- Senegal Justice Minister Aminate Toure and Chadian Justice Minister Jean-Bernard Badare agreed to allow Senegalese judges to investigate various situations in Chad ahead of the prosecution of former Chadian dictator Hissene Habre.
- Fifty countries and organisations are gathered in London for an international conference aimed at preventing Somalia from slipping back into abject lawlessness.
- North Korea has removed two missiles from launch sites on the country’s eastern coast, after weeks of concern that Pyongyang had been ready for a test-launch.
- Israeli Prime Minister Benjamin Netanyahu has quietly curbed new building projects in Jewish settlements, a representative from Peace Now, an Israeli watchdog group and media reports said on Tuesday, in an apparent bid to help U.S. efforts to revive peace talks with the Palestinians.
- An influx of people from crisis-hit southern European countries like Spain, Italy and Greece has led to the biggest surge in German immigration in nearly 20 years; the number of immigrants last year was up 13% from the previous year.
[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]
When assessing the legality of drone strikes, attention is often focused on the State that carries out the strike—usually the United States. On May 8th, for example, the U.S. Congressional Progressive Caucus Peace and Security Taskforce held a hearing on the United States use of weaponized drones abroad and heard testimony that detailed specific incidents of civilian harm and encouraged transparency, after-action investigations, accountability, and greater fidelity to traditional understandings of international law. (Harold Koh, the former Legal Advisor to the U.S. Department of State, made similar pleas around transparency during his May 7 speech at Oxford.)
These are all critical points that Congress and others should be hearing, but I would like to shift the focus—away from U.S. responsibilities and on to the responsibilities of the States that consent to the use lethal force on their territories. This is part of the “drone” discussion (or, to be more accurate, the “extraterritorial use of lethal force outside an active battlefield” discussion) that has not received enough attention. Yet, it is worth exploring how the legal responsibilities of the consenting State interact with the notion of what I’ll call “transnational non-international armed conflict (NIAC) targeting.”
“Transnational NIAC targeting” occurs when a State, which is engaged in a NIAC in one country, targets with lethal force an enemy fighter who happens to be in another country. Or, to quote John O. Brennan when he was Assistant to the President for Homeland Security and Counterterrorism, it is based on the notion that, “[t]here is nothing in international law that …prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” (i.e., an Al Qaeda commander who is fighting the United States in Afghanistan but has traveled to Yemen seeking recruits and cash for arms.)
First, I should make clear that lethal targeting outside an active battlefield is, in certain circumstances, permissible under international law…
The Permanent Court of Arbitration (PCA) recently released its 2012 annual report, which documents its remarkable institutional transformation. Established in 1899, the PCA is an intergovernmental organization based in the Peace Palace in The Hague. Although it has a long and interesting history, including housing the Iran – U.S. Claims Tribunal for a number of years, over the last 12 years the PCA has seen its workload and subject matter scope increase exponentially. As Secretary General of the PCA, Hugo Siblesz, noted in a speech in February:
“As of this moment, the PCA is acting to administer 71 pending cases, including 5 inter-State arbitrations, 48 arbitrations under bilateral or multilateral investment treaties, and 18 arbitrations in contract disputes involving States, State entities, or international organizations. In total, 152 arbitrations have been brought to the PCA in the past 12 years, in comparison with only 34 cases administered in the first one hundred years of the organization. In inter-State arbitration, the PCA has recently seen more activity than at any other point in its history – including the flush of arbitrations brought to the PCA in its early days before the First World War. And in disputes between States and private parties, the PCA has now handled more arbitrations under the UNCITRAL Rules than any other institution, developing in the process a singular experience in the application of those Rules.”
There was an extremely interesting panel on the PCA organized by ASIL in February, focusing on the PCA’s reinvention. The PCA is an active and multi-faceted institution that acts as a registry and/or appointing authority in a range of international law issues, including public international law disputes, investor-state arbitrations, commercial contract disputes, law of the sea arbitrations under Annex VII of UNCLOS, and energy charter treaty disputes. It has even administered an arbitration between a State and an armed movement within its territory (namely the Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army in 2008 – 9).
