Recent Posts

Trump Advocates World War III

by Kevin Jon Heller

I know pointing out stupid things Donald Trump says is a fool’s errand — pretty much everything Donald Trump says is stupid. (Note to non-hack conservative friends: I genuinely feel sorry for you.) But I’m struck by how little attention pundits have paid to this gem:

I think that once the nuclear alternative happens, it’s over. At the same time, we have to be prepared. I can’t take anything off the table.Because you look at some of these countries, you look at North Korea, we’re doing nothing there. China should solve that problem for us. China should go into North Korea. China is totally powerful as it relates to North Korea.

There are, shall we say, a couple of problems with this suggestion. First, Trump is openly advocating China invading North Korea without provocation. You don’t have to be a Kim Jong-un apologist to suggest that international law might look rather unkindly at that. Second, although China is no doubt “totally powerful” compared to North Korea, North Korea has something of an equalizer — nuclear weapons. (The topic Trump had been asked to discuss.) Does anyone doubt that Kim Jong-un would use them against China if, as Trump wants, China tried to wipe North Korea off the face of the earth?

PS: I’m being good and not pointing out that Trump was openly advocating genocide…

Emerging Voices: Can Foreign Investors Enforce International Investment Law in U.S. Courts?

by John F. Coyle

[John Coyle is an Assistant Professor at the University of North Carolina School of Law.]

On June 14, 2016, the Islamic Republic of Iran initiated proceedings against the United States before the International Court of Justice (“ICJ”), alleging that the United States had violated the 1955 Treaty of Amity, Economic Relations, and Consular Rights (“Treaty”) between the two nations.  Iran claimed, inter alia, that the United States had discriminated against Iranian companies, failed to accord these companies the most constant protection and security, and expropriated their property without compensation.  In support of its claim, Iran noted that the ICJ had jurisdiction to hear the dispute pursuant to Article XXI(2) of the Treaty, which provides that “[a]ny dispute . . . as to the interpretation or application of the present Treaty . . . shall be submitted to the International Court of Justice.”

Similar treaty provisions can be found in more than a dozen other treaties of friendship, commerce, and navigation (“FCNs”) negotiated by the United States in the two decades following the Second World War.  At the time, these agreements to submit to the jurisdiction of the ICJ was viewed as a significant milestone in the peaceful resolution of international investment disputes.  In the decades that followed, however, nations increasingly turned to bilateral investment treaties (“BITs”) and investor-state arbitration to resolve such disputes.  It is today common in the academic literature for authors to identify two—and only two—fora whereby the rights granted to foreign investors under FCNs or BITs may be enforced.  The first is the ICJ.  The second is an international arbitral panel.

In a recent paper, Jason Yackee and I argue that this account overlooks a third possible forum—the courts of the United States.  We argue that the FCNs negotiated by the United States in the 1940s and 1950s, most of which remain in force, provide foreign investors with domestically enforceable rights. These FCNs contain promises of favorable substantive treatment that are quite similar to the rights commonly extended to investors through BITs and investment chapters in free trade agreements such as NAFTA and CAFTA.  Unlike NAFTA and CAFTA, however, the FCNs are self-executing and give rise to a private right of action. This means that their provisions may be directly enforced in U.S. courts by private litigants.

This ability to access substantive international investment law through domestic litigation rather than international arbitration is of significant practical and theoretical importance.  It could lead foreign companies to rethink their approach to asserting indirect or regulatory takings claims against governmental entities within the United States.  The choice available to foreign investors who believe that they have suffered a regulatory taking has long been viewed as binary. The investor may either bring a constitutional takings claim before a U.S. court or a treaty-based expropriation claim before an international arbitral tribunal. There was no way—or so conventional wisdom held—for a foreign investor to invoke the enhanced protections afforded by the treaty in domestic litigation. The FCNs make it possible, at least in principle, for foreign investors to litigate takings claims in U.S. courts under international investment law standards rather than constitutional ones.

The ability to access the substance of international investment law through the FCNs also suggests that foreign investors may in some cases enjoy domestically enforceable rights under those treaties that are superior to those accorded to citizens under the U.S. Constitution. The U.S. Supreme Court held in Penn Central that courts must balance three factors in determining whether a regulatory taking has occurred under the Takings Clause: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation interferes with investment-backed expectations, and (3) the character of the government action. In theory, the test constitutes a neutral attempt to balance the interests of the government against the interests of private property owners. In practice, the test typically results in a finding that no taking has occurred and that no compensation is owed to the property owner.  The standard of protection for regulatory expropriations under international investment treaties, by contrast, is generally viewed as more demanding than the standard of protection set forth in the Takings Clause. Indeed, when the U.S. Congress became aware of this divergence in 2002, it enacted a law directing U.S. trade negotiators to “[e]nsur[e] that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States.”  The treaty negotiators subsequently modified the text of the U.S. Model BIT to effectuate this goal for future agreements.  However, these textual modifications do not affect treaties that were then in existence, a list that includes all of the FCNs.

We acknowledge that there are a number of practical obstacles that would need to be overcome before the FCN revival could successfully occur.  The first is the well-documented reluctance on the part of U.S. judges to directly enforce rules of international law in the absence of a statute expressly directing them to do so.  The second is the fact that FCNs couch their promises to investors in language that is sometimes different from the domestic-law analogues with which U.S. judges are familiar. Judicial unfamiliarity with the language of international investment law may make it more likely for judges to restrict private access to the treaties.  The third obstacle is that U.S. courts have, at least historically, been reluctant to grant rights to foreign nationals while denying these same rights to U.S. citizens. Under our argument, foreign investors would be asking the courts to enforce a treaty provision granting rights to foreign companies that are arguably superior to those enjoyed by U.S. citizens.  While there are scattered precedents in which U.S. courts have recognized such rights in the past, contemporary judges may prove resistant to the idea in practice.

