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Weekend Roundup: December 13-19, 2014

by An Hertogen

This week on Opinio Juris, our regular bloggers touched on a variety of topics again with Kevin rejecting Ashley Deeks’ evidence that the international response to ISIS supports the “unwilling or unable” test under article 51 UN Charter and Kristen expanding the UN’s list of 13 things to know about UN sanctions to 16. Prompted by Christopher Kutz’ essay, Julian asked whether the norm against torture is indeed dying in the US.

In guest posts this week, Bede Sheppard discussed new guidelines to protect schools and universities from military use during armed conflict, and Rick Lines and Damon Barrett pointed to an interesting question of international law posed by the US’ four pillar approach to international drug control.

Finally, Kevin welcomed Points of Order to the blogosphere and, as every week, you could count on Jessica to wrap up the international news headlines and list the events and announcements.

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

China Manages to File (and Not File) a Legal Brief in the Philippines Arbitration

by Julian Ku

The UNCLOS arbitral tribunal formed to hear a dispute brought by the Philippines against China has set December 15 as a deadline for China to submit a legal brief or memorial. As most of our readers know, China has steadfastly refused to even participate in the arbitral process. It has not selected any arbitrators and it did not attend the first hearing last spring. I (like most observers) expected China to ignore the December 15 deadline as well.

Although it looks like China will not file a formal legal memorial, it released yesterday a long, tightly argued “position paper” that looks a lot like a formal legal memorial (at least on the question of the tribunal’s jurisdiction).   So China is going to essentially file a jurisdictional objection (since the tribunal will surely read this paper) without having to file a formal legal brief.

It’s the best of both worlds for China, since if the tribunal is influenced by the position paper, then this is good for China. If the tribunal ultimately reject the legal position and asserts jurisdiction, China will be able to say that it never actually participated in the arbitration anyway.

As a legal document, the position paper is very well done and is the best legal analysis of the jurisdictional issues in the Philippines arbitration I have seen coming out of China, and certainly from the Chinese government. Granted, the Philippines have not released their own memorial so I haven’t had the chance to read their side. Essentially, China has three arguments against jurisdiction:

  • The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;

  • China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;

  • Even assuming,arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes,inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;

What is good about the position paper is that offers careful and credible legal analysis and avoids (for the most part) the annoying official propaganda tone that is the bane of every China-analyst.  I haven’t had the time to go through the paper with any great detail, so I will offer more detailed analysis at a future time. I will just say for now that I am most skeptical of China’s second argument: that the “Philippines has breached its obligation under international law” by failing to settle this dispute via negotiations. While China has usefully offered facts to explain how the Philippines has not really fulfilled its obligations to negotiate, I just don’t think the Declaration of Conduct China is relying upon can be interpreted to bar any and all UNCLOS arbitrations indefinitely, as China would seem to have it.

But there is a lot here to chew on.   I will try to share more of my thoughts when I’ve had time think about this paper more carefully. And I’m sure the Philippines will be tempted to release at least the jurisdictional portion of their brief as well. I hope they do, since the public reaction to their legal arguments will be just as important as any ruling the tribunal makes.

Events and Announcements: December 7, 2014

by Jessica Dorsey

Events

  • The Centre of Excellence for International Courts (iCourts) and PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order is hosting a high-level summer school for PhD students working on international law and with a special interest in interdisciplinary studies of international law and its social and political context. We particularly welcome students and scholars who are writing up a PhD thesis that involves an interdisciplinary study of one or more international courts. More information can be found here.

Calls for Papers

  • Are you interested in attending an all-expense paid 3 week summer program on Human Rights and Humanitarian Law taught by over 39 world-renowned practitioners and academics at American University Washington College of Law? Well, now is your chance! Submit an essay to the Human Rights Essay Award Competition and you could be the lucky winner to receive a scholarship to attend the 2015 Program of Advanced Studies in Human Rights and Humanitarian Law. This year’s topic is “Transitional Justice, International Human Rights and Humanitarian Law” and the deadline to submit is February 1, 2015. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review. This annual competition sponsored by the Academy on Human Rights and Humanitarian Law seeks to stimulate the production of scholarly work in international human rights law. The Academy will grant two Awards, one for the best article in English and one for the best article in Spanish. The Award in each case will consist of: a scholarship to the Academy’s Program of Advanced Studies, travel expenses to Washington D.C., housing at the university dorms and a per diem for living expenses. For detailed guidelines about the award please visit the website here or contact the organizers at: hracademy [at] wcl [dot] american [dot] edu
  • TDM has announced a special issue on “Dealing with Diversity in International Arbitration.” This Special Issue will analyse discrimination and diversity in international arbitration. It will examine new trends, developments, and challenges in the use of practitioners from different geographical, ethnic/racial, religious backgrounds as well as of different genders in international arbitration, whether as counsel or tribunal members. This special issue will be edited by Professor Rashda Rana SC (Barrister, Arbitrator at 39 Essex Street Chambers, President ArbitralWomen) and Louise Barrington (Independent Arbitrator and Director Aculex Transnational Inc) with the assistance of the Edition Committee including Karen Mills (Partner Karim Syah Indonesia) and Gabrielle Nater Bass (Partner Homburger Switzerland) (for more information, click here). Publication is expected in July 2015. Proposals for papers should be submitted to the editors by 30 January 2015.

