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Podcast Special! Why the Iran Deal is Constitutional, But Could Still End Up in U.S. Court

by Julian Ku

Due to my typical mid-summer lassitude (and a family vacation among the redwoods in California), I have not participated in the excellent legal blogosphere debate over the constitutionality of the Iran Nuclear Agreement which has included contributions from Jack Goldsmith, John Yoo, Michael Ramsey, John Bellinger, David Rivkin and many others.  Luckily for me, Prof. Jeffrey Rosen and the good folks at the National Constitution Center allowed me to share my thoughts in a podcast discussion with David Rivkin, who with his co-author Lee Casey, has argued in the WSJ that the Iran Deal is unconstitutional unless submitted as a treaty under Article II of the U.S. Constitution.  The 45-minute or so podcast can be found below, and I think it is worth listening in full.
But because I may not have made myself fully clear in the podcast, I try to summarize my thoughts here on why:  1) the Iran Deal does not have to be submitted as an Article II treaty; 2) the Iran Deal may allow individual U.S. states to impose sanctions on Iran which would likely lead to U.S. litigation.  David Rivkin does a great job explaining his views on the podcast, which are worth listening to in full as well.

A) In my view, the Iran Deal (or JCPOA) does not have to be submitted as an Article II treaty for at least two reasons.

First, the terms of the agreement, which describe its obligations as “voluntary”, indicate that it is a nonbinding “political commitment”.  Even the UN Security Council Resolution which supposedly enshrined the JCPOA into international law leaves some wiggle room for the U.S. allowing it to refuse to lift sanctions on Iran without violating the SC Resolution (or at least that is how John Bellinger reads it).

To be sure, there are indications that Iran itself doesn’t think the agreement is nonbinding and it does seem odd for the U.S. administration to make all this fuss over a 10 year agreement that is not binding, but (as Duncan has explained here and elsewhere), nonbinding political commitments are not unknown in diplomatic practice.

One example that I have been studying recently is the 1972 Shanghai Communique between the U.S. and China.   This seems a classic nonbinding diplomatic agreement which nonetheless had enormous consequences for US-China and global politics.  This and two later communiques remain crucial issues with respect to U.S. “promises” about the status of Taiwan and US promises to reduce arms sales to Taiwan.  It is not exactly the same as the Iran Deal, which purports to require its parties to take certain specific actions on certain dates, but it has some of the same flavor.

For this reason, I don’t think a promise by the President to commit the U.S. to do something beyond his term of office changes this analysis much (contra Mike Ramsey).  Presidents often promise on behalf of the U.S. to do things beyond his term, but as long as they are clear that these are political commitments, not legal ones, I don’t think a treaty is required.

Second, the JCPOA does not have to be submitted as a treaty because it doesn’t require the U.S. to change its domestic laws or even to change any domestic policy that is not already within the President’s constitutional or delegated statutory powers.  Crucially, the President has delegated authority under the various sanctions statutes to waive or lift those sanctions without getting further congressional approval.  That is by far the most important U.S. obligation under the JCPOA.  The idea of giving the president these powers to lift sanctions implies that he will seek out certain changes in behavior by the sanctioned governments and then use those promised changes (by say Iran, or in the recent past Burma) as a basis to lift the sanctions.

There is a cost for the U.S. government in going the nonbinding route.  It means that Iran should not feel itself “legally” bound to abide by the agreement, or at least those parts that are not enshrined in the UN Security Council Resolution.  For U.S. constitutional purposes, it also means that any future president can withdraw from these political commitments without any requirement of legal consultation with Congress or any concerns about violating international law.  A U.S. President is also empowered to withdraw from its UN Security Council commitments as well.  (Actually, the JCPOA itself makes it pretty easy for the U.S. president to terminate the agreement according to its own terms).  This seems only fair, however, and the administration clearly seems that this is a price worth paying to avoid the Article II treaty process.