There is also at least one significant doctrinal obstacle that would need to be overcome—sovereign immunity.  In the United States, the state and federal governments generally enjoy sovereign immunity unless they have waived this immunity or consented to suit.  The Supreme Court has stated that the Takings Clause amounts to a de facto waiver of federal sovereign immunity for suits in which a taking is alleged.  Some scholars have argued that the Takings Clause also abrogates state sovereign immunity for constitutional takings claims.  If the takings claim were to be framed as a treaty violation, rather than a constitutional one, then it is unclear whether the state and federal governments could invoke sovereign immunity as a defense.  On the one hand, the Fifth Amendment could be read as a waiver of sovereign immunity with respect to treaty-based takings claims as well as constitutional ones.  This argument derives support from (1) the fact that the text of the standard treaty provision relating to takings closely tracks the text of the Fifth Amendment, and (2) the fact that foreign sovereigns generally do not enjoy immunity in U.S. courts when they take property in violation of international law.  On the other hand, the Fifth Amendment could be read to waive sovereign immunity only with respect to constitutional claims.  This argument derives support from the Supreme Court’s repeated admonition that waivers of federal sovereign immunity must be “unequivocally expressed” and the Court’s consistent practice of “construing waivers of sovereign immunity narrowly in favor of the sovereign.”  To date, there is a dearth of case law on this issue.

It is important to note, however, that sovereign immunity only presents an obstacle with respect to suits against the United States or one of the several States; counties and municipalities do not enjoy sovereign immunity.  Even if a court were to conclude that the state and federal governments could assert sovereign immunity as a defense, FCNs could still serve as a useful check on any regulatory takings conducted by U.S. counties and municipalities.

In summary, the FCNs are not historical relics. They remain in force, and they provide doctrinally meaningful legal guarantees to foreign investment in the United States due to their self-executing character and the fact that they give rise to a private right of action. While the FCNs have not played a prominent role in domestic litigation over the past half-century, it is easy to imagine how they might be relevant in future years. The U.S. government and its sub-federal counterparts interact with FCN-covered investors all of the time. To the extent that the government thinks in advance about the consequences of its actions toward foreign investors, it should at least consider the possibility that an FCN treaty might impose legally enforceable limitations on its freedom of action. Investors who feel mistreated by the government, moreover, should consider the availability of FCN-based causes of action when planning their legal responses.

Emerging Voices: A Case of Firsts for the International Criminal Court: Destruction of Cultural Heritage as a War Crime, Islamic Extremism and a Guilty Plea

by Andrea Bowdren

[Andrea Bowdren (LLM (LSE), BCL International (NUI)) is a trainee solicitor at Arthur Cox in Dublin, Ireland. All views are the author’s own.]

The trial of Ahmed Al Faqi Al Mahdi before the International Criminal Court represents a series of firsts for international law and justice. Al Mahdi is the first individual from Mali brought before the International Criminal Court, the first Islamic extremist to face charges at the International Criminal Court, the first individual to be prosecuted solely for cultural destruction as a war crime, and the first individual who has indicated an intention to plead guilty to a charge of the International Criminal Court.

Ansar Dine, a militant Islamist group associated with al-Qaeda, aimed to enforce an extreme interpretation of Sharia law throughout Mali. In the territories under its control, Ansar Dine banned alcohol, smoking and Friday visits to cemeteries, among many other restrictions. Al Mahdi’s role in the group was head of the “hisbah,” or morality brigade, enforcing sharia and “preventing vice” among the population.

In June and July 2012, Ansar Dine destroyed nine mausoleums of Muslim saints and the door of Timbuktu’s famous Sidi Yahia mosque, a UNESCO world heritage site dating back to the 15th and 16th centuries. Al Mahdi stands accused of jointly ordering or carrying out the attacks against the historical monuments, which UNESCO have described as “places of pilgrimage for the people of Mali and neighbouring West African countries.”

On 24 March 2016, the International Criminal Court judges ruled they would commit Al Mahdi to trial for one charge of the war crime of attacking “buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives” under Article 8(2)(e)(iv) of the Rome Statute. In this confirmation of charges hearing, it was stated Al Mahdi is criminally responsible:

  1. as a direct co-perpetrator under Article 25(3)(a) of the Rome Statute;
  2. for inducing the commission of such a crime under Article 25(3)(b) of the Rome Statute;
  3. for facilitating the commission of such a crime by aiding, abetting or otherwise assisting in its commission under Article 25(3)(c) of the Rome Statute; and
  4. for contrinuting in any other way to the commission of uch a crime by a group acting with a common purpose under Article 15(3)(d) of the Rome Statute.

The prosecution showed video extracts of interviews with Al Mahdi at the time of the attacks, where he explains the Islamic jurisprudence informing his actions.

On 1 March 2016, in an unprecedented move, Al Mahdi explicitly expressed his wish to plead guilty to the war crime charge. Defence counsel Mohamed Aouini has stated that Al Madhi “wants to be truthful to himself and he wants to admit the acts that he has committed. And he wants to ask at the same time for pardon from the people of Timbuktu and the Malian people.” This guilty plea has been described as a  “milestone in the history of the International Criminal Court” by chief prosecutor Fatou Bensouda. It provides both the prosecution and judges with an opportunity to reflect on how best to develop an institutional practice conducive to guilty pleas while advancing the interests of the International Criminal Court and justice.

