Recent Posts

China’s Vice-Minister for Foreign Affairs Casually Slanders the South China Sea Arbitral Tribunal

by Julian Ku

I have been trying to move on from writing about the blockbuster UN Convention on the Law of the Sea arbitral award on the South China Sea.  As our readers know, I have written way too much on this topic lately.  But the Chinese government’s outrageous statements criticizing the award deserve one last post from me before I head out for a South China Sea-free vacation this summer.

In particular, I wanted to turn our readers’ focus to statements such as those made by China’s Vice-Minister for Foreign Affairs, Liu Zhenmin, shortly after the award was released.  In his remarks denigrating the arbitral tribunal, Liu implied that the arbitrators may have been bribed to adopt the views of the Philippines in the award.  Below is an excerpt of a transcript of his remarks:

Besides, who supported the Arbitral Tribunal? The arbitrators are paid by certain parties, but who? Maybe by the Philippines or other countries. This system is completely different from the ICJ or the ITLOS.

Judges of the ICJ or the ITLOS receive salaries from the UN for the sake of independence and impartiality. But these five judges of the Arbitral Tribunal are doing it for a profit, and their payments come from the Philippines and probably others, too. We are unsure about the details but they do provide paid services.

These comments are outrageous on so many levels.   Liu knows, or should know, that the arbitrators were paid by the government of the Philippines.  The tribunal announced publicly in its Rules of Procedure Article 31-33 that it was exercising its treaty powers under Article 7 of Annex VII to UNCLOS to require payment from both parties. But Liu also knows that the only reason the arbitrators received all of their compensation from the Phillippines government is because China refused to participate and refused to pay its share. If China had actually showed up, it would have been obligated under Article 7 of UNCLOS Annex VII to pay half of the fees.  There is no evidence, and Liu cites none, that any government other than the Philippines paid the arbitrators.  Liu also conveniently fails to mention his own government’s failure to pay its fair share.

Such payments are almost always made in advance of the award being issued, or even before the proceedings begin.  In other words, the payments could not influence the award’s contents because the Philippines did not know the content of the award before they made their payments.

This manner of compensating arbitrators is so standard and unremarkable that China’s own leading commercial arbitration organization, CIETAC, allows in Rule III.C.1 for one party to pay fees for the entire arbitration even if the other party does not show up and refuses to pay its own share.   This is essentially the situation that the Philippines found itself in.  It could continue to demand that the Tribunal seek money from China for its share of the expenses, or it could pay up. It chose to pay China’s share as well, and (as a reward) is now being lambasted by China for doing so.

Vice-Minister Liu is not a party hack who doesn’t know anything about arbitration.  He is, in fact, on the roster of arbitrators available for appointment by the Permanent Court of Arbitration and he is a arbitrator of the aforementioned CIETAC.  In other words, Liu knows exactly how arbitration works, and he is feigning ignorance in order to defame the character of the UNCLOS arbitrators.

In the same press conference, Liu also claimed that UNCLOS arbitration is some sort of aberration that has never happened before, unlike the more established ICJ or ITLOS systems.  On this point, Liu is flatly incorrect. In fact, there have already been seven UNCLOS arbitrations convened under the exact same rules that were applied to the Philippines/China arbitration.  In fact, as Liu well knows, the Chinese government freely chose arbitration instead of the ICJ or ITLOS for any dispute settlement under UNCLOS.

When acceding to UNCLOS, China could have chosen under Article 287 to specify the ICJ or ITLOS as its preferred forum for dispute settlement.  It did not do so, thereby forcing any dispute involving China to be sent to UNCLOS arbitration pursuant to Article 287(5).  In other words, the Chinese government made a conscious choice to avoid the ICJ and ITLOS for disputes arising under UNCLOS.  It is astounding for one of China’s leading diplomats to denigrate the integrity of a system of dispute settlement that China freely chose and in fact demanded.

