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Guest Post: A CISG Question

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law.]

The U.N. Convention on Contracts for the International Sale of Goods (CISG) sets forth substantive rules of contract law to govern contracts for the sale of goods between parties who have their places of business in different CISG countries. See Art. 1. The United States is one of 83 countries that have joined the CISG. According to figures from the Census Bureau, U.S. trade in goods with CISG countries exceeded $2.4 trillion in 2013, which means a lot of contracts to which the CISG potentially applies. (I have written about the need for American contracts students to have some exposure to the CISG here.) It is possible for contractual parties to exclude application of the CISG (see Art. 6), but they must do so expressly. A choice of law clause stating that the contract is governed by “the laws of California,” for example, would not be sufficient. See, e.g., Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d 1142, 1149-50 (N.D. Cal. 2001).

The CISG entered into force with respect to Brazil on January 4, 2014. But treaties do not become effective as domestic law in Brazil until approved by executive decree, which did not happen until October 16, 2014. See Decree No. 8.327. Trade in goods between the United States and Brazil averages $6 billion a month, so a lot of contracts for the sale of goods between Brazilian companies and U.S. companies were presumably entered between January 4 and October 16.

What law governs those contracts (or more precisely, those that did not effectively exclude application of the CISG)? It may well depend on the forum in which suit is brought. My guess is that a Brazilian court would not apply the CISG to these contracts because it was not effective as a matter of Brazilian law. But I expect that a U.S. court would apply the CISG to these contracts because the treaty was in force between Brazil and the United States as a matter of international law and binding on U.S. courts under the Supremacy Clause of the U.S. Constitution. If the parties have chosen arbitration, the answer should turn on the parties’ (presumed) intent, but that may be hard to fathom in a case like this. In any event, this situation presents a good example of the need for countries to make sure that treaties to which they are bound internationally are properly implemented in their domestic laws.

Guest Post: Pesky Questions of International Law: What’s the basis for air strikes in Syria?

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor of Global Affairs at NYU-SPS.]

President Obama’s speech on September 10th raised many legal issues, including, whether there needs to be added Congressional authorization for the use of force, or one can utilize the pre-existing Authorization for the Use of Military Force (“AUMF”) that Congress granted after 9/11 (see Deborah Pearlstein’s post and Peter Spiro’s).  But his speech also raised profound questions at a second level – that of public international law (touched upon by Kevin Jon Heller).

This may not seize the attention of the American public, but surely coalition partners would ask these questions:  what was Obama’s basis for the legality of air strikes in Syria?

It is somewhat troubling that President Obama took the step of supporting air strikes in Syria, without articulating any clear legal foundation at the international level.  Just to be clear, the issue of air strikes in Iraq against the Islamic State in Iraq and Syria (“ISIS”) does not raise similar questions, as Iraq had earlier consented to the use of force.

There are a number of possible legal rationales for air strikes in Syria, but the U.S. needs to make the case under one of these grounds.  Such a legal foundation was not well-articulated in President Obama’s speech.  (more…)

ISIS versus Khorasan

by Jens David Ohlin

The United States continues to launch airstrikes against ISIS. Not only is it unclear if the airstrikes are working to dislodge ISIS from its territory, but recent press reports suggest that ISIS is not even the most important threat facing U.S. interests.

The New York Times quotes Director of National Intelligence James Clapper as saying that the militant group Khorasan poses as much threat to the United States as ISIS:

Some American officials and national security experts said the intense focus on the Islamic State had distorted the picture of the terrorism threat that has emerged from the chaos of Syria’s civil war, and that the more immediate threats still come from traditional terror groups like Khorasan and the Nusra Front, which is Al Qaeda’s designated affiliate in Syria.

Mr. Fadhli, 33, has been tracked by American intelligence agencies for at least a decade. According to the State Department, before Mr. Fadhli arrived in Syria, he had been living in Iran as part of a small group of Qaeda operatives who had fled to the country from Afghanistan after the Sept. 11 attacks. Iran’s government said the group was living under house arrest, but the exact circumstances of the Qaeda operatives were disputed for years, and many members of the group ultimately left Iran for Pakistan, Syria and other countries.