What is the role of international law in this area? Why is the protection of cultural property important? What could this trial mean for the future interpretation of war crimes and the future of combatting terrorism?

Although the International Criminal Court has previously focused on attacks against people causing physical injury, the Rome Statute clearly provides that intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments is a war crime, provided they are not military objectives. Thus the Rome Statute envisages prosecutions of people like Al Madhi and recognises the effect that the destruction of cultural and religious monuments has on the psyche of the communities subjected to these attacks.

“A community’s cultural heritage reflects its life, history and identity. Its preservation helps to rebuild broken communities, re-establish their identities, and link their past with their present and future,” said Vibeke Jensen, UNESCO. Cultural heritage destruction is a powerful tool used to weaken morale and reinforce the authority of a new regime, which may have won control through violence or other criminal acts. In deciding to prosecute Al Madhi, the International Criminal Court underscored the seriousness of the destruction of cultural property and consequential psychological harm to the Malian population and highlighted the importance of accountability for perpetrators.

International Criminal Court Chief Prosecutor Fatou Bensouda told the court:

“The charges we have brought against Ahmad Al Faqi Al Mahdi involve most serious crimes. They are about the destruction of irreplaceable historic monuments and they are about a callous assault on the dignity and identity of entire populations and their religion and historical roots.”

Similarly, the Minister of Culture of Mali summarised these feelings aptly on 25 February 2013, when he called the destruction “an attack on the lifeblood of our souls, on the very quintessence of our cultural values. Their purpose was to destroy our past … our identity and, indeed, our dignity …”

Pursuing and prosecuting those responsible for cultural destruction and resultant harm could yield important changes in the way the international community approaches violent extremism and terrorism. This approach by the International Criminal Court corresponds with former chief prosecutor Luis Moreno Ocampo’s contention that combating terrorism would be more effective and humane if terrorists were treated as criminals to prosecute rather than enemies to bomb.

The trial is set to proceed on 22 August 2016 and the Chamber aims to complete the trial in a single week. This case breaks new ground for the protection of humanity’s shared cultural heritage and for the procedural future of the International Criminal Court, as it affords the Chamber an opportunity to reflect on what is best for the advancement of the interests of the International Criminal Court and international justice.

Weekly News Wrap: August 8, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • A member of an Australian anti-immigration group accused of planning an attack may face additional charges in what the government said was the first time federal terrorism laws had been used to target such right-wing groups.

UN/World

Events and Announcements: August 7, 2016

by Jessica Dorsey

Sponsored Announcement

  • EIUC – Master in Democratic Governance – Democracy and Human Rights in the Mena Region The European Inter-University Centre for Human Rights and Democratisation (EIUC) and its partners International University of Rabat (Rabat, Morocco), Birzeit University (Birzeit, Palestine), St Joseph University (Beirut, Lebanon), Ca’ Foscari University(Venice, Italy), University of Carthage (Tunis, Tunisia) are proud to open the Call for Applications to the third edition of the Master in Democratic Governance – Democracy and Human Rights in the Mena Region (DE.MA), starting in September 2016.
    DE.MA is a multidisciplinary curriculum offering courses in law, political science, sociology and other fields relevant to the study of democratic governance and Human Rights. Open to professionals and graduates, it will combine a theoretical and practical approach and will deliver a professional Master’s degree (60 ECTS) from Ca’ Foscari University, Venice. The first semester from mid/late September 2016 until January 2017 is held at Ca’Foscari and EIUC premises in Venice. During the second semester students will be placed in one of the Universities of the Consortium on the basis of the compatibility of their research and internship interests with the supervision expertise of the partner universities. Students will write a Thesis of 15,000 words which could be based on field and Internship work. Thesis defense and graduation ceremony will be in July 2017.
    The Master is meant to play an active role in the ongoing debate about the principles underpinning the transition of political regimes to democracy. It aims to:
  • Create high-profile experts in the fields of democratic governance and the protection of human rights, allowing them to act as promoters of a process leading to the affirmation of the democratic principles;
  • Foster the creation of an élite group of people committed to the promotion of democratic institutions;
  • Build a network of experts to be active in political institutions, in national and international, governmental and non-governmental organizations in the Region.
    Interested? Here are the practicalities:
    Deadline: 30 June 2016
    Language: English, (knowledge of French and Arabic recommended)
    Teaching method: Face to face teaching
    Tuitions Fees: 4.000.00 euro.
    Tuition Waivers/Scholarships: EIUC offers financial support in the form of a partial contribution towards living expenses and/or a full or partial tuition waiver. This type of financial support is awarded to a limited number of students on the basis of academic achievement, need and geographical distribution.
    More information on DE.MA, criteria for admission and a detailed programme can be found here: http://eiuc.org/dema

Event

  • The Yeoh Tiong Lay Centre for Politics, Philosophy and Law is delighted to announce the first of three Law & Justice Fora for the academic year 2016-17. The first forum is on the topic ‘Human Rights and Development’, and will feature some of the leading thinkers and practitioners in the world working at the interface of human rights and development. The aim of this forum is to address the place that human rights have in rigorous and effective thinking about development policy. There will be a special focus on the socio-economic rights, such as the rights to health, food and education etc. found in the International Covenant on Economic, Social and Cultural Rights (1966). You will be able to RSVP in September via The Dickson Poon School of Law website.