Liu’s borderline defamatory remarks matter even if China and the Philippines eventually work out a settlement of their dispute.  Liu has knowingly denigrated the integrity of five arbitrators – three of whom continue to sit on the International Tribunal for the Law of the Sea – using facts he almost certainly knows are false. As the esteemed Professor Jerome Cohen of NYU has noted, in many jurisdictions, this could be enough to constitute defamation or slander.  Since Liu would have immunity for his remarks, perhaps the softer sanctions could be imposed, such as demanding his resignation from the PCA’s roster of arbitrators or perhaps his removal from the position as an Associate Member of UNIDROIT.  At the very least, this sort of casual character assassination should not be forgotten nor forgiven.

U.S. Government Prepares to Approve First Private Space Expedition to the Moon

by Julian Ku

This is big.  Huge, even. From the Wall Street Journal:

U.S. officials appear poised to make history by approving the first private space mission to go beyond Earth’s orbit, according to people familiar with the details.

The government’s endorsement would eliminate the largest regulatory hurdle to plans by Moon Express, a relatively obscure space startup, to land a roughly 20-pound package of scientific hardware on the Moon sometime next year.

The main obstacles to this commercial moon mission are not technical or financial. The main problem appears to be legal.  First, the U.S. government must approve the launch (this appears to be happening soon).  Second, the U.S. and the world need to figure out how to regulate commercial exploitation of the moon, because companies like “Moon Express” are not in this for the science alone.  The Moon Treaty seems to prohibit any commercial exploitation of the Moon’s resources under Article 11 (“[N]atural resources of the moon… shall [not] become the property of any ..person”), but the U.S. never ratified it and neither did any of the other major spacefaring nations.

So we are left to the “Outer Space” treaty, which the U.S. did join, but which has much less emphatic limitations on commercial development of celestial resources (as I argued here and here).  I think it is safe to say commercial exploitation of the moon and asteroids is going to happen sooner than we think (starting next year?).  The law will have to catch up later.

The Corporate Joust with Morality

by Caroline Kaeb and David Scheffer

[Caroline Kaeb is Assistant Professor of Business Law and Human Rights at the University of Connecticut.  David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern Pritzker School of Law. They are co-chairs of the Working Group on Business and Human Rights of the U.N. Global Compact’s Principles for Responsible Management Education.]

The corporate world is struggling with two competing visions of corporate ethics as the governance gap in national capitals stymies effective responses to global challenges.

The first vision gaining steam in recent years has been a form of corporate activism we call “corporate counterattack.”   Some major multinationals are increasingly challenging and indeed changing poorly conceived government policies or occupying the policy void.

Take the United States. Last year Apple, Angie’s List, Anthem, SalesForce, Roche Diagnostics, Cummins, Eli Lilly, and companies headquartered in Indiana successfully brought heat down on Governor Mike Pence to amend legislation that had allowed businesses, citing religious freedom, to discriminate against gays and lesbians.  The uproar caused the state initially to lose perhaps dozens of conferences and $60 million of anticipated revenue. Walmart similarly counterattacked against discriminatory legislation in Arkansas.

Google and other multinational corporations in the deep South balk at operating in states that glorify the Confederate flag or enact legislation undermining minority rights.  The latest examples are North Carolina and Mississippi, where laws discriminating against gay, lesbian, bisexual and transgender people have prompted strong corporate reactions. PayPal cancelled a $3.6 million investment in North Carolina. Google Ventures froze new investments in the state and other companies are reconsidering their plans. Over 140 CEOs and business leaders of such corporations as Facebook, Bank of America, and Apple signed an open letter to North Carolina Governor Pat McCrory opposing that state’s new law. Such giant corporate employers as Tyson Foods, Nissan, Toyota, and MGM Resorts International have loudly protested Mississippi’s regressive law. These collective business voices challenge state governments to protect human rights while such public authorities seek their corporate investments.

Meanwhile, in Europe some corporations have addressed the humanitarian crisis swamping that continent with philanthropy and commitments to train and employ migrants, including refugees, from the Middle East and North Africa. A newly-formed partnership of companies, including McDonald’s, MasterCard, Facebook, and DreamWorks Animation, generates private funds for the World Food Programme to feed millions of migrants by providing free ad time and access to digital promotion.

