing effort.

Two Excellent New ICL Treatises: O’Keefe and Guilfoyle

by Kevin Jon Heller

Nothing quite beats a good treatise. Until recently, however, students and scholars of international criminal law had few worthy choices — the best for students being Cryer et al’s An Introduction to International Criminal Law and Procedure and the best for scholars being Werle’s Principles of International Criminal Law.

Those books now have serious competition. Over the past few months, OUP has published two excellent ICL treatises written by leading scholars in the field. The first comes courtesy of UCL’s Roger O’Keefe.

9780199689040 (1)O’Keefe’s book will be of primary interest to scholars, because it is very long and extremely dense. But it’s a must-read, both for its comprehensiveness and for its impressive willingness to tackle fundamental theoretical issues in ICL, such as the nature of an international crime. The only downside to the book is its expense — £95. I hope OUP will release a paperback version in the near future.

The second treatise is written by Monash’s Douglas Guilfoyle.

9780198728962

Although ICL scholars will want to have it on their bookshelves, Guilfoyle’s treatise is aimed primarily at students. It is less dense than O’Keefe’s treatise, but it still manages to provide exceptionally clear overviews of all of the primary issues in ICL without sacrificing intellectual rigour. I particularly like the way Guilfoyle uses sidebars to provide examples and “counterpoints” regarding specific issues — they are uniformly helpful. The price of the treatise is also right at £37.

I’m sure excellent ICL treatises remain to be written. But O’Keefe and Guilfoyle’s entries have raised the bar considerably.

The Unredeemable Republic of China: Why Professor Lung-Chu Chen’s Theory of Effective Self-Determination May Be Harmful to Taiwan’s Statehood Claim

by Ming-Sung Kuo

[Dr Ming-Sung Kuo is an associate professor of law at University of Warwick (UK) where he has taught international law, constitutional and administrative law, and legal theory. He earned his JSD and LLM from Yale University and his LLB and another master degree from National Taiwan University.]

In Professor Lung-Chu Chen’s recent post on Opinio Juris, he reiterates his justification of Taiwan’s statehood, which I first heard when I was still a senior law student at National Taiwan University.  In this brief note, I aim to point out why Professor Chen’s theory of effective self-determination calls Taiwan’s statehood claim into question when the Taiwanese people continue to claim statehood in the guise of the Republic of China (RoC).

Professor Chen’s argument can be reformulated as follows.  First, the Taiwanese people had the right to self-determination in international law in the wake of World War II (WWII) and the 1951 San Francisco Peace Treaty.  Specifically, the Taiwanese people would be entitled to a sovereign state of their own through the exercise of their right to self-determination in a legitimate plebiscite if they wish to.  Second, the Taiwanese people have already exercised their legal right to self-determination through successive democratic elections, which jointly amount to what Professor Chen calls effective self-determination in the place of the abovementioned legitimate plebiscite.

Following these two points that concern the legality of Taiwan’s claim to statehood in international law, Professor Chen addresses the next question of whether Taiwan has actually achieved the legal status of statehood.  On this second question, his justification also consists of two parts.  Taking the Montevideo Convention of 1933 as the reference point, Professor Chen first argues that Taiwan has already acquired all the four Montevideo elements: a defined territory, a permanent population, government, and the capacity to enter into relations with other states.  In addition to these objective elements of statehood, he further points to ‘President Chen’s 2007 application for UN membership in the name of Taiwan’ as the evidence of the subjective element of Taiwan’s statehood in response to Professor James Crawford’s challenge.  Taken as a whole, Professor Chen urges that the international society recognize Taiwan as an independent, sovereign state.

Professor Chen’s four-pronged argument raises several interesting questions in international law.  For example, when did Taiwan achieve a full statehood in its evolutionary process of independence according to his theory?  How much weight should be given to what Professor Chen’s suggests as an implicit declaration of independence as expressed in Taiwan’s bidding for UN membership in 2007?  Did the subsequent KMT Administration’s shift in policy towards the UN suggest the withdrawal of the implicit declaration of independence?  What is the scope of the right to self-determination in article I of the ICCPR and ICESCR respectively?  Is it restricted to internal self-determination?  Are the Taiwanese people entitled to the right to external self-determination?