B) State-level Sanctions on Iran Are Most Likely to End Up in Court

The individual states (e.g. New York or California) could impose certain sanctions on Iran after the deal goes into effect.  Such sanctions will probably face litigation from the U.S federal government which will claim that any state-level sanctions are preempted by the JCPOA.  But because the JCPOA is a nonbinding agreement, the preemptive effect of the JCPOA is weaker than of a full-scale treaty or executive agreement.  The outcome of such a case against state-level sanctions is far from clear and may require the federal court to consider the nature of the JCPOA more carefully. My guess is that they would find it constitutional, but might be inclined to uphold the state-level sanctions. That last finding is a close call and I would love to see that case, which could very well happen in the near future.

In short, although I don’t think the Iran Deal is a very good deal for the U.S. and I hope Congress blocks it, I don’t think the JCPOA is unconstitutional.  We will hopefully get some litigation on this point in the near future when some state rolls out its anti-Iran sanctions.  But opponents of the deal should focus on the politics (getting to 67 votes in the Senate and/or a Republican President) rather than the law.

The Gaza Report’s Treatment of Warnings: A Response to Blank

by Kevin Jon Heller

Laurie Blank published a post yesterday at Lawfare entitled “The UN Gaza Report: Heads I Win, Tails You Lose.” The post accuses the Independent Commission of Inquiry’s report on Operation Protective Edge (“Gaza Report”) of “completely undermin[ing] the foundational notion of equal application of the law” with regard to three areas of IHL: warnings, civilian vs military objects, and compliance. None of Blank’s criticisms are convincing, but in this post I want to focus solely on her first topic, warnings. Here is what she says about the Commission’s discussion of whether Israel complied with its obligation under IHL to provide civilians in Gaza with “effective advance warning” prior to attack:

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I.  Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”  The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives.  However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective.  Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

Unfortunately, both paragraphs misrepresent the Gaza Report. Let’s consider Blank’s claims one-by-one.

[T]he Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.”

The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC.

These statements are misleading. The subsection of the Gaza Report that Blank criticises focuses on Israel’s controversial use of “roof knocking,” not on its use of phone calls to civilians located in or near buildings about to be attacked. (The subsection is entitled “Roof Knock Warnings.”) Indeed, the entire point of the subsection is to explain why roof-knocking does not provide civilians with effective advance notice unless it is combined with a phone call or “other specific warnings” (¶ 239). Blank does not challenge the Commission’s conclusion in that regard. She does not even acknowledge it…

Guest Post: The Law of Occupation in the New DOD Law of War Manual

by Gregory H. Fox

[Gregory H. Fox is Professor of Law and Director of the Program for International Legal Studies, Wayne State University Law School.]

In the aftermath of the Iraq occupation, a vigorous debate began over the legitimacy of the Coalition Provisional Authority’s (CPA) vast reform of Iraqi legal, political and economic institutions (see Gregory H. Fox, The Occupation of Iraq, 36 Geo. J. Int’l L. 195 (2005)). Adam Roberts coined the term “transformative occupation” to describe occupations whose very purpose was to alter local institutions. In Roberts’ (and others’) telling, transformative occupations differed from the rapacious and brutal occupations of the WWII era, creating not repressive puppet states but liberal democracies that aligned the occupied state with a host of new international norms. Yet transformative occupations seemed directly at odds with the “conservationist principle,” a term I coined (Fox, Occupation of Iraq, at 199) to describe the traditionally limited nature of an occupier’s legislative authority. Grounded in the Hague Regulations and Fourth Geneva Convention, the conservationist principle held that an occupier did not acquire the central attribute of the ousted regime’s sovereign prerogatives, namely the unlimited ability to alter local laws and institutions.

Proponents of transformative occupations argued that the Iraq model made important progress in bringing occupation law into the 21st century. It took account of the emergence of human rights, democratic politics, anti-corruption and even market-based economics as legitimate concerns of international law. Occupiers giving effect to liberal democratic rights, it was argued, should not be seen as violators of the sovereignty of the occupied state, “but, to the contrary, as facilitator of the exercise of rights recognized by international law.” (Eyal Benvenisti, The International Law of Occupation, 2d ed. 2013, at 349-50).