Announcements

  • The International Commission of Jurists has released the 88th edition of the E-Bulletin on counter-terrorism and human rights. It covers highlights from Africa & Middle East, Americas, Asia and Pacific, Europe & Commonwealth of Independent States as well as from international and regional organizations (UN & EU).
  • The deadline for the Fourth Annual Junior Faculty Forum for International Law—of December 15, 2014—is fast approaching. Further information can be found here about the fourth Forum, which will be convened at the European University Institute in Florence in June 2015 by Dino Kritsiotis (Nottingham), Anne Orford (Melbourne) and JHH Weiler (EUI).
  • The Academy on Human Rights and Humanitarian Law is pleased to announce that the Program of Advanced Studies on Human Rights and Humanitarian Law is now accepting applicationsThe program will take place from May 26 to June 12, 2015. This Program offers 18 courses in English and Spanish lectured by over 39 scholars of relevance in the field of Human Rights and Humanitarian Law and gathers more than 150 participants from more than 25 different countries and with different levels of professional experience. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission on Human Rights and professors from all over the world. The Program is offered in three categories which include the modality of Certificate of Attendance for lawyers, law students and HR professionals of any country, ABA Credits for U.S. students and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. The application form for this program will be available here. For more information please contact the organizers at: hracademy [at] wcl [dot] american [dot] edu.
  • The GlobalTrust research project at Tel Aviv University Faculty of Law studies the extent to which states that exercise regulatory functions should take into account the interests and preferences of foreign individuals and communities located outside their boundaries. Participants in this project explore the possible moral and legal grounds for requiring states to take other-regarding considerations into account and the institutional mechanisms that could legitimize the external review of states’ compliance with such obligations.Funded by a European Research Council Advanced Grant, the project offers three types of fellowships: post-doctoral, doctoral and short-term visiting fellowships. Application deadline (for the academic year of 2015-2016): 1 February, 2015. More information can be found here.

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

Weekend Roundup: November 30-December 5, 2014

by An Hertogen

This week on Opinio Juris, Roger commented on Joel Trachtman’s article on customary international law, which attracted a lot of debate from our readers in the comments.

Kevin lamented US Courts’ insufficient understanding of IHL and wondered if Paddington would prefer Australia’s Christmas Island. He also responded to Ryan Vogel’s post on Lawfare on the OTP’s Afghanistan’s investigation.

Julian explained why he does not fully agree with Eric Posner’s view on international human rights law clinics and asked whether the Supreme Court implicitly reversed Kiobel’s corporate liability holding.

Finally, Jessica wrapped up the international news headlines and listed events and announcements.

Have a nice weekend!

Did the Supreme Court Implicitly Reverse Kiobel’s Corporate Liability Holding?

by Julian Ku

Way back in 2010, the U.S. Court of Appeals in the Second Circuit held that corporations cannot be held liable under customary international law in ATS lawsuits.  That decision, which was the original basis for the Supreme Court’s consideration of the Kiobel case, has remained the law of the Second Circuit (New York, Connecticut, Vermont) though no other circuit court in the U.S. has followed it.  The Supreme Court was initially going to review that original Kiobel decision, but then decided Kiobel on other grounds, namely, that the presumption against extraterritoriality applies to claims brought under the Alien Tort Statute.  In recent cases, ATS plaintiffs have raised questions about the viability of the original Kiobel corporate liability holding. Did the Supreme Court leave that question open or had it reversed the lower court’s corporate liability decision sub silentio?