This stands in contrast to the chaos that unfolded on the European continent as governments swung further to the right and shut their borders, lacking any “big ideas” as human misery cloaked the endless flow of destitute individuals. The governance gap in Europe, North Africa, and the Middle East shows few signs of narrowing, thus assigning even greater responsibility to corporations that are willing to act boldly and innovatively to address humanitarian needs.

In early 2015 Sony Corporation marketed “The Interview,” not only for revenue but also in defense of freedom of expression after North Korea, or its agents, apparently launched cyber-attacks on the company so as to intimidate it into locking up the comedy critical of Kim Jong-un.

In the wake of recent terrorist attacks in Europe and the United States, internet giants struggle to find the right balance between privacy and security in the face of calls for more government surveillance and information sweeps that would impinge upon privacy rights globally.  For example, Apple recently refused a lower federal court order to reverse engineer a dead terrorist’s locked iPhone in San Bernardino, California, so as to gain password access and thus assist the FBI in its investigation of the deadly terrorist attack in that city. Ultimately the FBI used other means to access the iPhone.

National security concerns are of vital importance. But Washington’s insistence that Apple develop software to unlock the privacy of the iPhone is potentially dangerous. It exposed Apple and other cyberspace companies to comparable demands by repressive governments and even other democracies that will be inspired to compel corporate complicity in undermining human rights protections for spurious national security priorities. Among the victims might be human rights activists and political dissidents seeking to advance principles embodied in the American Bill of Rights and international human rights treaties.

In defense of freedom of expression, Google has fiercely challenged an extension of the European privacy right to be forgotten to non-European Union internet domains (such as google.com), regardless of whether the information was accessed from within the EU or anywhere else in the world. This is an example of competing public policy priorities that need to be weighed and possibly balanced with one another, and business has a vital role to play in that process.

None of these companies perfectly embraces principles of social responsibility and sometimes they overlook human rights or environmental standards in one part of the world while embracing them in other societies.  But there is no shortage of opportunities being seized by multinational corporations to significantly influence the protection of human rights and advance worthy social policy goals.  Fifteen years of growing corporate participation in the United Nations Global Compact, with its pledges on human rights, labor, environment, and anti-corruption, demonstrate a mindset shift that generates constructive societal contributions and a growing body of counterattacks against regressive or failed public policies.

However, there are fierce winds blowing against such initiatives.  The second and darker vision of corporate ethics remains wedded to short-term profits regardless of societal impact and even if fraudulently obtained.  The colossal Volkswagen deceit, where 11 million diesel-fueled and supposedly eco-friendly vehicles were apparently rigged to cheat on emissions tests, blatantly screamed “go to hell” to corporate social responsibility.  Coca-Cola paid scientists to argue that physical exercise is the antidote to high-sugar drinks, so consumers were encouraged to keep chugging and then jogging off the fat while Coke prospers.

General Motors, which settled with the Justice Department for $900 million, ignored and then delayed reacting to an ignition flaw in its vehicles that resulted in 124 deaths and 275 serious injuries. One young tycoon, indicted on securities fraud, shamelessly inflated the price of a 62-year old drug to treat serious infections from $13.50 to $750 and thought that was just fine in a world ruled by hedge funds.  A chief executive was recently sentenced to 28 years in prison for knowingly shipping peanut butter laced with salmonella, killing nine people and inflicting illness on at least 700 others.

Without waiting for government mandates, major corporations are joining a growing global coalition to convert to renewable energy sources.  But for decades Exxon Mobil aggressively funded climate change deniers despite the role of carbon-based fuels in that scientifically proven man-made phenomenon. Over the years, 62 resolutions have been introduced at shareholder meetings to compel the company to confront the reality of climate change in its operations and investments. But management and a majority of shareholders have voted down each of those resolutions, including 11 of them at the last shareholders meeting in May. Divestment campaigns by activists continue to dog Exxon Mobil. At least Rex Tillerson, the company’s chief executive, recently reiterated Exxon Mobil’s support for a carbon tax and further studies of the “risk” of climate change.