Opponents (including me) argued that apart from Iraq being the only recent case of a “liberally” transformative occupation, granting occupiers broad legislative powers would represent an unfortunate turn toward unilateralism in the reconstruction of post-conflict states. The UN Security Council has authorized multiple post-conflict reform missions under Chapter VII of the Charter.   Occupiers would have little incentive to seek Council approval for their actions if they could accomplish the same objectives unilaterally. Relatedly, the many fiascos attending the Iraq occupation demonstrated the wisdom of a collective approach to legal and political reform in post-conflict states.

The publication of the new DOD Law of War Manual on June 12 is an important milestone in the debate over transformative occupation. The last iteration of the Manual (FM 27-10, “The Law of Land Warfare”) dated to 1956, so an update was long overdue. Would the Pentagon claim that occupation law now permits Iraq-type reforms? A path to such a claim had already been laid by the United Kingdom, which updated its 1958 manual in 2004. The UK manual provided that an occupier may “repeal or amend laws that are contrary to international law and is also entitled to make changes mandated or encouraged by the UN Security Council.” (§11.11). Specifically, laws may be repealed if they “violate human rights treaties.” (Id. n.15). Would the United States do the same? And if so, would it claim that the traditional view of an occupier’s legislative powers should give way to a liberal democratic imperative that holds, in the words of a CPA legal advisor, that “tyrannical and repressive laws can no longer survive merely for the sake of continuity” and that international law “cannot stand opposed to consensual self-government and the rule of law”? (Brett H. McGurk, Revisiting the Law of Nation-Building: Iraq in Transition, 45 Va. J. Int’l L. 451, 464 (2004-2005)).

Remarkably, the US Manual does not take this path. Its view of occupiers’ legislative authority is quite limited. The powers afforded an occupier derive not from a general reformist imperative or even specific areas of policy such as human rights or democratic governance, but rather “from its war powers and from its duty to ensure public order and safety in occupied territory.” (§11.7).   Repeating almost verbatim language from Article 43 of the Hague Regulations, Section 11.5.2 sets out the traditionally restrictive view of the conservationist principle:

The duty of the Occupying Power to respect, unless absolutely prevented, the laws in force in the country prohibits it from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.

The permissible reasons for changing local law (set out in Section 11.9.2) are also virtually identical to the 1956 version (§369):

The Occupying Power may subject the population of the occupied territory to provisions:

(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

The Manual then lists examples of laws that may be suspended or repealed, and only one arguably serves the purposes of an Iraq-style transformation: provisions “relating to the administration of the law, such as repealing laws establishing racial discrimination or promulgating laws requiring the impartial application of the law by local officials.” (§11.9.2.2). That’s it. No endorsement of the top-to-bottom changes that the CPA made to Iraqi security and military institutions, human rights protections, criminal law and procedure, banking law, tax law, regulation of foreign trade, regulation of private economic transactions, securities law and the status of state-owned enterprises (see Kaiyan Homi Kaikobad, Problems of Belligerent Occupation: The Scope of Powers Exercised by the Coalition Provisional Authority in Iraq, 54 Int’l & Comp. L.Q. 253 (2005); Fox, The Occupation of Iraq, at 208-225). The CPA declared (.pdf) in 2004 that its goal was to create a “stable, democratic Iraq that is underpinned by new and protected freedoms and a growing market economic.” The Manual does not endorse anything close to those goals. To the contrary, it seems to disclaim wholesale transformation as a legitimate goal of occupation law, specifically noting “limitations on the ability of the Occupying Power to alter institutions of government permanently or change the constitution of a country.” (Section 11.4.2).