In 2012, the State Department identified Mr. Fadhli as Al Qaeda’s leader in Iran, directing “the movement of funds and operatives” through the country. A $7 million reward was offered for information leading to his capture. The same State Department release said he was working with wealthy “jihadist donors” in Kuwait, his native country, to raise money for Qaeda-allied rebels in Syria.

The argument for this assessment, I suppose, is that while ISIS controls a large swath of territory in Iraq and Syria, their ambitions are currently focused on territorial expansion and local control. Although they have foreign fighters with foreign passports (and thus easy access to foreign territories), they have so far demonstrated little interest in launching terror attacks in the United States. Of course, that might change in the future once ISIS consolidates control over its territory, but for now it is an accurate statement of the current state of affairs.

In contrast, Khorasan is reportedly more focused on traditional terrorist goals: launching attacks against western countries. The group is led by a former Osama Bin Laden associate named Muhsin al-Fadhli. He was allegedly responsible for, among other things, the bombing of a French oil tanker, MV Limburg, in 2002. (A military commission recently dropped charges against defendant al-Nashiri in connection with that bombing, holding that the government had introduced no evidence to show that the MV Limburg bombing was perpetrated in connection with the armed conflict against al-Qaeda, a necessary predicate for the commission to exercise jurisdiction over the case.)

Americans often ignore the internal disputes between these various organizations, producing a vastly oversimplified portrait of the local political situation. In addition to ISIS and Khorasan, each with different agents, al-Qaeda has its own syndicate in the region, the Nusra Front, which is fighting for control over Syria against both ISIS and the government regime of President Assad. One point that the Times article makes is that the U.S. military intervention against ISIS might end up helping the Nusra Front. After the US degrades the military capabilities of ISIS, the Nusra Front might consolidate its control of the anti-Assad faction and inherit any opportunistic fighters now working for ISIS. The only way to prevent this from happening is to make sure that the moderate opposition is poised to “fill the vacuum” once ISIS is weakened. However, I’m not terribly optimistic that the US can ensure that their assistance to the moderate opposition ends up in the right hands. We have enough trouble controlling government bureaucracy in our own country; doing it in war-torn Syria seems near impossible.

As for Khorasan and its relative threat-level versus ISIS, only time will tell which group is most interested in launching terror attacks in the West. Al-Fadhli’s association with Bin Laden and his alleged participation in previous terror attacks suggests that Khorasan, and the threat it represents, should be taken seriously. The fact that it does not carry the “al-Qaeda” moniker should not confuse anyone regarding the threat that it represents.

All of this suggests that US policy might be too reactive. The Obama administration only put the ISIS threat on the front burner after the beheadings generated mass outrage. The method it selected to fight ISIS (airstrikes) does not appear to be working, and ISIS continues to gain territory and execute prisoners. On top of that, greater dangers lurk in the extremist groups that have been pushed off the front pages by recent events.

On the Perennial U.S. War Powers Fight

by Deborah Pearlstein

For readers interested in the domestic U.S. law and history of how the U.S. government authorizes the use of force abroad, I had a little piece this weekend over at Daily Beast summarizing the state of play. Among other things, it laments not only the executive practice of not going to Congress as often as it should, but also the gradual loss of other checks on the war power the Constitution’s drafters expected would operate. Here’s a snippet.

The framers reasons for requiring congressional assent for engagements beyond [self defense] reflected their belief that war was “the greatest of national calamities” and should therefore require the agreement of more—not fewer—members of government. More, it was motivated by a commitment to political accountability in a democracy. Rejecting the British “new model” army of Oliver Cromwell and its associated tradition of tyranny and oppression, the framers thought our armed forces should be manned by the citizen-soldier, one incapable of being turned to oppress The People of which he was part. The People themselves would be called up to fight. The Constitution would require Congress publicly to authorize military expenditures “in the face of their constituents” every two years. And only Congress could vote to take the country into war. War would and should be impossible in a free society without The People and their representatives’ consent. Fast forward two centuries, and all these checks have long since ceased to function. The citizen-soldier gave way to national conscription, which in turn gave way to today’s all-volunteer force. The requirement that Congress publicly authorize all military funding has been weakened by today’s vast reliance on private contractors, making it easier for legislators to shield huge swaths of military-related spending from public view by lodging them in less visible appropriations for other departments…. Madison assumed individuals in power would be ambitious, would want to assert their views, and would want to use their power to affect change. Ambition in Congress would counteract ambition in the Executive, and the daily struggle would help keep all the branches in check. But ours has become a Congress lacking all ambition, preferring to hide in the shadows of presidents whose own political courage sometimes fails. Together, they have helped make it ever more possible for the American people to neither feel nor bear the costs of war.