Former Massey Energy CEO Don Blankenship is now serving a one-year sentence in federal prison following the deaths of 29 miners he employed. He must have thought, as he managed one of the largest energy companies in America, that he could somehow evade fundamental coal mine safety standards and speak and act as if he was just barely crawling out of the Dark Ages of labor rights, and hence human rights.   If Blankenship took just one refresher course at any leading business school today, could he possibly walk out of that class with the same reckless views he exhibited on the job for years? Perhaps he would, which is why focusing on what business schools, and what they teach business students in core management classes as well as business practitioners in their executive programs, is important to review and get right. This entails teaching the protection, enforcement, and indeed advancement of human rights and other societal imperatives within the corporate world. It is in business schools in particular where it all starts, to shape the students’ minds to do rights-based business in the 21st Century.

This duel between corporate responsibility and corporate deceit and culpability is no small matter.  The fate of human society and of the earth increasingly falls on the shoulders of corporate executives who either embrace society’s challenges and, if necessary, counterattack for worthy aims or they succumb to dangerous gambits for inflated profits, whatever the impact on society.

The fulcrum of risk management must be forged with sophisticated strategies that propel corporations into the great policy debates of our times in order to promote social responsibility and thus strengthen the long-term viability of corporate operations.  We believe that task must begin in business schools and in corporate boardrooms where decisions that shape the world are made every day.

Weekly News Wrap: Monday, June 6, 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

UN/World

Events and Announcements: June 5, 2016

by Jessica Dorsey

Event

  • Between Europe and the United States: The Israeli Supreme Court in Comparative Perspective is being held Monday, June 27, 2016 – 9:00am to 6:00pm at the Benjamin N. Cardozo School of Law. For more information, click here. Despite a shared commitment to constitutional norms and a shared intuition that constitutional norms reflect universal principles, the United States and Europe interpret constitutional norms in markedly different ways. To take but one example, European privacy norms are shaped largely around the concept of dignity and inherited ideas of honor, whereas American privacy norms have historically rested on the value of liberty, especially liberty vis-à-vis the government. Both systems shape constitutional norms against the background of their distinct social and political traditions. Israel is poised between these two older legal cultures and is in dialogue with both. Does Israeli constitutional jurisprudence share more with Europe or with the United States?  Do particular social and political ideas within Israeli legal culture account for the disparate alliances? What are the particular areas in which Israel shows an affinity for one or the other, or neither, legal tradition?
    The conference is free and open to the public, but an RSVP is requested. Please email ISCP [at] yu [dot] edu with your name, affiliation and contact information.

Call for Papers

  • Gas: we breathe it, we burn it, we weaponise it, we control it. Whether banned, regulated or free-flowing, gas is our immediate environment, connecting us, keeping us warm, keeping us cool, creeping through the cracks. Explosive or sedative, it facilitates killing and curing alike. Gas leaks, escapes, and traverses boundaries, including legal boundaries. Certain gases are subject to international law, but even the most regulated gases may escape, or be unleashed. The London Review of International Law invites submissions on the subject of gas. These may touch on specific regimes regulating particular gases or groups of gases, they might look at historical processes centring on the control or release of (manufactured or natural) gases, or they might focus on the background role gas has played behind international legal processes, whether in relation to energy, climate, war, or simply the conditions of lawmaking, law enforcement, or legal speculation. Guidelines for submissions can be found under ‘Instructions to Authors’. In addition to articles, proposals for review essays and photographic (or other image-based) essays will be very welcome. Abstracts of no more than 500 words should be sent to a [dot] z [dot] wu [at] lse [dot] ac [dot] uk) not later than 15 June 2016. Respondents will be notified of the outcome of their proposal not later than 1 July 2016.

Announcements

  • Oil Gas and Energy Law 2 (2016) is now out – Emerging Issues in Polar Energy Law and Governance, prepared by Dr Tina Hunter (Aberdeen University Centre for Energy Law), this special on Emerging Issues in Polar Energy Law and Governance provides a up-to-date analysis of many aspects of a rapidly changing region, and the legal issues that dominate the Polar regions.
  • Di Tella University, from Argentina, is delighted to announce that the fourth issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. The Journal is the first Latin American publication devoted to promoting the discussion of general topics of Public International Law from different perspectives in the region. LADI’s fourth issue includes articles by William Schabas, Roberto Gargarella, and Alejandro Chehtman, as well as discussions about international criminal law in the Americas, the role of international law in the early history of Latin America, and foreign debt restructuring, amongst others. The latest issue can be found here.  