Call for Papers

  • The Goettingen Journal of International Law (GoJIL) dedicates its 8th Student Essay Competition to the topic Transparency in International Law. The GoJIL invites you to actively take part in the illumination of the concept and/or reflect on its implementation on the international level. The deadline for your submission is 30th November 2016. The maximal word count is 5000 words (excluding footnotes). The winning submission will be published in one of the upcoming GoJIL issues. The Student Essay Competition gives young scholars the chance to gain practical experience and get their own professional scientific publication. We strongly encourage you to take advantage of this great opportunity and hand in your submissions. For further details, see www.gojil.eu/essay-competition or contact the Editors at essay [dot] competition [at] gojil [dot] eu.

Announcements

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.

Emerging Voices: Computational Analysis of International Law-Using Text-As-Data Tools to Investigate International Investment Agreements

by Wolfgang Alschner

[Wolfgang Alschner (PhD in International Law, JSM (Stanford)) is a post-doctoral researcher at the World Trade Institute in Bern and the Graduate Institute in Geneva specializing in text as data analysis of international law.]

As international law scholars we are overwhelmed with information. The United Nations Treaty Series alone contains more than 50,000 treaties. Add to that the many thousand decisions by international courts and organizations that grow day by day. Just keeping abreast with a sub-field of international law is a full-time job. Not only academics but also beneficiaries of international law are affected by this information overkill. A recent UNCTAD report pointedly concluded that international investment law has become “too big and complex to handle for governments and investors alike”. Lest we are to drown in the rising tides of information and complexity, we need to find novel ways to digest and analyze international law materials.

Computational analysis of international law promises such a new way. Not only do computers not grow tired or grumpy when reading through thousands of documents, but they also find patterns in data that humans would not be able to spot. To be sure, robot lawyers are not going to replace human researchers any time soon – nor should they. But the interaction between computers crunching numbers and scholars interpreting results does provide new and exciting opportunities to tackle international law’s big data problems. In this post, I will highlight four examples derived from computational international investment law research that I did together with Dmitriy Skougarevskiy, which showcases some of the insights revealed through computer-assisted approaches that would have been difficult or impossible to gain using traditional human-led research.

Dmitriy and I have investigated over 2,100 International Investment Agreements (IIAs) and their 24,000 constituent articles. Using a computational approach similar to what is being employed in plagiarism detection software, we were able to empirically demonstrate four hitherto unknown or only anecdotally presumed aspects of the IIA universe relating to asymmetry in negotiations, the evolution of national investment treaty programs, the diffusion of treaty design and the innovations achieved in recent mega-regional agreements. To allow researchers and other stakeholders to engage with our findings directly and interactively, we have created the open-access website www.mappinginvestmenttreaties.com.

The simple, yet powerful text-as-data procedure we employ in our research consists of four steps. First, we collect treaty full texts and split them into their constituent articles. Second, we represent each treaty and article based on its consecutive 5-character components. The phrase “shall be permitted” is thus represented as “shall”, “hall_”, “all_b”, “ll_be”, “l_be_”, “_be_p”, “be_pe”, “e_per”, “_perm”, “permi”, “ermit”, “rmitt”, “mitte”, “itted” (“_” signifies space). Third, we compare the textual similarity between two treaties or articles based on the 5-character components they have in common calculating what is formally known as a Jaccard distance – a measure of dissimilarity ranging from 0 (100% similarity) to 1 (0% similarity). The phrase “shall be permitted” and a second phrase “shall not be permitted”, for instance, are identical, except for the 5-character components “all_n”, “ll_no”, “l_not”, “_not_”, “not_b”, “ot_be”, “t_be_” due to the word “not” in the second phrase, which yields a Jaccard distance of 0.48. Finally, since Jaccard distances by themselves do not tell us much, we compare Jaccard scores across sets of documents. Such comparison allows us to see where treaty language convergences or diverges uncovering latent patterns in our data – four of which we will present here.

First of all, our metric revealed a stark asymmetry in investment treaty making. While rich countries achieve highly consistent treaty networks whose design closely corresponds to the model template they employ, poorer states are party to patchworks of textual diverse treaties. Put differently, a computational assessment of textual similarity allows us to empirically show in a systematic, objective and replicable manner that developed countries tend to be the system’s rule-makers while developing countries are its rule-takers.

Second, Jaccard distances also shed light on consistency and innovation in national investment treaty programs. Some countries like the United Kingdom have only made cosmetic changes to their investment agreements over time. The country’s network of 110 bilateral investment treaties (BITs) concluded between 1975 and 2009 is thus the most consistent of the world. Other states have continuously updated their investment treaties. Our metric allows us to detect major changes in treaty design such as when the United States revamped its model agreement in 2004. Also less well-known innovations, such as the Finish shift to a pre-establishment treaty model in 1999 that combines investment protection with capital liberalization, are made visible. Our metric thus provides a means to inductively investigate the evolution of national treaty programs.

Third, our approach enables us to trace treaty design diffusion. We observe that some countries copied and pasted almost entire treaties from third states. Israel, for instance, heavily drew from British BITs when devising its own BIT program. Hungary, Czech Republic and Slovakia, in turn, used the BITs they concluded with each other in January 1993 as templates for their subsequent treaty negotiations resulting in strikingly similar agreements. Diffusion also happens on the clause level. We discovered, for instance, that the language of a public policy exception first appearing in Article 11 of the 1985 BIT between Singapore and China later diffused to India, Mauritius and half a dozen African countries. What makes the clause special is that it was conceived and is exclusively being used by developing countries making it one of the rare treaty design innovations in investment law that is indigenous to the Southern hemisphere.