The Manual is not entirely free from ambiguity on the scope of an occupier’s legislative power. As quoted above, section 11.9.2. prohibits an occupier from “arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.” (emphasis added). This language would seem to allow for non-arbitrary suspensions. As authority for this test, the Manual cites commentary to Article 64 of the Fourth Geneva Convention, which builds on Article 43 of the Hague Regulations by providing that penal laws of the occupied state will continue in force unless they threaten the security of the occupier. But neither Geneva Article 64 nor Hague Article 43 refers to “arbitrary” changes in law; nor is the term used in Pictet’s commentary on Article 64, quoted extensively in the Manual’s footnote to this provision. So the idea of permitting non-arbitrary changes is an invention of the DOD. What scope of action does this test permit? Presumably changes would become “arbitrary” if they did not serve one of the three purposes listed in Section 11.9.2. or amounted to the kind of sweeping constitutional change precluded by Section 11.4.2.

Why did the DOD hew so closely to the traditional approach of 1956? The new Manual suggests one reason by making clear that while occupiers acting unilaterally will have limited legislative powers, those powers can be substantially enhanced by the Security Council:

Acting under the Charter of the United Nations, the U.N. Security Council may also establish authorities or limitations that might interact with those otherwise applicable under occupation law. For example, a U.N. Security Council authorization may provide additional authority for an Occupying Power to govern occupied territory. (§11.1.2.5).

The sole example cited of such authorization is Resolution 1483 on Iraq. Many scholars (though not me) argue that the Council gave the CPA a broad legislative mandate in Resolution 1483.   The debate over 1483 arose because the resolution was a muddled set of mixed signals, resulting, no doubt, from Council members’ lingering anger at the Bush Administration for invading Iraq in the first place. But DOD might well have reasoned that if future occupations do follow a Council authorization for intervention, the occupier would have little trouble having the same Council membership approve a transformative occupation. In many situations, therefore, the Council may simply legislatively override the conservationist principle.

Unfortunately, the Manual makes this point with less than model clarity. Many provisions legitimating acts under occupation law (e.g. §11.10.1.2, §11,8.1 and §§11.11.1 – 11.11.1.4) are footnoted to CPA decrees. If the CPA was acting under Chapter VII then its actions provide no clear support for propositions of occupation law, since, as the Manual itself states, the Council may authorizes legislative authority that would otherwise be prohibited by that law (i.e. the conservationist principle).

Another possible reason for the restrictive approach lies in one of the most common arguments for transformative occupation: that occupiers must give effect to their own human rights treaty obligations in occupied territory. This is the most obvious explanation for DOD’s unwillingness to follow the UK’s more expansive view of an occupier’s legislative powers. The UK is bound by the extra-territoriality jurisprudence of the European Court of Human Rights, which in the Al-Skeini case specifically involved acts of British occupiers in Iraq. DOD was almost certainly eager to distance the US from this position and the Manual reiterates the much-criticized US claim that its human rights treaty obligations do not extend outside US territory (§11.1.2.6).

In my view the Manual does exactly the right thing in holding to a hard line against the transformative occupation. The Security Council has authorized numerous reforms in post-conflict states, and the argument for circumventing Council approval to accomplish the same goals through unilateral action should face a heavy burden of persuasion. I find most of the arguments unpersuasive. If Iraq is to be the test case for this new theory then it stands for exactly the opposite proposition: the Council correctly withheld its approval for the invasion and exerted too little control in Resolution 1483, allowing the CPA to chart a course that most agree was ineffective at best and a disaster at worst. There is thus a deep irony in proponents of transformative occupation arguing that it is necessary to bring occupation law into accord with contemporary international law, for it would incentivize occupiers to avoid multilateral control over post-conflict reconstruction, arguably one of the most remarkable legal innovations of the post-Cold War era.

UN Ombudsperson Kimberly Prost to Leave Post in July

by Kristen Boon

Kimberly Prost, the current UN Ombudsperson, will be leaving her post in mid-July when her term expires.   However, no replacement has been appointed, nor has the UN implemented a transition plan for her eventual successor.   The issue of what will happen to the current cases before the office, or to individuals who are unlucky enough to apply for delisting after July 14 is significant.   It highlights the fragility of this important institution at the UN, and suggests that not all member states wish it to function effectively.