One institutional feature of note is that PCA offers a development assistance fund for states that require financial aid for use of PCA’s services. Member states donate to the fund, and the 2012 report notes 8 states – 5 from Africa, 2 from Asia and 1 from Latin America have received assistance thus far. In addition, the PCA has just adopted new procedural rules for disputes involving at least one State, state-controlled entity, or international organization. An interesting addition here is Article 34(7) which requires states to report on execution of the award, in an attempt to improve compliance.
Amb. Siblesz noted that dispute resolution in international matters is on the upswing generally, which is a trend to note in terms of the field generally. Nonetheless, one aspect of the PCA’s comparative success in attracting cases appears to be its ability to provide high quality, quick, and confidential services, in a range of international law matters. Thus in terms of lessons to be learned, generality rather than speciality appears to be aiding the PCA in its competitive bid. Its general successes are also leading some to speculate whether it could assist the UN on a more permanent basis with regards to mediation and arbitration of international matters. Thus, for example, might the PCA be used by the UN as a go-to institution for international dispute resolution generally, perhaps supplementing or even replacing in certain cases, the usual system of special envoys and representatives?
- South Korea has dismissed the plan from North Korea to reopen the joint industrial complex shared by the two countries, calling the demands from Pyongyang “incomprehensible” and urging North Korea to come forward for dialogue rather than making such demands.
- The Mannheim Regional Court in Germany ruled in favor of Motorola Mobility, a subsidiary of Google, against Microsoft in a patent dispute.
- Nawaz Sharif, seen as the front-runner in Pakistan’s election race, said the country should reconsider its support for the U.S. war on Islamist militancy and suggested that he was in favor of negotiations with the Taliban.
- Syria’s information minister has warned that Israeli air raids over the weekend against three targets on the outskirts of Damascus “open the door to all possibilities.”
- NPR has a post on the hidden cost of the US drone program.
This according to the Commission of Inquiry on Syria, which has considerable investigative ability. Reuters:
(Reuters) – U.N. human rights investigators have gathered testimony from casualties of Syria’s civil war and medical staff indicating that rebel forces have used the nerve agent sarin, one of the lead investigators said on Sunday.
The United Nations independent commission of inquiry on Syria has not yet seen evidence of government forces having used chemical weapons, which are banned under international law, said commission member Carla Del Ponte.
“Our investigators have been in neighboring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated,” Del Ponte said in an interview with Swiss-Italian television.
“This was use on the part of the opposition, the rebels, not by the government authorities,” she added, speaking in Italian.
Recent news reports indicate that the Obama administration has been rethinking its opposition to arming the Syrian rebels. The Commission’s revelations, if true, not only complicate that idea but also deprive those who (in my view misguidedly) want to invoke the responsibility to protect to justify military intervention in Syria of one of their most potent rhetorical weapons. It’s easy to justify intervening in a civil war when one side is “good” and the other is “bad.” The situation is much more complicated, however, when a civil war involves two bad sides, even if one side — here, clearly the Syrian government — is worse than the other.
PS. As Ty McCormick points out at FP.com, the Commission’s findings would seem to validate Obama’s unwillingness to conclude — as demanded by the British, French, and Israelis — that the Syrian government has been responsible for using chemical weapons.
It’s the 1949 Geneva Convention on Road Traffic (text at p. 3 of pdf; here’s the UN treaty collection history, signatories, reservations, etc.; here is the Wikisource text of the treaty, which on quick read is accurate) which seeks to promote road safety by establishing uniform rules across borders. This includes provisions for an international driving permit as well as for cross border recognition of foreign drivers licenses (Florida got itself into problems earlier in 2013 when it issued new regulations requiring foreign drivers, including Canadians, to hold a valid international driving permit; it quickly reversed course). There are later treaties, particularly the 1968 Vienna Convention on Road Traffic, which replaces the 1949 Geneva Convention for contracting states, but it has only 70 ratifications, and the US is not among them, though it is party to the 1949 agreement.