Fourth, the approach we developed allows us to assess the novelty of newly concluded agreements. The Transpacific Partnership (TPP), for instance, was initially heralded as a “new and high standards agreement”. Our metric reveals how new it actually is and how high the standards are that it sets. We found that 81% of the text of the TPP investment chapter is taken verbatim from the 2006 USA-Colombia Free Trade Agreement. The remaining 19% are mostly used to clarify and further refine already existing standards. Hence, while it is true that the TPP investment chapter sets higher standards as compared to some of the earlier BITs with which it overlaps, it is very much a continuation of prior US practice rather than an IIA 2.0.

Computational analysis of international law thus provides an efficient and effective way to investigate the hidden structures of the international investment law universe revealing new and surprising insights. At the same time, the presented research offers only a glimpse of the multitude of opportunities that computational international law still holds in store. As computers turn the flood of legal information from a burden into a resource, hitherto impossible research avenues are opening up from the quantification of international law’s fragmentation to the investigation of state practice and opinion juris in 195 countries. Exciting times lie ahead.

Akhbar Beirut S.A.L. Guilty of Contempt, STL Found: One Small Verdict for a Tribunal, a Giant Leap for International Justice?

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor.]

On July 15, 2016, the Special Tribunal for Lebanon (STL) Contempt Judge Nicola Lettieri entered a guilty verdict against two co-accused standing trial for designedly violating confidentiality of several purported Prosecution witness identities in the case of Ayyash, et al. The special thing about this verdict is that one of the co-accused is a Beirut-based corporation called Akhbar Beirut S.A.L. It owns the newspaper and website that hosted the two articles pretending to reveal confidential information on the protected witnesses – a conduct that, in the Judge’s view, may have affected public confidence in the Tribunal’s ability to protect such information, and the potential witnesses’ determination to cooperate. Therefore, on July 15, 2016, for the first time in history a corporation was convicted of contemptuous conduct by an international criminal tribunal.

Earlier this year, the STL acquitted of similar charges another Lebanese corporation. Ironically, Judge Lettieri, who may have opened a new chapter in the history of the corporate liability in international criminal law with these two verdicts, wished he would not: throughout the two contempt matters involving the corporate accused, he consistently expressed a firm opposition to the STL’s exercise of jurisdiction over corporate entities.

Obviously, both cases set an important precedent in terms of the corporations’ principled amenability to trial before international courts, for interfering with their administration of justice or possibly other criminal conduct. They may incite other tribunals to look more closely at their law for any impediments to the punishment of corporations. The plain reading of the Rome Statute, for example, does not preclude the institution of the Article 70 proceedings against a corporation – for destroying, tampering or interfering with the collection of evidence, as may be the case. The drafters’ rejection of the corporate liability for the core crimes at the preparatory stage is not necessarily indicative of any such intent in respect of the offences against the administration of justice.

However, the cogency of the proposed model of attributing responsibility to a corporation is rather limited. Specifically, having concluded to the absence of an applicable international model, Judge Lettieri borrowed wholesale the provisions of the Lebanese criminal legislation, requiring that the following facts be established: (i) criminal liability of a specific individual; (ii) this individual’s power to act in the name of the corporation; (iii) that the individual acted on behalf of or using the means of the corporation.

Judge Lettieri reasoned as follows:

“In its decisions, the Appeals Panel highlighted the “unique link between [Lebanese law] and this Tribunal” and the Tribunal’s “hybrid nature”. I thus find significant that the corporate Accused is domiciled in and substantially operates in Lebanon. As it was foreseeable from Lebanese domestic law that certain conduct might give rise to corporate liability, I consider that looking to the material elements of the pertinent Lebanese law would not violate the rights of the Accused; particularly in the absence of contrary provisions in the Tribunal’s Statute or Rules. Finally, I am mindful that, in addition to being the domicile of the corporate Accused, Lebanon is where the alleged acts and conduct in this case occurred and more broadly is at the heart of the Tribunal’s mandate”.

From this reasoning, it is unclear whether Lebanese law is intended generally to govern corporate responsibility at the STL, or whether the applicable law will each time be determined by one or a set of connecting factors, such as the accused’s place of registration, place of business, and/or place of crime.

On the plain reading of the appeals decision, the Appeals Panel is tending towards the second option. In affirming Judge Lettieri’s reasoning, it circumscribed its scope of application to the facts and circumstances of the matter under review, stating: “In light of these factors, the Appeals Panel finds that, in this case, the elements for the attribution of criminal liability to legal persons are to be found in Lebanese law under Article 210 of the [Lebanese Criminal Code]”.

There is nothing inherently flawed about the connecting-factors-based approach to the choice of law governing the corporate accused’s liability. However, it makes no contribution to the development of a general international corporate criminal liability concept.

In developing such concept, inspiration should be sought elsewhere in international law. The law on the responsibility of international organisations for internationally wrongful acts may be informative. The 2011 International Law Commission’s Articles on the matter contain a detailed overview of the different case-scenarios under which a conduct may be attributable to an international organisation. Contrary to the STL’s model, the Articles do not, for instance, predicate the entity’s responsibility on the established responsibility of a concrete individual or organ within this entity.