Weekly News Wrap: Monday, September 22, 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

  • An American recently sentenced to six years hard labor by a North Korean court pretended to have secret U.S. information and was deliberately arrested in a bid to become famous and meet U.S. missionary Kenneth Bae in a North Korean prison, state media said on Saturday. 

Europe

Americas

  • The United States will not stand in the way of Venezuela securing a temporary seat on the U.N. Security Council in 2015-16 after Latin American and Caribbean states unanimously endorsed its bid, U.N. diplomats and U.S. sources say. 

Oceania

UN

Events and Announcements: September 21, 2014

by An Hertogen

  • The Junior International Law Scholars Association (JILSA) is holding its annual meeting on Friday, January 23, 2015, at the University of Miami School of Law.  JILSA is an informal network of junior scholars at mostly American law schools who get together annually for a self-funded workshop.  Junior faculty and fellows interested in presenting at the meeting should email proposals to MJ Durkee and Jean Galbraith by Friday, October 10.  If you are interested in presenting a working draft, please send us the title, an abstract, and an indication of how far along the paper is.  Because of the nature of the workshop, we can only include working drafts that have not yet been accepted for publication.  We also workshop early stage projects.  If you are interested in presenting on an early stage project, please let us know the working title and a few lines about the idea you are pursuing.  Finally, if you are interested in being a discussant, please let us know.  We will do our best to get back to everyone in November, and, for those whose working drafts are accepted for the conference, we will expect the authors to provide the drafts a few weeks before the conference.
  • The Human Rights Essay Award Competition sponsored by the Academy on Human Rights and Humanitarian Law seeks to stimulate the production of scholarly work in international human rights law. Awardees receive a full scholarship to attend the 2015 Program of Advanced Studies in Human Rights and Humanitarian Law in Washington D.C. 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. For detailed guidelines about the award please visit the website or e-mail the Academy.

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: September 20, 2014

by An Hertogen

This week on Opinio Juris, we hosted an insta-symposium on the Scottish Independence Referendum. David Scheffer surveyed the legal terrain in case of a yes vote, Stephen Tierney discussed how Scotland’s move to independence would be characterised under international law, Milena Sterio argued that international law could develop a norm containing a positive right to secession under certain circumstances, Jure Vidmar looked at Scotland’s position in the EU, Tim Sparks took a long view, and Christopher Connolly discussed the phrasing of the referendum question. Finally, Chris asked whether there will be a Scottish precedent.

In other guest posts, Eliav Lieblich updated us on recent developments in an Israeli case reviving international prize law, Leila Nadya Sadat and Douglas J. Pivnichny wrote about recent steps towards a comprehensive treaty on crimes against humanity, Yanying Li alerted us to a UNGA resolution on a multilateral framework for sovereign debt restructuring, and Michael W. Lewis responded to Kevin’s critique last week of his post on the nature of self-defense.

In other posts by our regular contributors, Kevin criticized the University of Sydney for restricting academic freedom after it “un-invited” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific. Peter asked if ISIL fighters can be stripped of their passports, and remarked that the AUMF basis for an ISIL intervention looks likely to stick. More on ISIL came from Jens who discussed the issue of ransom and material support for terrorism. Finally, Kristen explained why the Security Council’s decision to take up the issue of Ebola is significant.

As always, Jessica wrapped up the news and listed events and announcements. Duncan also updated us on the new Executive Director of ASIL.

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

Ransom and Material Support

by Jens David Ohlin

The Foley family is furious that the US government did little to help them rescue their son, James Foley, from ISIS terrorists. In a recent New York Times article, the Foley family expresses frustration that European countries were quietly negotiating to pay ransoms for their nationals, while the US steadfastly refused to do so. As foreign nationals were gradually released for payments, detainees from the UK and the US remained behind because these two countries refuse to pay ransoms to terrorists. The Foleys figured this out late in the game and attempted a last-minute fundraising campaign to generate funds, but the effort came too late. They were also told by FBI agents that they could be prosecuted for paying a ransom to ISIS in exchange for their son.