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.

Why the World Cup of the Unrecognized Matters [Updated]

by Chris Borgen

States and nations are not the same thing.  A nation is a “people,” itself a difficult concept to define under international law. A state is a recognized political entity that meets certain criteria. International lawyers will tell you that the characteristics of statehood include a defined territory, a government, a permanent population, and the ability to enter into foreign relations.

State formation in the 19th century and also right after World War I often sought to build states for nations (hence the term “nation-state”) but the terms are not coterminous.

So what are the hallmarks of nationhood? Many know in their hearts that there may be no more important mark of nationhood than a national soccer team. C’mon, you know it’s true.

And sometimes, peoples would like to remind you that they are nations—if not states!—and want to be recognized as such (nations or states, it gets a little blurry).

So, pay attention, soccer fans and international lawyers, because this weekend will be the final match in the 2016 Confederation of Independent Football Associations (ConIFA) World Football Cup, sometimes referred to as the World Cup of the unrecognized.  According to this NPR report, host Abkhazia is the current favorite after Western Armenia and Kurdistan were unexpectedly eliminated.

The first ConIFA World Football Cup was played in 2014 and seems to be the successor to the VIVA World Cup, about which I had previously written.

ConIFA should not be confused with FIFA, the international federation of football associations. As I had explained in a post from a couple of years ago, membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, as England and Wales are separate associations, they have separate World Cup teams. Nonetheless, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Thus, although membership in FIFA is technically not based on statehood, the process largely relies on statehood and state-based football organizations (but for noted exceptions, such as England and Wales). Consequently, unrecognized entities such as South Ossetia and Nagorno Karabakh have little chance of seeing their football associations become part of a confederation, let alone FIFA.

Now consider ConIFA’s  membership rules, which are linked not to statehood, but to “nationhood” or being a “people”:

CONIFA is made for national teams that represent a nation which is not a member of FIFA (yet). For that reason only non-members of FIFA can join CONIFA. The second requirement is that the applicant is represent of a nation. The following table explains in detail what we consider a “nation”:

1.The Football Association is a member of one of the six continental confederations of FIFA.

2. The entity represented by the Football Association is a member of the IOC.

3. The entity represented by the Football Association is a member of one of the member federations of ARISF.

4. The entity represented by the Football Association is in possession of an ISO 3166-1 country code.

5. The entity represented by the Football Association is a de-facto independent territory.

6. The entity represented by the Football Association is included on the United Nations list of non-self-governing territories.

7. The entity represented by the Football Association is included in directory of countries and territories of the TCC.

8. The entity represented by the Football Association is a member of UNPO [Unrepresented Nations and Peoples Organization] and/or FUEN [Federal Union of European Nationalities].

9. The entity represented by the Football Association is a minority included in the World Directory of Minorities and Indigenous Peoples.

10. The entity represented by the Football Association is a linguistic minority, the language of which is included on the ISO 639.2 list.

Every Football Association that fulfills at least one of the above criteria is very welcome to apply for CONIFA membership!

[Emphases and bracketed text added.]

As for the aspiration of at least some of these entities to become generally recognized as states, consider the parenthetical “(yet)” from the first sentence.

And why might a a sports tournament be important to people with much bigger issues to worry about? Because you can cheer your team, wave your flag, feel a sense of unity, sing when your winning and… yes, you can actually win. And if you don’t there’s always next year.

When you live in an unrecognized regime, you take your wins where you can get them.

Whether any of these associations become part of FIFA, let alone whether or not those entities that also seek to be recognized as states will ever achieve that goal, is a long and doubtful journey.  But in many cases that is due to reasons of military intervention, history, and/or international law. For today, there is a football to be played.

President Obama Calls out the Senate on Treaties

by Duncan Hollis

Earlier today, President Obama took time out during his commencement address at the Air Force Academy to make a pointed plea for the value of treaty-making.  Here’s the relevant excerpt from his remarks:

By the way, one of the most effective ways to lead and work with others is through treaties that advance our interests.  Lately, there’s been a mindset in Congress that just about any international treaty is somehow a violation of American sovereignty, and so the Senate almost never approves treaties anymore.  They voted down a treaty to protect disabled Americans, including our veterans, while Senator and World War II veteran Bob Dole was sitting right there in the Senate chambers in a wheelchair.