The argument that the Kiobel corporate liability holding no longer stands has two parts.  First, a plain reading of the Supreme Court’s Kiobel decision turns up language suggesting that corporations could be liable under the Alien Tort Statute.  In the majority opinion, Chief Justice Roberts stated that ““[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices [to displace the presumption against extraterritorial application].”  The argument here is that although “mere corporate presence” is not enough, corporations with other, deeper connections might displace the presumption against extraterritoriality. (Since the Court in other places explicitly stated it was not reaching the corporate liability question, I am skeptical of this argument).

Second, and more persuasively, you might argue that because the Supreme Court dismissed the Kiobel case on the grounds that the presumption against extraterritoriality applied to the Alien Tort Statute and that the presumption only applies if the court has reached the merits (e.g. whether the statute applies to the facts at hand).  Because the corporate liability defense was a jurisdictional ruling, this line of reasoning goes, then the Supreme Court must have implicitly found that it had jurisdiction over corporations in order to dismiss the case on the merits.

This second argument has some force to it (it was previewed in our insta-symposium last spring), and it was accepted by Judge Shira Scheindlin in a separate New York district court ATS case even though she ended up dismissing that case on other grounds.   It looks like the plaintiffs in another ATS case, Jesner v. Arab Bank, will get the appeals court to consider the issue as well, according to this NY Law Journal write up of oral argument in that case.

I think it is unlikely that the panel will conclude that the Kiobel corporate liability holding has been implicitly reversed, but I do think there is enough of an argument here to attract review of the full en banc Second Circuit. The tricky part here is that the ATS is itself a “jurisdictional” statute, and as the Supreme Court in Kiobel acknowledged, the presumption against extraterritoriality doesn’t typically apply to jurisdictional statutes.  So the Kiobel presumption is a little different and its application to causes of action that can be brought under the ATS is not exactly the same as when the standard presumption against extraterritoriality is applied to a regular non-jurisdictional statute. But it is unclear whether it is different enough to matter.

I am still coming to my own point of view on this issue. I don’t think the defendants in Jesner really addressed this issue effectively in their brief, but it is a complex issue.  At the very least, I think it will be resolved in the near future by the Second Circuit, either by this panel or by the full court. Corporate liability under the Alien Tort Statute is not quite a dead issue, but ti will take some time to figure out how alive it is.

The OTP’s Afghanistan Investigation: A Response to Vogel

by Kevin Jon Heller

As a number of commentators have recently noted, the latest report on the OTP’s preliminary-examination activities indicates that the OTP is specifically considering whether US forces are responsible for war crimes relating to detainee treatment in Afghanistan — something it only hinted at in its 2013 report. Here are the relevant statements (pp. 22-23):

94. The Office has been assessing available information relating to the alleged abuse of detainees by international forces within the temporal jurisdiction of the Court. In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office. In accordance with the Presidential Directive of 7 February 2002, Taliban detainees were denied the status of prisoner of war under article 4 of the Third Geneva Convention but were required to be treated humanely. In this context, the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called “enhanced interrogation techniques” against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations. The development and implementation of such techniques is documented inter alia in declassified US Government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.

95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.

I highly recommend the posts by David Bosco at Multilateralist and Ryan Goodman at Just Security on the OTP’s report. But I have reservations about Ryan Vogel’s post at Lawfare. Although Vogel makes some good points about the political implications of the OTP’s decision to investigate US actions, his legal criticisms of the OTP are based on a problematic understanding of how gravity and complementarity function in the Rome Statute.

First, there is this claim:

Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.”  The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.

It is not completely clear what Vogel’s objection is, but it’s likely one of two things: (1) he does not believe US actions in Afghanistan qualify as torture; or (2) he does not believe any acts of torture the US did commit are collectively serious enough to justify a formal OTP investigation.The first objection is irrelevant: whether acts qualify as torture is for the ICC to decide, not the US. The second objection is more serious, but is based on a misunderstanding of the difference between situational gravity and case gravity…

Eric Posner’s Not Completely Wrong Critique of International Human Rights Law Clinics

by Julian Ku

[I posted this last week, or I thought I did, but somehow it ended up staying hidden in the bowels of OJ’s archives. So although it is a little late, I am posting this again today.  -Julian]

As is his wont, U. Chicago law professor Eric Posner has hit a nerve with his recent Chronicle of Higher Education essay criticizing the value of international human rights law clinics at many law schools.  As part of his larger critique of international human rights law in general, Posner argues that most international human rights law school clinics “engage in a bewildering array of programs and strategies that have little in common but a left-wing orientation.”   Many (maybe most) of these clinics, Posner argues, engage in wide-ranging left-wing political advocacy with no particular focus on training students with legal skills. Crucial to his argument is that, unlike regular domestic law clinics, international human rights law is such a fuzzy unsettled and undeveloped area of law that there are few concrete legal skills that are teachable in such clinics.