The 1949 Geneva Convention on Road Traffic as well as later agreements on automobiles, licensing, road rules, etc., are probably going to come under greater scrutiny in the next few years on account of the rise of autonomous, self-driving vehicles – the famous Google cars. As Bryant Walker Smith of Stanford’s Center for Internet and Society notes in a report last November, “Automated Vehicles Are Probably Legal in the United States,” the 1949 convention provides, at Article 8, that every vehicle have a driver who is “at all times … able to control” it. Smith says in the report that this requirement is likely satisfied if a human is “on the loop” – i.e., able to intervene in the automated vehicle’s operation. That will likely work as a solution for some period, but the real value of autonomous cars is supposed to eventually be, not when they have a driver ready, alert, and able to take the wheel from the computer, but instead when they are transporting people who can’t or shouldn’t drive: the elderly and infirm, children, and … inebriated undergraduates.
Calls for Papers
- The Editorial Team of the Latin American Journal of International Trade Law (LATAM Journal) is currently considering manuscripts for publication in Volume 1 Issue 2. The Journal welcomes contributions in English and/or Spanish on the various aspects of International Economic Law and International Commercial Arbitration. For the criterion on the submission of contributions, please visit our website. The deadline for submissions is July 31, 2013. The team is also pleased to announce that the inaugural issue is available online for free.
- The 2013 ILA-ASIL Asia-Pacific Research Forum will take place in Taipei, Taiwan on May 15-16, 2013. The program is available here. Questions can be directed to Professor Pasha Hsieh, Research Forum co-organizer.
- The Canadian Bar Association’s International Law Section is organizing its 2013 International Law Conference on Friday June 7th in Ottawa. The title of this year’s conference is: Emerging Issues in International Corporate Social Responsibility, Corruption and Compliance. Registration is available here.
- The Kwantlen Institute for Transborder Studies (ITS) and Political Science Department, the Non-State Actor Committee of the International Law Association, International Law Association – Canada, the Leuven Centre for Global Governance Studies, and the Flemish Fund for Scientific Research Belgium are organizing a joint conference on Non-State Actor Responsibilities: Empirical Findings and Theoretical Considerations in Vancouver on June 26-28, 2013. A programme and more information is available here.
Last week’s post can be found here. If you would like to post an announcement on Opinio Juris, please contact us.
I’ve seen some strange reality TV in my time, but (mock) picking the next Palestinian head of state?
The hit show, called simply The President, has grown out of widespread frustration among Palestinians at their own moribund politics in the real world.
The current president of the Palestinian Authority, Mahmoud Abbas, remains in office four years after his mandate expired.
His party, Fatah, rules over the West Bank while in Gaza, Hamas, the Islamist movement labelled a terrorist organisation by many countries in the West, reigns – also years beyond the mandate it won in 2006.
The Palestinian assembly hasn’t met for many months. The roster of leaders hasn’t changed for decades.
Part Apprentice part X-Factor, viewers are gripped by a show in which they get to chose who should be their next president.
Enter Raed Othman, the director general of the Ma’an broadcast network.
“I thought of this programme because we have to show that the Palestinian people understand and want real democracy. We want elections – real elections. But if we cannot have them then we can do our own,” he said backstage during the filming of the latest episode of his show which has whittled 1,200 potential presidents to 16.
He added: “There are a lot of people who say we don’t have leaders, so we need to prove to them that there are a lot of leaders in Palestine. We want to teach the people that democracy is possible whenever we want”.
Contestants are filmed taking on tasks – being an ambassador to a European country for a day, running a major corporation, taking questions from foreign and local journalists, even how to inspect guards of honour.
They are then put through the ringer by a panel of judges, among them leading politicians like Hannan Ashrawi, a former spokeswoman for the Arab League. Viewers combine votes sent in by text message with the judges’ marks in early rounds.
The winner doesn’t actually become President; he or she just gets a car. Then again, considering the sorry state of Palestinian politics, that’s probably a more desirable outcome.