I want to analyze in greater detail the claim that paying a ransom to ISIS could constitute a crime. I’m not aware of a specific federal statute banning the paying of ransoms to terrorist organizations. (If readers are aware of such a statute, please let me know in the comments section). Rather, I’m assuming that the FBI claim is based on the application of the material support provision of the federal code (18 U.S. § 2339B) which provides:

(a) Prohibited Activities.—

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

(2) Financial institutions.— Except as authorized by the Secretary, any financial institution that becomes aware that it has possession of, or control over, any funds in which a foreign terrorist organization, or its agent, has an interest, shall—
(A) retain possession of, or maintain control over, such funds; and
(B) report to the Secretary the existence of such funds in accordance with regulations issued by the Secretary.

The first question is whether the payment of ransom constitutes the knowing provision of material support or resources. I’m not sure what a jury would do with this question. On the one hand, any money, delivered for any reason, can be considered a type of resource. Furthermore, the statute criminalizes knowing support, not just purposeful support. If it was the latter, the Foleys could claim that their purpose was to free their son, not provide material support. But since the mens rea is knowingly, perhaps they would be liable even if their purpose was the freedom of their son.

The bigger issue is whether they could claim an affirmative defense. The most likely possibilities are necessity and duress.

Necessity applies when a defendant, in response to a threat or emergency, violates a criminal prohibition because doing so represents the lesser of two evils. In that sense, the necessity defense has a utilitarian or consequentialist logic stemming from its status as a justification. If the defendant produces a greater evil, then the defense no longer applies.

In contrast, duress applies when the defendant performs a criminal act due to a threat of grave injury or death to the defendant or a close associate, emanating from a third party. (In the past I’ve argued that the defense should apply even if the target of the threat is not a close associate.) The paradigm of duress involves an autonomy-reducing threat that requires a level of moral heroism that cannot be expected by the law. The third party “forces” the defendant to violate the criminal prohibition by virtue of a threat that cannot be reasonably ignored. As such, duress is an excuse which negates the culpability of the actor. As an excuse, duress should not require that the defendant selected the lesser of two evils, because the claim has nothing to do with the defendant’s selection of a better outcome. Indeed, in duress situations the defendant may have selected the worse outcome because they are unwilling to sacrifice the life of the threatened individual.

American jurisdictions impose restrictions on the application of both defenses. Under the rule from Dudley & Stephens, necessity and duress are unavailable in cases of murder. There is a complicated question of whether the same exclusion should apply in manslaughter cases.

It seems clear to me that the Foleys, if they had paid a ransom to ISIS, would be (and should be) entitled to a duress defense. If they paid the ransom to ISIS, they would be providing material support to ISIS only by virtue of the threat against their son, which they cannot reasonably be expected to ignore. The government position is that paying ransom endangers future US citizens who would be captured for ransom by a terrorist organization incentivized to repeat the strategy. This seems factually true, though this point is irrelevant: duress as an excuse applies even if the outcome produced by the defendant is worse. Duress is not a lesser-evils defense. Finally, even if it were relevant, the future lives endangered by paying a ransom are speculative and hypothetical, rather than actual and manifest.

As a final point, necessity is often excluded as a defense if the statutory provision embodies a specific legislative choice or policy to criminalize the decision made by the defendant. However, that exclusion does not apply to excuses such as duress. And even in the context of necessity, there is no evidence that Congress had in mind the specific situation of paying ransom to terrorists. If, in the future, Congress passes a specific statute outlawing the paying of ransom to terrorists by private citizens, then the exclusion would be relevant.

Consequently, the Foleys are entitled to the duress defense, and that seems like the right result. And it also helps to explain the popular outrage over the FBI’s heavy-handed techniques against the Foley family. For the FBI agents to suggest to the Foleys that they would be prosecuted for paying the ransom was not only tone deaf–but it also indicates that the FBI agents did not understand the law of duress.