The International Criminal Court at 14

by Shehzad Charania

[Shehzad Charania was the Legal Adviser and Head of International Law at the British Embassy in The Hague between January 2013 and August 2016.  The views set out in this article are personal, and do not necessarily reflect the views of the British Embassy or the Foreign and Commonwealth Office.]

Earlier this year, the King of the Netherlands opened the new permanent premises of the International Criminal Court in The Hague, in a ceremony co-hosted by ICC President Silvia Fernandez and the President of the Assembly of States Parties Senegalese Justice Minister Sidiki Kaba.  The Secretary General of the United Nations Ban Ki-Moon also attended, along with former ICC Presidents and Judges.

In his remarks, the Secretary General said that the inauguration was a “milestone in global efforts to promote and uphold human rights and the rule of law”.  The ASP President said that this was a “day of hope for all victims of mass crimes in the world”.  President Fernandez announced that the Court was “here to stay”.

But setting the rhetoric aside, how does the ICC’s report card look since it opened its doors 14 years ago?

The successes

Clearly, the ICC has come a long way since its establishment in 2002.  It has had notable successes.  The Prosecutor securing a first conviction against Thomas Lubanga was a significant step forward in bringing accountability for the recruitment and use of child soldiers; the second conviction saw the accused Germain Katanga apologise to his victims.  The conviction in March of former DRC Vice President Jean Pierre Bemba was the Court’s first for rape.  Earlier in March, the Court received its first guilty plea when Ahmad al-Faqi al-Mahdi admitted to the destruction of historical and religious monuments in Timbuktu.  And across all the cases, 25,000 victims are formally participating in ICC proceedings, with over 180,000 beneficiaries of assistance through the ICC’s Trust Fund for Victims.

The setbacks

But the Court’s successes have arguably been overshadowed by a series of high-profile setbacks. For the Office of the Prosecutor, the most notable have been in Kenya, where the Prosecutor’s six attempted prosecutions for the 2007-08 post-election violence have all ended in failure, the final case against Kenyan Deputy President William Ruto collapsing in April.  Last year, the Prosecutor had to withdraw similar charges against President Kenyatta.  In the ruling in the case against the Deputy President, the majority referred to witness intimidation and, in the words of the Presiding Judge, “political meddling”.  But there have also been highly critical judicial decisions regarding the quality of the prosecution’s investigations and evidence across all the Kenyan cases.

The challenges

The Court’s current challenges are stark.  Yet it is important to note that many of these are primarily for its Member States rather than the institution to address.  But failure to deal with them reflects on the effectiveness, legitimacy and credibility of the ICC itself.  Here are some.

First, all the cases and eight of the nine investigations at the ICC are African, leading to accusations of racism and neo-colonialism, and questions around the Court’s legitimacy.  Admittedly, the majority of the Court’s situations were referred to the Prosecutor by African countries themselves.  But the Prosecutor has faced criticism about the fact that in those same situations there have been indictments only of opposition figures, opening up the Court to further accusations of partial justice, and allowing the ICC to be used for political ends.

Second, the absence of the US, Russia, China and India means that there will always be a question mark over the ICC’s relevance.  More urgently, the Court does not have jurisdiction over the worst crimes taking place in the world today: neither Syria nor Iraq are members of the Court, and Russia and China have vetoed a UN Security Council resolution allowing the ICC to step in on Syria.

Third, inadequate State cooperation remains the biggest obstacle to progress.  Just a few months ago, the ICC’s Pre-Trial Chamber made findings of non-cooperation against Djibouti and Uganda for not arresting Sudan’s President Omar Al-Bashir, in line with their legal obligation under the Rome Statute, when he stepped onto their territory.  And the cases against the Kenyan President and Deputy President, as well as the ongoing investigations into crimes committed in Cote d’Ivoire in 2012, have starkly posed the question of how the Court can prosecute serving high-ranking State officials when it needs the assistance of authorities in those very States to do so effectively.

Fourth, witness tampering is becoming an increasing part of the Court’s workload, diverting precious resources from the investigation and prosecution of the most serious crimes the ICC was set up to deal with.  The Court’s most expensive trial in 2016 was such a case.

Fifth, it takes years to administer international justice in a single case, in part due to the complexity of the crimes involved.  The current timescales could be reduced through more efficient procedures, and this is the ICC President’s top priority.  But these cases will never be as fast as simpler, domestic cases.  Many survivors will die before they see accountability.

Finally, international justice costs money.  And as States begin negotiations on the 2017 budget, they understand that unlike other international organisations they cannot tell the institution what to do – which investigation to open, who to pursue, and who to convict or acquit.  The Court must use States Parties’ own money to pursue individuals in those same States, sometime the heads of those States.  That’s part of the “price” of international justice.

The future

The ICC, therefore, faces an uphill task, not made easier by what is potentially on the horizon.  The Court is already investigating Russian and Georgian actions during the 2008 armed conflict.  And it is conducting preliminary examinations outside Africa – which could lead to full investigations and therefore indictments – in situations relating to: Ukraine, where the Prosecutor is likely to be examining allegations against Russia following the annexation of Crimea; Afghanistan, where amongst other things allegations of detainee abuse by US officials are being considered; possible war crimes by all sides in the Occupied Palestinian Territories; and of course Iraq. In addition, within the next couple of years, the Court is likely to have jurisdiction over the crime of aggression, opening up a whole new political dimension to the ICC’s work.

But for countries such as the UK which attaches serious importance to the rules based international system, the test of its commitment is about seeing institutions such as the ICC through both the good and the bad times. That means ensuring full cooperation, resisting threats to its independence, speaking up for the Court when it is under attack, and all while continuing to push for serious institutional reform.