His essay has drawn a sharp reaction (of course) from those who are involved in these clinics.  Most prominently, Sital Kalantry, the founder of a new international human rights clinics at U. Chicago Law itself, argues that Posner doesn’t understand what such clinics do and, in any event, his attack on clinics rests entirely on his (misguided) attack on international human rights law itself.

As always, I am sympathetic to Posner’s views here and admire his willingness to take on yet another sacred cow.   But even I think his attack on international human rights clinics sweeps a bit too broadly.  Under his view of the role of clinics and legal education, narrowly focused clinics would satisfy his standard.  My law school (Hofstra) has a just such a clinic focused on asylum hearings in deportation proceedings within the US immigration law system. Students learn a great deal about how to handle real clients, draft legal papers, and make arguments, before mostly administrative law judges.  But since asylum claims almost always require invocation of international as well as domestic law standards in order to determine whether asylum should be granted, it is also sort of an international human rights law clinic.

I do agree with Posner that it is possible that some international human rights law clinics, like that at my alma mater Yale, have extremely broad mandates to pretty much do anything from filing briefs in domestic litigation and suing their former alums, to lobbying city councils to adopt human rights standards to issuing reports on international law. And these clinics are very close to pure political advocacy groups. But these more ambitious clinics are probably inspired by freestanding non-governmental organizations like Human Rights First or Human Rights Watch, whose lawyers also engage in  broad range of non-lawyering political advocacy.  And they also are within the orbit of the larger universe of UN-affiliated NGOs and UN human rights institutions.  Should law students really be training to do the same type of stuff? I think this depends on the particular situation of the law school and the goals of its students.  I think a narrower clinic is probably better in most cases, but I am not ready to say that it would never be appropriate to have a broad-based international human rights law clinic, and that there would never be any useful legal education occurring in that clinic.

But I think Posner’s critique reminds us that international human rights law clinics are outside the traditional box of law school clinics, and that they do risk becoming a platform for pure political advocacy (and training students in pure political advocacy).  That is something that I agree is undesirable, and I am glad that his critics don’t dispute that point.  Even international human rights law clinics deserve scrutiny and to be held to the same standards as other law school clinics.

Law schools need to make hard assessments about whether such clinics are worth it for their students, and perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training (like a political asylum clinic, etc.).  Posner asks the right questions, even if I think his final answer is not quite right.

Would Paddington Prefer Christmas Island?

by Kevin Jon Heller

I’m sure most of us will go see the live-action movie version of PADDINGTON, which recently hit the big screen. And we will do so, of course, because we are interested in what Paddington’s residence status says about the UK’s harsh immigration laws. Fortunately, Colin Yeo has prepared a nice primer for us at the Free Movement blog, run by the excellent Garden Court Chambers. Here’s a snippet:

Paddington stows away and deliberately avoids the immigration authorities on arrival. He is in formal legal terms an illegal entrant and as such commits a criminal offence under section 24 of the Immigration Act 1971. It is an offence punishable by up to six months in prison. If or when detected by the authorities it is more likely he would simply be removed back to Peru than that he would be prosecuted, though. To avoid that fate he would need to make out a legal basis to stay.

Incidentally, for offering a home to Paddington — or harbouring him, as the Home Office would have it — Mr and Mrs Brown could potentially face prosecution under section 25 of the Immigration Act 1971, entitled “Assisting unlawful immigration to member State”.

Yeo goes on to explain why Paddington will have a difficult time justifying his illegal entry into the UK — and will probably end up in a poorly-run private detention centre. (Do I hear sequel? Perhaps it could be entitled PADDINGTON MAKES A NEW FRIEND.)

It could be worse, though. Paddington could’ve tried to sneak into Australia. If he had, he’d likely be sent to the ironically-named Christmas Island, Oz’s very own prison camp.

Weekly News Wrap: Monday, December 1, 2014

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • The UN Committee on Torture has released its concluding observations on Sweden, Ukraine, Venezuela, Australia, Burundi, USA, Croatia and Kazakhstan.
  • Argentina has charged HSBC with aiding more than 4,000 clients to evade taxes by stashing their money in secret Swiss bank accounts, the country’s AFIP tax authority said on Thursday.
  • Colombia’s main rebel group has freed army General Ruben Dario Alzate, who was captured two weeks ago. President Juan Manuel Santos tweeted the general and his two companions had been released by the FARC to the ICRC and representatives of Cuba and Norway and they were in good condition.