The UN Security Council Takes up Ebola

by Kristen Boon

Today, the UN Security Council held an open debate on the ebola outbreak in Africa, and unanimously adopted Security Council Resolution 2177.   Background on the US sponsored resolution is available here.

The Council’s decision to take up the issue of Ebola is significant for three reasons. First, the Council calls the Ebola outbreak a threat to international peace and security. In the preamble, the Resolution expressly states the Council is “determining that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security.”  Although the resolution was adopted under Chapter VI (apparently due to concerns from Russia), it indicates a broadening concept of what events might trigger the Council’s jurisdiction.    Security Council meetings on public health crises are rare, although two prior resolutions have been adopted on HIV/AIDS in 2000 and 2011 (S/RES/1308; S/RES/1983).

Second, the resolution contains a number of direct instructions to member states and private industry.   It “calls on” Member states to lift general travel and border restrictions, provide urgent resources and assistance, including deployable medical capabilities.  It also “calls on” airlines and shipping companies to maintain trade and transport links, reinforcing the Council’s increasing engagement with non-state actors.

Finally, the outbreak of Ebola is changing the UN’s approach to intervention in Liberia generally. Not only have plans to wind down UNMIL and UN sanctions been put on hold in light of the public health and social crisis, but the role of UNMIL is likely to evolve, with peacekeepers being called upon to provide logistical support to fight the epidemic.

This is a good step by the Security Council: it is demonstrating its relevance to a current and destabilizing threat with international ramifications, in a country that has been on the Council’s agenda for many years.

Will There Be a Scottish Precedent?

by Chris Borgen

Since Kosovo’s declaration of independence there has been talk about whether there is a “Kosovo precedent,” and, if so, just what does it mean. The International Court of Justice’s advisory opinion
captured the imaginations of national parties throughout Europe. For example, Aitor Estaban, a representative from Spain’s Basque Nationalist Party (PNV) said that “the main consequence is that Spain cannot keep saying that the international rules don’t allow for a split of the country for a new Basque independent country into the European Union. So I think that should be already over and that’s good news for us.” (See H. Jamar & M. K. Vigness, ‘Applying Kosovo: Looking to Russia, China, Spain, and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence’, 11 German Law Journal (2010) 8, 913, 925.)

Will we now add a “Scotland precedent”  as well as  a “Kosovo precedent?”  Today’s referendum in Scotland has been described as a bellwether or a “canary in the coalmine” signaling the future of nationalism within the European Union. There are currently twenty to twenty-five “significant” separatist movements across Europe. (See, Bruno Coppieters, ‘Secessionist Conflicts in Europe’, in D. H. Doyle (ed.), Secession as an International Phenomenon: From America’s Civil War to Contemporary Separatist Movements (2010), 237, 247.) Many writers seem to assume that as Scotland goes so does Catalonia, the Basque Countries, Padania, and any number of other parts of EU countries with their own national aspirations. But is this accurate? Would a “Yes” vote—or even just the fact that there is a vote—form some sort of “Scotland precedent?”

First, what do we mean by “precedent?” At times, commentators  use the word to mean, interchangeably, the strict legal sense of a legally binding decision and the looser political sense of a persuasive analogy that can be drawn from a similar case. What role may Scotland’s referendum have in regards to the nationalist movements elsewhere in the EU? Let us consider the number of legal and political factors at play in just one example: Catalonia.

At first blush, the situation in Catalonia may seem similar to that in Scotland. As a political entity, Catalonia has some similarities to Scotland (if slightly larger). As Bloomberg News explains:

Catalonia is a region in the northeast corner of the Iberian peninsula with about 7.5 million people compared with the 5.3 million who live in Scotland. Its 193 billion-euro economy is about the size of Finland’s and compares with the 150 billion-pound gross domestic product of Scotland.

Like Scotland, Catalonia has a distinct linguistic and national heritage. It has a special status within the Spanish state with greater autonomy and it has a population that has been seeking greater levels of independence, if not full separation and sovereignty. And the regional government of Catalonia has scheduled a referendum on independence for this coming November. For more on the history of Catalonia, see this.