We don’t always realize it, but treaties help make a lot of things in our lives possible that we take for granted — from international phone calls to mail.  Those are good things.  Those are not a threat to our sovereignty.  I think we can all agree on that.

But also from NATO to treaties controlling nuclear weapons, treaties help keep us safe.  So if we’re truly concerned about China’s actions in the South China Sea, for example, the Senate should help strengthen our case by approving the Law of the Sea Convention — as our military leaders have urged.  And by the way, these treaties are not a new thing.  The power to make treaties is written into our Constitution.  Our Founding Fathers ratified lots of treaties.  So it’s time for the Senate to do its job and help us advance American leadership, rather than undermine it.  (Applause.)

Three paragraphs is not much to fully articulate U.S. interests in treaty-making (let alone give a balanced overview of the arguments over UNCLOS).  Thus, I think the more noteworthy thing here is the fact that the remarks are coming from the President himself.  It’s one thing to call out the Senate on a specific treaty like the Disabilities Convention, but this slap is more systemic. President Obama has not had a good record when it comes to making treaties through the Article II Advice and Consent process.  With the exception of the new START treaty, the Senate has refused to act on most treaties, including certain types of treaties (e.g., tax treaties, fish treaties) that in prior Administrations were entirely uncontroversial.  Thus, we might see this speech as a late shift in strategy, where the White House is moving off treaty-specific pro’s and con’s to reconstruct this issue in constitutional terms.  I’m not too sanguine that the move will be any more successful at getting votes on pending treaties, but the Senate’s response (if any) will bear watching.

What do others think?  Is there anything I’m missing here?

[UPDATE: An astute reader points out that I was incorrect to cite fish treaties as an example of Senate hostility to treaty-making.  In fact, all four treaties that have received Senate advice and consent since 2012 involved fish; in other words, fish treaties are the only treaties that have gotten through in the last four years.  Tax treaties and treaties on scientific cooperation and conservation, which in the past were, like fish treaties, non-controversial, are better examples of the ongoing hostility to treaty-making]

Weekly News Wrap: Monday, May 30, 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

UN/World

Events and Announcements, May 22, 2016

by Jessica Dorsey

Event

  • The Institute of International Shipping and Trade Law of Swansea University will organise a joint one-day seminar on the subject of Lex Petrolea with the Center for Energy, Law, and Business of University of Texas Law School on 21 June 2016 in London. For the flyer see hereFor further information click here.

Calls for Papers

  • The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 17(2) by July 1, 2016. This issue will have a special focus on the legal implications of the Trans-Pacific Partnership, and space will also be available for articles on other issues of international law. Submissions and inquiries should be directed to law-mjil [at] unimelb [dot] edu [dot] au. For more information, please visit the website here.
  • ASIL’s International Economic Law Interest Group has announced a call for papers ahead of its biennial conference September 30, 2016-October 1, 2016 taking place at Georgetown University Law Center. The overall theme is: “Making International Economic Law Work: Integrating Disciplines and Broadening Policy Choices,” and the deadline for paper proposal submissions is June 24, 2016. Please submit an abstract of no more than 500 words and please indicate when you anticipate completion of the paper and whether the paper has been accepted for publication or has been published. If applicable, please indicate place of (anticipated) publication and date. Please also provide a CV or resume, your current affiliation and whether you are a member of the IEcLIG. Abstracts will be peer-reviewed and decisions will be issued on August 1, 2016. More information can be found here.