Oceania

UN/World

Why Can’t US Courts Understand IHL?

by Kevin Jon Heller

While researching an essay on the use of analogy in IHL, I had the misfortune of reading Al Warafi v. Obama, a recent habeas case involving an alleged member of the Taliban. Al Warafi argued that even if he was a member of the Taliban — which he denied — he was entitled to be treated in detention as permanent medical personnel under Article 24 of the First Geneva Convention (GC I), which provides that “[m]edical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease… shall be respected and protected in all circumstances.” That protected status is very important, because other provisions in GC I — as well as in the First Additional Protocol (AP I), which extends the rules of GC I — require medics to be given a number of protections and privileges that other detainees do not enjoy.

The District Court rejected Al Warafi’s argument, concluding (p. 17) that he did not qualify as permanent medical personnel under Article 24 because the Taliban had not provided him with “the proof required by the Convention — that is, official identification demonstrating that he is entitled to protected status under Article 24. Absent such identification, petitioner simply cannot prove that he qualifies as Article 24 personnel.” In reaching the conclusion, the District Court specifically relied on paragraph 734 of the Commentary to AP I:

A soldier with medical duties is actually an able-bodied person who might well engage in combat; a medical vehicle could be used to transport ammunition rather than the wounded or medical supplies. Thus it is essential for medical personnel, units, materials and transports to be identified in order to ensure the protection to which they are entitled, which is identical to that accorded the wounded, sick and shipwrecked.

The DC Circuit then rejected Al Warafi’s appeal of the District Court’s decision on the same grounds.

I was puzzled by paragraph 734 when I came across it in the District Court’s decision. It seemed obvious that a medic who was not wearing the identification required by GC I and AP I could be targeted without violating the principle of distinction. It seemed equally obvious that a captured medic without proper identification might have a difficult time convincing his captors of his status. But I found it difficult to believe GC I and AP 1 would actually deprive a medic of his protected status simply because he did not have the proper identification. Doing so would serve no humanitarian purpose whatsoever, assuming the individual could establish his status by other means.

But paragraph 734 said what it said. So surely the District Court’s conclusion was correct. Right?

Wrong. Had the District Court bothered to read the next twelve paragraphs in the Commentary to AP I, it would have realised that, in fact, proper identification is not necessary for a medic to be entitled to protected status. Here is paragraph 746 of the Commentary to AP I:

The basic principle is stated in this first paragraph. The right to respect and protection of medical personnel and medical objects would be meaningless if they could not be clearly recognized. The Parties to the conflict therefore have a great interest in seeing that such personnel and objects can be identified by the enemy. Thus the rule laid down here is in the interests of those who are responsible for observing it. In fact, it would be the medical personnel and medical objects of the Party concerned which would suffer from poor means of identification and which could become the target of an enemy that had not identified them. Yet it must be emphasized that the means of identification do not constitute the right to protection, and from the moment that medical personnel or medical objects have been identified, shortcomings in the means of identification cannot be used as a pretext for failing to respect them.

In other words: the District Court and the DC Circuit should not have dismissed Al Warafi’s habeas petition on the ground the Taliban had not issued him with “official identification demonstrating that he is entitled to protected status.” Neither GC I nor AP I require such identification.

Another day, another misunderstanding of IHL by US courts. Sad, but predictable.