This week on Opinio Juris, the debate on Kiobel continued. Katherine Florey pointed out how the decision will deepen the divide between state and federal approaches to extraterritoriality issues. Ken Anderson argued that the ATS should be understood as the “law of the hegemon”. Peter agreed with Samuel Moyn that more attention to corporate social responsibility regulation could potentially have a broader impact in improving human rights than high profile ATS cases. Corporate social responsibility was also central to Peter’s post on the impact of recent tragedies in the Bangladesh garment industry on voluntary corporate codes.
Eugene Kontorovich wrote a guest post on the recent decision of a French Court of Appeals rejecting claims that the contract between Alstom Transport and the State of Israel for the construction of the Jerusalem Light Rail was illegal due to a violation of international law. Disagreeing with Eugene, Kevin pointed out that the Court of Appeal is silent about the possibility of a war crime under the Rome Statute.
On another controversial dispute involving a big corporation, Roger wrote about an Ontario Court’s decision to dismiss the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada.
In news from international courts, Julian was surprised by reports about the ICJ Registrar calling the Bolivia’s application against Colombia “impeccable“, since he thought Bolivia’s case was ridiculously weak. Should the case reach the merits and go against Colombia, chances are though that we’ll end up with Colombian complaints about biased judges after the conclusion of the case, as it did for the recent decision in its case against Nicaragua.
Turning to the ICC, Kevin was troubled by Judge van den Wyngaert’s decision to withdraw from the ICC’s Uhuru Kenyatta case, and followed up with further thoughts. He also congratulated Leiden for winning the ICC Moot Court.
In other posts, Julian pointed out how China is now also pushing the boundary with India, and asked whether force feeding of detainees on a hunger strike is always illegal. Kevin noted with horror a quote from Ari Fleischer on the difference between Nazis and terrorists, and recommended Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists
As always, we provided news wraps and a list of events and announcements. Many thanks to all our “younger” readers for the many New Voices abstracts. It’s wonderful to see such a great response! Jessica and I are working through the submissions and plan to finalize the selection by mid-May.
Have a nice weekend!
Ari Fleischer, former Bush press secretary, explaining why terrorists are more dangerous than Nazis:
They [the Nazis] followed the law of war. They wore uniforms and they fought us on battlefields. These people are fundamentally, totally by design different. And they need to be treated in a different extrajudicial system.
Noted with horror but without comment.
Peter beat me to the punch in commenting on Samuel Moyn’s interesting take on the ATS and Kiobel in Foreign Affairs, but I’m going to add a somewhat different point from Peter’s about what the body of ATS law has meant over the past few decades. I didn’t intervene in the earlier discussion about Kiobel because that discussion seemed to me properly focused mostly on the internal legal aspects of the decision – everything from jurisdiction to state courts, and much else besides. I want to raise something external to Kiobel and the ATS as “law” – the distinction between international law and what (in various postings here and there) I’ve referred to as the “law of the hegemon.”
One way of looking at the ATS, including the body of cases built up over the years, is that it is “international law.” Of course that’s not literally true; it is a domestic statute that refers to international law as the basis of some form of liability; violations of treaties or the law of nations. But in a broader sense – the sense in which its supporters have long seen it – the ATS offers a domestic law vehicle by which to work out, interpret, express and, perhaps most important, make effective the requirements of international law.
This is surely the sense that, for example, Judge Jack Weinstein had when he opened the ATS hearing in the Agent Orange case ten years ago – this court sits, he said, in some fashion as an international court. Sitting in the courtroom, it was entirely plain that he both took seriously and took real pleasure in seeing this District Court as sitting in judgment on the same types of crimes as raised at Nuremberg. There are several practical problems for this broader view, of course – how to figure out the relationship between the domestic law piece of the statute and the international law piece, for one.