Despite these similarities, most international lawyers could see quickly that a domestic referendum in the UK does not provide binding legal precedent for whether or not a domestic referendum in Spain would actually grant independence to Catalonia. Rather, the issue is one of political precedent: persuasive strength. In an argument supporting Catalonia’s referendum, Carles Boix and J.C. Major wrote in Foreign Affairs that, in their view:

International opinion tends to support this referendum, just as it has supported the one that will be held in Scotland this September or those that took place in Quebec a few years ago. Indeed, finding out where everyone stands would appear to be a necessary step to make an informed decision on how to proceed. And yet the Spanish government has not granted the Catalan authorities the power to conduct what would be a non-binding referendum — something that would be perfectly legal according to articles 92 and 150.2 of the Spanish constitution.

But even if one is to argue that Scotland’s referendum is persuasive authority, one first needs to consider whether the analogy is a good one. And, for that, we need to consider once again the legal and political situation. (more…)

Scottish Independence Insta-Symposium: “Devolution Max” and the Question of Referendum Questions

by Christopher K. Connolly

[Christopher K. Connolly is an Assistant United States Attorney, Southern District of New York.  This post is written solely in the author's personal capacity.  The views expressed in this post are the author's alone and cannot be attributed in any way to his employer or any branch of the U.S. Government.]

On September 7th, faced with new polls showing a surge in support for Scottish independence, the British government made a pledge to the people of Scotland: vote “No” in this Thursday’s referendum, thereby remaining within the United Kingdom, and more powers will be devolved to Scotland’s parliament.  According to the Chancellor of the Exchequer, George Osborne, if Scots reject independence, they will receive “[m]ore tax-raising powers, much greater fiscal autonomy . . . . More control over public expenditure, more control over welfare rates and a host of other changes.”

Osborne’s offer represents a new development in the run-up to the referendum–one that Scottish National Party (SNP) leader Alex Salmond quickly dismissed as a “panicky measure” brought on by the increased momentum of the pro-independence campaign.  But it’s hardly a new concept.  In essence, the British government is offering some form of “devolution max”–the term typically used to describe scenarios in which Scotland would obtain virtually complete internal autonomy (in particular, robust economic and fiscal powers) while remaining part of the United Kingdom for external purposes such as defense and foreign affairs.  The SNP recognized devolution max as an option for Scotland’s political future (albeit not the SNP’s preferred option) in a 2009 White Paper, and the party’s initial proposals for the upcoming referendum envisioned a ballot containing two questions, the first addressing independence and the second gauging support for devolution max.

But British prime minister David Cameron, confident in his government’s ability to win the referendum and wary of handing Salmond a “consolation prize” in the form of enhanced autonomy, rejected the idea of including two questions and instead insisted on an “up-or-down” vote on independence.  In the Edinburgh Agreement reached in October 2012, which laid the ground rules for the referendum process, the Scottish government agreed to a one-question referendum ballot in exchange for other concessions from Westminster.  Thus, when Scottish voters go to the polls on September 18th, they will be asked a single, straightforward question: “Should Scotland be an independent country?  Yes/No.”

Although the British government’s push for a single referendum question was prompted in large part by political considerations, it also comports with guidance concerning the phrasing of referendum questions provided by legal opinions and state practice.  In its 1975 Western Sahara advisory opinion, the International Court of Justice (ICJ) recognized the general principle that “the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned” (para. 55).  The Canadian Supreme Court expanded on this concept in its 1998 Quebec Secession Reference.  There, although the court found that Quebec did not possess a unilateral right to secede under either domestic or international law, it nonetheless concluded that “a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other [Canadian provinces] would have to recognize” (para. 150).  In other words, the democratically expressed will of the people of Quebec to secede would oblige the rump Canadian state to engage with Quebec in negotiations concerning possible separation.  The court emphasized, however, that “[t]he referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves” (para. 87).

The Canadian Supreme Court’s opinion was followed in 2000 by the Clarity Act, which gave teeth to the court’s view of the need for a clear and unambiguous referendum question.  Among other things, the Act obliges Canada to negotiate with Quebec over the terms of a possible separation only following a referendum that sets forth an unambiguous choice between either full separation or continued inclusion in the Canadian state.  Accordingly, the Act prohibits any “referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada” (art. 1, para. 4(b)).