Events and Announcements: November 30, 2014

by Jessica Dorsey

Events

  • The International Bar Association has announced the IBA Annual Conference on International Criminal Law:International Legal Challenges for 2015 taking place 31 January-1 February 2015 at the Peace Palace in The Hague. More information, including registration and the program, can be found here.
  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) Herzliya would like to invite you to next session of the Joint International Humanitarian Law Forum. The session will be held on Wednesday, December 10, 2014, 18:30, room C110 (Arazi-Ofer Building, 2nd floor) at the IDC. In this session ALMA Chairman Ido Rosenzweig will discuss his recent publiaction: Combatants Dressed as Civilians?
    The Case of the Israeli Mista’arvim under International Law (Policy Paper of the Israeli Democracy Institute, download here). This event will be conducted in Hebrew, but could be conducted in English with sufficient preliminary request.
  • The Harry Weinrebe Annual Memorial Lecture is the first in an annual series to honour the memory of Harry Weinrebe, a philanthropist and the founder of the Dorset Foundation. The series is focused on the protection of international peace and justice, values that were at heart of Mr Weinrebe’s humanitarian activities. In his keynote lecture, Ben Emmerson, UN Special Rapporteur on Counter-Terrorism and Human Rights and renowned barrister will focus on pressing issues at the intersection of peace and justice including: mass digital surveillance in the global age, the use of drones in the fight against international terrorism, the rights of victims of terrorism and areas of good practice in the fight against terrorism. Opening Remarks will be given by Professor Robert McCorquodale (Director, BIICL) and the lecture will be chaired by Dr Andraž Zidar (Dorset Senior Research Fellow in Public International Law, BIICL). The lecture, taking place in London on 4 December 2014, will be followed by a drinks reception. Full details and online booking available here.

Announcements

  • If you’re looking for a stocking stuffer for the international law geek in your life, the International Game of Justice developed by Valentin Jeutner, a PhD student at Gonville and Caius College, at the University of Cambridge, may be just what you are looking for. We announced its debut last year, but the updated 5th edition has just been released. More information is here.

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

Customary International Law is Obsolete

by Roger Alford

That’s the provocative conclusion of the latest research by Joel Trachtman. Trachtman’s articles are typically succinct and seductive, so you owe it to yourself to read the short article (and skim the long appendix).

Trachtman examined 300 different CIL rules and found that only 13 (4.33%) have not been either incorporated in treaties or codified. Trachtman argues that the move toward treaties is because CIL cannot respond effectively to the great modern challenges of international society: global environmental protection, international public health, cybersecurity, financial cataclysm, and liberalization of movement of goods, services, and people. Trachtman also argues that CIL is incapable of addressing enduring challenges of regulating war, protecting human rights, and reducing poverty.

According to Trachtman, the reasons for CIL’s obsolescence are manifold. CIL (1) cannot be made in a coordinated manner; (2) cannot be made with sufficient detail; (3) cannot be made with sufficiently heterogeneous reciprocity; (4) cannot be made with specifically-designed organization support; (5) is not subject to national parliamentary control; (6) purports to bind states that did not consent but failed to object to its formation, and (7) provides excessive space for auto-interpretation by states or undisciplined judges.

For Trachtman, the obsolescence of CIL should lead states to stop arguing about CIL and start legislating mutually beneficial transactions. It should also lead NGOs and advocates to stop trying to “bootstrap a desired CIL past a target state” and instead engage with those states in treatymaking. Academics should “focus our analysis on the politically immanent, interdisciplinary, work of developing proposed rules that are administratively workable and effective, and that achieve actual social goals.” He suggests that the international legal system could survive just fine without CIL. So stop worrying about custom and learn to love treaties.

This is powerful stuff. With this piece Trachtman has done a great service to the academic debate on the relevance of CIL. Perhaps unwittingly, he also has done great service to customary international law by offering a comprehensive appendix that lists 300 of the most important CIL rules. If you want students to quickly grasp the scope and contours of CIL, just peruse the appendix.

Applying Trachtman’s thesis to my world of international economic law, I must concur with much of Trachtman’s argument. International trade law, in particular, is all about negotiating, interpretation, and enforcing treaties. We rarely if ever discuss CIL in a trade class. The very nature of an FTA is that it confers rights and obligations exclusively its Members. The defects of CIL are significant enough that trade law is almost exclusively treaty law.

International arbitration is more complicated. Trachtman only identifies two CIL rules for international economic law (Rule 207 and 208), both codified in the investment chapter of NAFTA Chapter 11. But the norm for investment arbitration is to articulate a general standard of protection in bilateral investment treaties (or FTA investment chapters), and then leave it to arbitral tribunals the task of devising detailed obligations from those general standards. Indeed, most BITs require States to afford investors protection consistent with international law, leaving to tribunals the task of discerning precisely what international law requires. BITs are not codifying CIL, but in a sense they instruct tribunals to create it.

Trachtman would not disagree that CIL is still relevant in limited contexts. He specifically recognizes that occasionally CIL is more precise than a codified rule. International humanitarian law and investment arbitration may be such categories. Likewise, Trachtman would concede that CIL is relevant where the treaty is binding on only a few states, as is the case with rules of state succession.

One can easily find selective instances where Trachtman is wrong. But what I doubt critics will be able to do is refute his general thesis that the codification of international rules through treaties has made CIL increasingly obsolete.