Despite the considerable progress the UN has made in developing the institution of the Ombudsperson, which addresses review and delisting requests for individuals on the Al Qaida sanctions regime, it has become apparent that the institution may soon be synonymous with its first occupant: Ms. Prost.   The institution has not been streamlined into the UN system, and despite its important work, her status has been that of a consultant.  While some UN Member States initiated demarches to try to have her term extended, they were unsuccessful. It is unclear what the future will hold for the institution now that she is departing, which is significant rule of law problem.

The issue was extensively discussed at a recent conference on UN Sanctions at Leiden University in the Netherlands.   The program is available under the committee documents tab here.    In addition to the fragility of this institution, its exclusivity was discussed in detail.   The Ombudsperson’s Office has jurisdiction to review and delist individuals on the Al Qaida sanctions lists, but individuals and entities on the 15 other sanctions lists do not have access to this process. Instead, they may request a review from the Focal Point, which has a far less developed procedure and does not have the characteristics of an independent institution.   A number of countries have argued that the Ombudsperson’s jurisdiction should be extended to other regimes, although politically, it is clear that that if that happens, it would be the various sanctions regimes involving situations in Africa that would benefit, but not in the short or medium term, those involving WMD sanctions.  Information on the focal point is available here. A helpful overview of the differences between the Focal Point and Ombudsperson and links to other documents is available here.

Weekly News Wrap: Monday, June 29, 2015

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

  • Fractious European leaders argued into the early hours on Friday over how to handle over a migrant crisis in the Mediterranean, agreeing a plan to share out the care of desperate people fleeing war and poverty in North Africa and the Middle East.
  • Greek Prime Minister Alexis Tsipras has announced a temporary closure of banks, after the European Central Bank (ECB) said it would not increase additional emergency funding to the country.
  • The suspected Islamist who attempted to blow up a French chemical plant on Friday has admitted killing his manager beforehand, a source close to the investigation said on Sunday, as police linked the suspect to a militant now in Syria.
  • Turkish police fired water cannons and rubber pellets to disperse a gay pride parade in central Istanbul on Sunday, after organizers said they had been refused permission to march this year because of the Muslim holy month of Ramadan.
  • European Council President Donald Tusk urged European leaders to spend more on defense on Friday as deadly attacks in France, Tunisia and Kuwait drove home his point about dramatic changes to the security situation in Europe and its neighborhood.
  • The Swiss government will extradite wartime Muslim defender of Srebrenica Naser Oric to Bosnia, the Federal Office of Justice said on Thursday.

Americas

UN/World

A Bad Weekend at the Office for CNN

by Kevin Jon Heller

First it confused ISIS’s flag with a gay-pride flag depicting various sex toys:

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Then it placed Hong Kong somewhere in Brazil:

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Interested readers may want to apply for fact-checking positions at CNN. I hear they’re hiring.

Reading and Learning from Mike Lewis

by Jens David Ohlin

I met Mike Lewis during my first year of law teaching at Cornell Law School. Mike was scheduled to give a lecture at the law school about torture and I was invited to give a commentary on his presentation. Mike had pre-circulated the paper that the presentation was based on. I disagreed with his thesis and pressed him sharply on its details during the event. His thesis had the virtue of proposing a very workable standard for defining torture, but I felt it yielded counter-intuitive results for particular reasons that I articulated during the event. Afterwards, I was worried that I might have offended Mike, but it was not the case. Immediately after he got home, he wrote me a lovely note saying how much he appreciated our substantive exchange and was grateful that I taken the time and energy to respond to his scholarship. He was a true scholar and intellectual.

In the ensuing five years, I spent much time reading and learning from Mike’s other articles on IHL. This came at a crucial time for me as I was broadening my research agenda from exclusively ICL to include a wider range of IHL and law of war issues as well. I became heavily involved in debates about drones, targeted killings, targeting in general, and the relationship between IHL and human rights law. In all of these areas, I was heavily influenced by Mike’s explanations and positions that he articulated in his many law review articles. And I should hasten to add that on most of these crucial questions I was in agreement with Mike. Although I disagree with the Obama Administration’s legal positions on a few issues (definition of imminence, over-reliance on covert action and its consequences, use of the vague and indeterminate “associated forces” moniker, etc.), the general tenor of my scholarship has been to recognize that the deep architecture of IHL continues to be fundamentally Lieberian. I came to this view of IHL by reading a great many sources, but I would rank Mike’s articles near the top of that list. Simply put, I would not hold the views that I hold today if I had not been so richly educated by reading Mike’s work.