The Quebec Secession Reference and the Clarity Act must be understood against the backdrop of Quebec’s 1980 and 1995 referendums on independence.  The questions posed in those referendums were far from clear.  For example, the 1995 referendum question (the shorter of the two) read: “Do you agree that Quebec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the Bill Respecting the Future of Quebec, and of the agreement signed on June 12, 1995?”  Moreover, the ultimate issue of independence was to a certain extent obscured by debates over “sovereignty-association,” a proposal often made by Quebecois nationalists under which Quebec, though nominally independent, would retain some form of political and economic partnership with the rest of Canada.  The Canadian government sought to ensure that any subsequent referendum would avoid these pitfalls.

Judged by these standards, the Scottish referendum question could not be more clear and straightforward.  Indeed, in language reminiscent of the ICJ and Canadian Supreme Court opinions, the Edinburgh Agreement asserts that the referendum will “deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.”  But there is room to question whether the simple, single question will best capture the political preferences of the Scottish electorate.  Polls have often shown that many, if not most, Scottish voters prefer neither the status quo nor outright independence–they would support devolution max if that were an option in the referendum.  The British government’s recent pledge to provide Scotland with greater autonomy appears to recognize this sentiment by attempting to turn a “No” vote into a vote for devolution max.  But will it be too little, too late for those who want Scotland to remain within the United Kingdom?  And given the question presented to them, which makes no mention of the possibility of further devolution, are Scottish voters being provided with a clear sense what voting “No” might entail?

Undoubtedly, referendum questions must be framed with clarity to ensure that voters understand the choice that is being presented to them.  But notwithstanding the lessons from Quebec, the Scottish situation raises the question of whether that choice should always be limited to either outright independence or continued inclusion in the state.  A clearly-worded second question concerning devolution max might have captured the wishes of many Scottish voters.  As I’ve argued elsewhere, “the increased autonomy envisioned by that proposal might have been sufficient to satisfy many Scottish nationalists.  By taking the option off the table and making the referendum an all-or-nothing affair, the British government is running the risk that many Scottish voters might instead opt for independence” (p. 102).  David Cameron’s single question, though admirably clear and unambiguous, has started to look like a political gamble.  It remains to be seen whether it will pay off.

ASIL Names New Executive Director: Mark Agrast

by Duncan Hollis

Those readers who are members of the American Society of International Law know how critical the role of its Executive Director is and how great a job the previous director, Betsy Andersen did since taking on the role in 2006.  Betsy left ASIL earlier this year to run the ABA’s Rule of Law Initiative, and my former colleague from the State Department, Ron Bettauer, has been serving as an Interim Director for the last several months.  Today, I’m pleased to report ASIL announced the hiring of its newest Executive Director, Mark Agrast.  Here’s the highlights from ASIL’s news release:

The American Society of International Law (ASIL) announces the appointment of Mark D. Agrast to serve as the Society’s eighth executive director beginning October 20, 2014 . . . Agrast, who is an ASIL member, currently serves as deputy assistant attorney general in the U.S. Department of Justice’s Office of Legislative Affairs, where he has worked since 2009. . . Prior to joining the Justice Department, Agrast was a senior vice president and senior fellow at the Center for American Progress from 2003 to 2009, and from 1992 to 2003 he held senior staff positions with two members of the U.S. House of Representatives.  Agrast previously practiced international law with the Washington office of Jones Day.  He also has served in numerous leadership capacities in the ABA, including as a member of its Board of Governors and its Executive Committee, a past chair of the Section of Individual Rights and Responsibilities and the Commission on Immigration, and current chair of the Commission on Disability Rights.  He is a longtime member of the ABA’s House of Delegates.  Agrast has co-chaired the National Lesbian and Gay Law Association (now the National LGBT Bar) and served as that organization’s ABA Delegate.  He has also been a leader of the World Justice Project since its inception and has played a central role in designing and implementing its Rule of Law Index, a quantitative assessment measure of the extent to which countries adhere to the rule of Law.  Agrast graduated summa cum laude from Case Western Reserve University, pursued his postgraduate studies as a Rhodes Scholar at the University of Oxford, and received his J.D. in 1985 from Yale Law School, where he was editor in chief of the Yale Journal of International Law.