I restrict my note to the last question.  In the ICJ’s Advisory Opinion on Kosovo’s unilateral declaration of independence, it is noted that a right to independence (ie external self-determination) exists with ‘the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’ (2010 ICJ Report 404, 436, para 79), although declarations of independence have been made outside these two contexts.  As regards the Taiwanese people, to claim the right to self-determination must be based on the fact that Taiwanese people were subject to Chinese subjugation, domination, and exploitation after Taiwan was placed under the RoC administration, which exercised the power of belligerent occupation on the Allies’ behalf at the end of WWII given that Taiwan was never listed as a non-self-governing territory under the UN.  Thus, Taiwan’s claimed statehood must have resulted from the exercise of this right to independence through which the Taiwanese people rid themselves of the Chinese yoke.  In other words, achieving independence through this exercise of self-determination (whether it takes the form of serial effective referendums or a single plebiscite) must have amounted to the repudiation of the legitimacy of the RoC’s rule over Taiwan from 25 October, 1945 on.

Here is the catch.  Although the subjugated, dominated, and exploited people have the right to independence and to rid themselves of alien occupation forces through plebiscites or other forms of self-determination, they are perfectly free to choose to become the subjects of the occupation government.  And this is the problem with the case of Taiwan.  In light of the RoC’s unequivocal claim to reunite with Chinese mainland after the 1949 division, the Taiwanese people appear to have chosen to embrace the RoC (or rather to legalize the RoC’s rule over Taiwan since 1945) through their right to self-determination by insisting on the continuity of the post-1991 RoC on Taiwan and the pre-1991 RoC regime, not to mention the continued adoption of the title of the Republic of China.  In this light, claiming independent statehood for Taiwan would have to be based on the controversial right to secession rather than self-determination, which would only jeopardize the legality of Taiwan’s claimed statehood and which the Taiwanese people have persistently denied.

Professor Chen is right that without a plebiscite under the auspices of the UN, the Taiwanese people have already exercised their right to self-determination through successive democratic elections.  Yet independence is not the only possible result of self-determination, which Professor Chen seems to presume in the case of Taiwan.  Considering the two (or more) choices in any plebiscitary procedures as the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States (http://www.un-documents.net/a25r2625.htm) suggests, I take issue with Professor Chen’s contention that the Taiwanese people have already given themselves an independent state through the exercise of the legal right to self-determination.  Failing to rid themselves of the RoC straightjacket, the Taiwanese people may instead get themselves into the one China trap by their self-determination in action.

Apple Rejects Game Where You Play a Palestinian

by Kevin Jon Heller

palestinegameThe game in question — from which the screenshot is taken — is entitled Liyla and the Shadows of War. Here is how the gaming magazine Hardcore Gamer describes it:

Liyla and the Shadows of War is a short, dark game about exactly what the title implies. You play as a father running home through a war zone attempting to collect his family and get them to safety as the bombs fall and the drone strikes mow down anything that moves.

[snip]

At the start I navigated a few platforming sections, figured out how to avoid gunfire, made a couple of story choices, and even did a simple auto-run section where I had to control the jumping of two characters simultaneously. Of the 30-ish minutes of using the app, this was about 28 or so. The final two  minutes (and it might have been less, I wasn’t running a timer) were spent reading.

A game, right? Not if you’re Apple, apparently:

CiwVR6mUUAA4j4pThe gaming community is mocking Apple’s decision, and rightfully so. As Hardcore Gamer points out, “Liyla and the Shadow of War is a game. Having a serious message about a real-world conflict doesn’t make it any less so, and it’s insulting not just to the developers but to gaming in general to say otherwise.” Indeed, there is no way Apple actually believes that Liyla and the Shadow of War isn’t a game; it simply doesn’t want to host a game developed by a Palestinian that encourages thinking critically about Israel’s violence toward Palestinians. But rejecting the game on political grounds would itself be seen as political — correctly — so Apple comes up with a ridiculous pretext for rejecting it and hopes nobody notices.

I know what you’re thinking: doesn’t Apple has the right to avoid “political” games? Isn’t it smart business to stay out of the Israel/Palestine conflict?

Fair question. And in response I give you this:

screen568x568 (1)

Meet Israeli Heroes, an Angry Birds rip-off in which — according to Boing Boing — “you hurl cartoon missiles at vaguely Arabic-looking adversaries.” Currently available for free on iTunes.

So much for Apple’s political neutrality.

Liyla and the Shadow of War is still available for Android on Google Play. I haven’t tried it yet, but it has a 4.9 average from 333 reviews, so it’s obviously good. Check it out. Maybe you’ll have fun playing and learn something about life in Palestine in the process.

Which is precisely what Apple doesn’t want you to do.