I spent some time with Mike at the ethics and law of war conference that Kevin Heller mentions in his remembrance. Mike was full of plans and we discussed the possibility of collaborating on future projects on the subject of the privilege of combatancy–a common interest for both of us. We hosted him at Cornell University last year as part of our university-wide Lund Critical debates series, where he debated Mary Ellen O’Connell on the use of drones. The video of the event can be found here; Mike’s presentation to the packed auditorium was both insightful and extremely clear. He had the ability to translate complex legal material to a wide audience, and Mary Ellen’s thoughtful critique on U.S. policies made for a lively debate between the two of them.

As I set about working on a new collected volume on remote warfare, I emailed him in October to commission a chapter from him; he enthusiastically responded in the affirmative. When just a few days ago I sent him a contributor agreement for him to sign on June 5, he informed me of his illness and said he could not definitively commit to the project anymore but was hopeful that he might still produce a chapter for it. Though he was still optimistic and making important plans for the future, I understood the nature of the diagnosis and prognosis because he gave me the name of his illness, but I labored under the illusion that we had more time. I was shocked when I learned that the end had come so quickly; I was unprepared for the news even though in the back of my mind I inferred the seriousness of the situation. I am devastated that we have been denied his voice for what should have been another 50 years. It highlights for me the fragility of life and our time on this earth and the ultimate unfairness by which some people are denied the privilege of a long life. But I take some comfort in knowing that he loved being a law professor and that we will be reading his work in the years and decades to come.

A Sad Farewell to Michael Lewis

by Kevin Jon Heller

As regular readers know, Mike and I often sparred on the virtual pages of Opinio Juris. By and large, we did so civilly. But on occasion — such as when we were debating whether the Bush admininstration’s “enhanced interrogation” regime qualified as torture — things became heated. I made him mad. He made me mad. I doubt either of us expected to like each other if we ever met in the brick-and-mortar world.

But like each other we did. Mike and I met only once, on the first day of a fascinating conference on ethics and the laws of war. We recognised each other from across the room as we were getting settled, and he quickly stomped toward me. I was a bit hesitant — but then Mike gave me a big hug and said how great it was to meet me and how much he had enjoyed our debates. It was a really wonderful moment.

It fills me with sadness to know there will be no such similar moments again. But I am very glad I had the opportunity to meet Mike — and I will remember our discussions, both virtual and real, for a long time.

Requiescat in pace, Mike.

Farewell to Professor Michael Lewis: A Tireless and Important Voice on the Law of Armed Conflict

by Julian Ku

I want to join the others in the legal blogosphere in expressing my shock and sadness at the loss of Professor Michael Lewis.  Mike and I were fellow travelers on many legal and political issues, and I learned long ago that I would learn more from him on the law of armed conflict than he could learn from me.

As Professor Tom Lee of Fordham notes in his comment to Chris’s post below, Mike was an experienced naval aviator who overlapped in his time of service in the Navy with Tom.  Mike brought operational insights to the law of armed conflict, as his article on aerial bombardment during the First Gulf War in the American Journal of International Law showed.  But his background in the Navy was only a part of his identity as a legal scholar.  Mike was steadfast in working to develop a workable approach to the law of armed conflict that would satisfy both operational concerns and also strategic policy goals.

Mike was truly indefatigable. He would go anywhere, or take to any venue, to debate or discuss his views on LOAC and drone strikes in particular. Of course, he did not find many folks who agreed with him, but he always treated his interlocuters with respect and dignity. He wanted to debate, argue, and continue to debate and discuss.  He would do this for even the most sensitive and controversial issues.