More than ever, the ICC needs its friends, in particular States Parties and NGOs, to be constructive critics. At the same time, after only 14 years of existence, we should not be surprised that there is more to do within an institution designed to hold the most powerful individuals to account. Instead of lamenting the fact that the ICC is not perfect, we should celebrate the fact that the Court exists at all, and that it is ready and willing to meet the challenges head on.

Senior Teaching Fellow Positions at SOAS

by Kevin Jon Heller

We are looking for two Senior Teaching Fellows. Here is the advertisement:

Salary: £34,336 – £40,448 per annum pro rata inclusive of London Allowance

Fixed term, part time for two years from September 2016

SOAS, University of London is the world’s leading institution for the study of Asia, Africa and the Near and Middle East, offering programmes in arts, humanities, languages, law and social sciences. Inaugurated in June 1916, SOAS has had an international reach since the arrival of its first students in February 1917 and is celebrating its Centenary in this year. As an institution we combine language scholarship, disciplinary expertise and regional focus, and have the largest concentration in Europe of academic staff concerned with these specialisms.

The School of Law invites applications for two year fixed term Senior Teaching Fellow positions available from September 2016.  The vacancies are designed on a 0.5 FTE part-time teaching basis to support postdoctoral individuals who might be seeking to develop an academic career in conjunction with their personal research interests.

You will have academic expertise in an area of the law that is consistent with the SOAS mandate as a specialist institution in the study of Asia, Africa and the Near and Middle East. Ideally, you will also have a PhD in Law.  You will be expected to teach to a high standard undergraduate and postgraduate students in two or more of the following areas of law: Contracts, Property, EU, Human Rights Law and Law and Society in Asia and Africa. You will be expected to engage in teaching-related administration, supervision of Masters dissertations, pastoral care, and administration.

Prospective candidates seeking further information about SOAS and the Department may contact the Head of the School of Law, Professor Carol Tan (ct9 [at] soas [dot] ac [dot] uk).

These are excellent positions. Applications are due August 10. Full information here.

Emerging Voices: Promoting Threat? Assessing the Role of the European Union as an Enforcer of International Law in the Ukrainian Crisis

by Alexandra Hofer

[Alexandra Hofer is a Doctoral Researcher at Ghent University, GRILI member. The topic addressed in this post is based on a paper entitled Promoting Threat: The Effect of European Union Restrictive Measures on the Development of International Law’s Enforcement, a Sociological Approach. All websites were last accessed on 5 July 2016.]

The starting point of this post is related to the renewal of the EU’s economic and sectorial sanctions against the Russian Federation for its destabilizing policies in Ukraine. These restrictive measures were first adopted in July 2014 in reaction to the events in east Ukraine. The measures restrict financial exchanges with Russia and exports of technology needed for oil exploitation and production; they impose an embargo on arms, dual-use goods and technology. They aim at pressuring Russia into using its influence on the Ukrainian separatists and to prevent the transfer of heavy arms across the Ukrainian border. Their objective is to impose costs on Russia for its illegal and destabilizing conduct in Ukraine. (For example, see this.)

Since 2014, renewals have taken place despite signs of sanctions fatigue as certain EU Member States have suggested reconsidering the sanctions against Russia, arguing that the restrictive measures have been ineffective against the Kremlin. (Examples include Greece, Italy, Cyprus and Hungary; French President Hollande). At present, the lifting of the European measures is dependent upon Russia’s implementation of its obligations under the Minsk Agreements and its contribution to the peaceful settlement of the dispute with Ukraine.

This post considers whether such restrictive measures are an effective means for the EU to resolve the Ukrainian crisis and enforce international law. In order for this to be the case, the measures need to be successful in convincing (or pressuring) Russia to change its policy in east Ukraine and cease its wrongful act. Although the effectiveness of sanctions is generally an issue addressed by political scientists, it is an equally important question for international lawyers who are interested in ensuring compliance with international legal obligations. Can sanctions such as those imposed by the EU change Russia’s behaviour? We are therefore interested in these measures’ coercive effect (see Francesco Giumelli ‘How EU sanctions work. A new narrative’ (2013) n° 129, 13 EUISS Chaillot Paper).

It is relatively safe to say that the EU uses its sanctions policy in order to play out its role as a civil and liberal power (see for example Barbara Delcourt ‘Au nom de quoi sanctionner et punir?’ (2015/1) nº97 Revue internationale et stratégique 79). Not only is the EU’s external action guided by the norms that contributed to its creation, which are ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’, through its international relations the organization seeks to advance them in the wider world (as illustrated by the Treaty on European Union, Title 1, Article 3 and Title V, Chapter 1 ‘General Provisions on the Union’s External Action’, Article 21).

It is within the scope of this role that the EU adopts restrictive measures. Accordingly, through these measures the EU seeks to enforce compliance with one of the most fundamental rules of international law by pressuring Russia into changing its behavior towards Ukraine and complying with the Minsk Agreements. Notwithstanding the high structural costs of the sanctions to Russia’s economy and the negotiation of a ceasefire, it would appear that the sanctions have not encouraged Russia to change its policy in Ukraine but have instead been used to enforce anti-EU propaganda and have further alienated Russia from the EU, resulting in a stalemate between the two parties. Russian high-officials have stated that the sanctions against it are illegal and that they have contributed to souring relations between the EU and Russia, leading to a new Cold War (See these two statements: 1 and 2.) Tit-for-tat sanctions have followed as Russia has adopted its own measures against the EU. Finally, Russia has avoided isolation by forging new alliances.