Another, however, is that if this is supposed to be the working out in some broad sense of “international law” in American courts and using the tools available to American law, how does one keep the link between international law and its sources, processes, standards of interpretation, etc., as they exist in the international arena – and the application of this in an American law setting that has its own sources of authority, standards of interpretation, etc. It’s fine to say that the ATS is the working out of international law in US courts, but international law is made in the international framework and evolves according to things that are different from and quite alien to the American legal system. A telling example of the problem is found simply in the status of US court cases interpreting the ATS and, in the process, interpreting features of international law in ways that bear little relationship to how the international community might do it, now or in the future. Yet in an American domestic law system, those distinctively US cases have greater authority than the international authorities.
One can say that this is precisely the problem of the American court system in dealing with human rights cases; it ought to recognize the international law sources and authorities as such, rather than privileging its own processes. But this is hard, given that plaintiffs want simultaneously to reach to the special features of the US litigation system to achieve their aims; those special features of the US litigation system include many things, such as civil liability, corporate liability, etc., that don’t obviously exist in the international system. It isn’t likely that one can pick and choose in the most favorable way – whether one is the plaintiff or the defendant – and if you go with the American system, you take its doctrine of sources, methods of interpretation, and much else besides, even as it applies to international law questions. But those don’t match up very well with how the “international” actors in international law see those fundamental questions. The questions are not substantive or procedural in the usual sense – they are, rather, the fundamental doctrines of authority, precedent, methods of interpretation.
A better way of seeing the law of the ATS, it has long seemed to me, is to treat it not as a particular state’s working out of international law in its courts, but rather a quite different category. It seems to me best understood as the hegemonic power working out the law of the hegemon in ways that are intended to be somewhat parallel to “international law” on these issues. There is a shared impulse rooted in morality, but what the hegemon does is within the terms of its own legal system. It depends in large part upon the extent to which the hegemonic power is willing to allow the capital of its power to be exercised roughly to these ends – and the extent to which other important actors are willing to go along as a sort of rough way of getting international law actually enforced. (more…)
ABC’s Univision reports on this op-ed by former Colombian foreign secretary and former vice justice minister, which seems to accuse shadowy Chinese business interests of influencing the recent ICJ decision in Nicaragua v. Colombia. Here is the crux of the alleged wrongdoing (or at least shady conduct):
…in November 2012, the ICJ issued a ruling that certified that most of the contended area belonged to Colombia. Nicaragua however, was awarded an area of nearly 7,500 square kilometer.
Nicaragua needed part of the awarded area to be able to build the massive inter-oceanic canal the government is envisioning, according to Sanín and Ceballos. The canal is set to be built in 10 years at an estimated cost of nearly $30 billion.
The alleged problem is that one of the judges who delivered the ICJ’s decision is Xue Hanqin, a Chinese national who apparently knew the Nicaraguan ambassador to the court from a previous work position. The Colombians argue that Xue Hanqin probably knew about the canal and should have recused herself because her government had a major interest in the ruling’s outcome. Since she didn’t there are growing suspicions that she might have been working to advance China’s economic and geopolitical agenda.
My Spanish is even vaguer than my French, but, accepting the Univision description as accurate, than this seems like a weak attempt to discredit the ICJ decision. To be sure, it is possible that Judge Xue knew the Nicaraguan ambassador from her time as a diplomat, and it is also quite likely that she knows about the Chinese government’s interest in a Nicaraguan canal.
But none of that seems to be close to enough to require a recusal or its equivalent. To be sure, the ICJ’s practice on recusal is pretty lax, and could use some further development. But even if you think that the Egyptian judge should have been recused from the Israeli Wall advisory opinion, at least the accusation there was about statements made, or views held, by the individual judge. It was not a claim that he should recuse himself because the Egyptian government opposed the Wall.
But the Colombians are essentially saying that because the Chinese government would have favored the Nicaraguan case, and had a material interest in a favorable outcome, its judge should have recused herself. That could not be the rule, since it would require recusals all the time. Now, if they had evidence Judge Xue held shares in a Chinese company that was building the canal, that would be something. But there is no such accusation, as far as I can tell. (Note: Colombia did not even request her recusal).
Is Judge Xue biased? I suppose she might have been. But she would not have been much more biased than any of the other judges on the ICJ. With 15 judges, her bias could not have been all that important in the ICJ’s unanimous opinion anyway.