Indeed, I first met Michael when he recruited me to speak on a panel he organized at the annual meeting of the American Association of Law Professors on one of those topics:  U.S. interrogation policies and torture.  I was not exactly excited to be on the panel, given the reaction I was sure we would receive, but Michael worked hard to keep our discussion civil and useful.  I was impressed with his willingness to tackle this topic, and his willingness to take a controversial and unpopular approach.

Michael was an important and thoughtful academic voice on some of the most important legal questions facing us today.  I will miss him.

 

Remembering Mike Lewis

by Chris Borgen

We are very sorry to mark the passing of Professor Michael W. Lewis of Ohio Northern University.

Mike spoke and wrote with rare authority as someone who was not only a leading international law and national security scholar who engaged in broader public discourse (see his many debates, presentations, and interviews), but also as a former Naval aviator and TOPGUN graduate, who had flown F-14’s in Desert Shield and enforced no-fly zones over Iraq.

More than most, Mike appreciated how international law was actually operationalized.

We at Opinio Juris benefited from Mike’s frequent contributions to the discussion, with posts and comments on issues such as the relationship between Additional Protocols I and II,  on various aspects of drone warfare (see, for example, 1, 2, and 3), and on  “elongated imminence” and self-defenseBobby Chesney and Peter Margulies have also posted remembrances about Mike Lewis at Lawfare.

On a more personal note, I remember the first time I met Mike in person, perhaps ten years ago, at a dinner at a national security law conference. He was a great conversationalist, speaking about the need to crystallize key principles of international law in a manner that would be immediately usable by the pilots and flight crews who were actually flying sorties.

His voice was unique and it will be missed.

Weekly News Wrap: Monday, June 22nd, 2015

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

UN/World

  • Kakuma camp in northern Kenya is expanding by nearly a half, the U.N. refugee agency said on Saturday, to house refugees fleeing nearby South Sudan as hopes fade for peace in the world’s newest nation.
  • The UN refugee agency has said that the record number of refugees, asylum seekers and internally displaced people globally is “a reflection of a world in chaos“.

Events and Announcements: June 21, 2015

by Jessica Dorsey

Announcements

  • On 22 June 2015,  University Paris 8 Research Centre “Forces du droit” organizes a one-day conference entitled  “Forms of International Law – Insight into the Outcomes of the Work of the International Law Commission”. The conference, which will take place at the French Ministry of Foreign Affairs Conference Centre (27, rue de la Convention – 75015 Paris), intends to address the evolution of formal outcomes given to ILC legal products, from treaties to soft law instruments. Academics, experts of the Commission’s work but also practitioners – such as legal advisers from diplomatic services and members of international courts and tribunals – will gather to address this phenomenon, discuss its causes and potential consequences as to the current development of international law. The Conference will include, among its speakers and chairs, the President of the ICJ, Judge Ronny Abraham, ICJ Judge Giogio Gaja, the Legal Counsel of the United Nations, Mr. De Serpa Soares, the Legal Counsel of the French Ministry of Foreign Affairs and International Development, Mr. François Alabrune, and several prominent figures in the field of international law. More information and details for registration can be found here.
  • 7 PhD Fellowships within legal research are available at the Faculty of Law of the University of Oslo. The deadline for application is 1 September 2015. You can find more information here.

Call for Papers

  • The Asian Society of International Law was established in 2007. Following four successful biennial conferences, the Fifth Biennial Conference of the Asian Society of International Law will be held in Bangkok, Thailand on Thursday and Friday, 26 and 27 November 2015. Theme of the Conference: Nowadays governments, scholars and civil society in Asia are engaged enthusiastically in the development of international law in the region. Asian countries today witness more regional cooperation and economic integration, for instance, through the launch of the ASEAN Economic Community (AEC) and the Asia Infrastructure Investment Bank (AIIB), etc. The conference will confront the changes that will ensue from these developments in the region, and provide a forum to share perspectives on legal issues from around Asia and from beyond. To this end, proposals for papers are now being invited. Please click here for more information.

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.