Acts of aggression and the imposition of sanctions do not come about in a vacuum. Instead, they are the product of an interaction between agents whose respective identities and perceptions of a situation cause them to act in a certain way. From a sociological perspective, it would appear that the EU’s coercive measures have not encouraged the Kremlin to change its policy in Ukraine and cease its wrongful conduct. Taking into account constructivist notions of State identity and norms, the sanctions may have had the effect of encouraging Russia to further pursue its destabilizing, and illegal, policies in Ukraine. This is because the restrictive measures cause Russia to continue to view the EU as a threat. In as much as this perception of threat caused the Kremlin to pursue its destabilizing policy in the first place, the restrictive measures are not giving Russia incentive to change its behavior.

Indeed, as argued by Hopf in a recent article (Ted Hopf ‘”Crimea is ours”: a discursive history’ (2016) vol. 30(2) International Relations 227), Russian policies in the Ukraine can be understood as the result of Russia’s identity as, inter alia, a regional power that has historical and fraternal ties with Ukraine and its interpretation of Western policies coupled with the circumstances that arose in Ukraine. Russia may have felt threatened by NATO’s expansion and by Ukraine’s turn to the EU, which would have been perceived as the broadening of Western influence in Eastern Europe. Indeed, President Putin has expressed misgivings about the military alliance’s turn to Eastern Europe, which prevents the European continent from uniting and moving away from the Cold War mentality (see for example, 1 and 2); this concern has been expressed over the years, as illustrated by Putin’s speech at the Munich Security Conference in 2007. Under these circumstances, Russia reacted dominantly, or aggressively. When Russian officials state that the restrictive measures bring EU-Russian relations back to the Cold War, this is an indication that the sanctions contribute to the perception that the EU poses a threat. The Kremlin therefore continues its destabilizing policies in Ukraine because they are believed to be necessary to safeguard Russian interests and standing in the region. In a way, not complying with the EU’s demands become a value to the Russian Federation, who would have too much to lose if it were it to give into Western pressure (such as, for example, its standing as a regional power).

In conclusion, the argument here is that the restrictive measures have been counterproductive because they have contributed to promoting a situation of mutual distrust between the EU and the Russian Federation. Each actor continues to view the other as a threat and bases its response on this perception. This would mean that contrary to encouraging Russia to cease its policy in the Ukraine, the sanctions give Russia incentive to continue its actions in the region, which gives the EU incentive to pursue its sanctions policy, etc. Russia’s interpretation of Western powers’ policies in Ukraine and NATO’s expansion towards the East caused Russia to feel its fraternal ties with Ukraine were threatened and act aggressively. In response, the EU believes the norms it wants to defend in the ‘wider world’ are threatened and responds – with Kiev’s approval (see 1, 2, and 3)– by adopting coercive measures; this also allows the organization to fulfil its identity as a civil and liberal power that aims at promoting peaceful relations between States (see TEU, Title V, Chapter 1, Article 21(2)(c)). In the EU’s view, ‘it has a special responsibility for peace, stability and prosperity in Europe’ (see this statement). Instead of feeling the negative costs of its actions, the ban on exportations to Russia in technology is used as an opportunity to develop Russian industry and steps are being taken to substitute former EU and American agricultural imports (see here and here). Instead of being enforced, international law is continuously violated. The challenge is to free both parties from the deadlock. Unfortunately, this is unlikely to occur with the breaking down of communication, the pursuit of NATO operations in Eastern Europe and the continuation of the sanction tit-for-tat. Given this counterproductive outcome, the EU’s role as an enforcer of essential legal norms is being undermined. Nevertheless, as Wendt wrote: ‘if states find themselves in a self-help system, this is because their practices made it that way’ (Alexander Wendt ‘Anarchy is what States Make of it: The Social Construction of Power Politics’ (1992) 46:2 International Organization 391, 407). Hence, if the EU and Russia want out of the stalemate, they need to change their practices. The EU should focus on tools that promote dialogue and communication, which would bridge the gap and help Russia no longer perceive the EU as a threat. This may then have the effect of encouraging Russia to demilitarize in Ukraine.

Weekly News Wrap: Monday, August 1, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

  • United Nations children’s agency UNICEF said it is continuing its aid work in northeastern Nigeria, a former stronghold of Islamist militant group Boko Haram, despite an attack on a humanitarian convoy earlier this week.
  • Several people have been killed in an assault on a police base in the Somali capital, Mogadishu.
  • An aircraft wing part found in Tanzania is “highly likely” to be part of missing Malaysia Airlines flight MH370, an Australian government minister said on Friday, in what would be the second confirmed piece of the jetliner.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • The head of an Australian inquiry into the abuse of children in detention resigned on Monday, four days after being appointed to investigate prison video of aboriginal boys being abused, citing his lack of support from the country’s indigenous leaders.
  • Australians have rallied against the alleged mistreatment of young people in detention, including the hooding and physical restraint of teens, amid calls for an inquiry into the abuse to be expanded and the United Nation High Commission on Human Rights called on Australia on Friday to compensate children abused in prison.

UN/World

Emerging Voices 2016

by Jessica Dorsey

Our Fourth Annual Emerging Voices Symposium will kick off tomorrow. It features contributions from doctoral students and early-career academics or practicing attorneys posting about a research project or other international law topic of interest.

The Symposium will feature a few posts per week and will run for the next month. We hope you’ll join the conversation!