Announcement

  • The second annual “International and comparative disaster law essay contest” is now launched. This contest is co-sponsored by the International Federation of Red Cross and Red Crescent Societies (IFRC), the American Society of International Law Disaster Law Interest Group (ASIL DLIG), the International Disaster Law Project (IDL) of the Universities of Bologna, Scuola Superiore Sant’Anna, Roma Tre and Uninettuno.The contest is open only to students enrolled in an undergraduate or graduate degree program at any university (anywhere in the world) at the time of submission. Essays may examine any issue related to law and disasters due to natural hazards, but must do so either from a comparative or an international law perspective, or both. Comparative essays should examine laws or legal issues from no less than three countries. The winner of the contest will receive: A monetary prize in the amount of CHF 500. A free annual membership in the American Society of International Law and waiver of fees for attendance of the ASIL annual meeting in April 2017. The winner will also have his or her paper published as a “Working Paper” of the IFRC’s Disaster Law Programme. They will retain copyright of their papers and may subsequently publish them elsewhere, according to the terms of the Working Papers series. A message announcing the name of the winner and runners up of the contest will be sent to all members of the ASIL DLIG, as well as to the co-sponsors and made public on the ASIL website. The deadline for submissions is 31 August 2016.

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.

EU to Help al-Bashir Imprison Refugees

by Kevin Jon Heller

Just when I thought I was beyond being genuinely horrified, Roving Bandit called my attention to a story in Der Spiegel that almost defies words:

The ambassadors of the 28 European Union member states had agreed to secrecy. “Under no circumstances” should the public learn what was said at the talks that took place on March 23rd, the European Commission warned during the meeting of the Permanent Representatives Committee. A staff member of EU High Representative for Foreign Affairs Federica Mogherini even warned that Europe’s reputation could be at stake.

Under the heading “TOP 37: Country fiches,” the leading diplomats that day discussed a plan that the EU member states had agreed to: They would work together with dictatorships around the Horn of Africa in order to stop the refugee flows to Europe — under Germany’s leadership.

When it comes to taking action to counter the root causes of flight in the region, German Chancellor Angela Merkel has said, “I strongly believe that we must improve peoples’ living conditions.” The EU’s new action plan for the Horn of Africa provides the first concrete outlines: For three years, €40 million ($45 million) is to be paid out to eight African countries from the Emergency Trust Fund, including Sudan.

[snip]

The International Criminal Court in The Hague has issued an arrest warrant against Sudanese President Omar al-Bashir on charges relating to his alleged role in genocide and crimes against humanity in the Darfur conflict. Amnesty International also claims that the Sudanese secret service has tortured members of the opposition. And the United States accuses the country of providing financial support to terrorists.

Nevertheless, documents relating to the project indicate that Europe want to send cameras, scanners and servers for registering refugees to the Sudanese regime in addition to training their border police and assisting with the construction of two camps with detention rooms for migrants. The German Ministry for Economic Cooperation and Development has confirmed that action plan is binding, although no concrete decisions have yet been made regarding its implementation.

I think this is what policy wonks call a “bad idea.” Although, to be fair, al-Bashir’s government does know a thing or two about building detention camps:

In the IDP camps, where most of the target groups’ members fled, AL BASHIR has organized the destitution, insecurity and harassment of the survivors. The Ministry for Humanitarian Affairs provides no meaningful Government aid to those displaced, and consistently obstructs or blocks humanitarian assistance from the international community. The Ministry for Humanitarian Affairs blocks the publication of nutrition surveys, delays the delivery of aid, expels relief staff denouncing such acts, denies visas and travel permits, and imposes unnecessary bureaucratic requirements on aid workers. This has the effect of reducing nutrition and access to medical services for protracted periods of time.

Militia/Janjaweed, which AL BASHIR has recruited, armed and purposefully refused to disarm, are stationed in the vicinity of the camps and, with other GoS agents, they subject IDPs to abuses, including killings, rapes and other sexual violence. While the authorities argue that there are armed rebels in the camps, the evidence shows that those attacked are unarmed civilians.

The overall effect of physical attack, forced displacement, destruction of means of livelihood, and denial of humanitarian assistance was that mortality rates among civilians, including principally members of the target groups, remained at critical levels. Between April and June 2004, as deaths directly caused by violence decreased, mortality rates among displaced populations in Darfur remained elevated because of deficient humanitarian assistance. Overall, at least 100,000 civilians – mostly members of the targeted groups – have already endured “slow death” since March 2003.

These paragraphs are from the OTP’s second request for an arrest warrant for al-Bashir, which accused him — inter alia — of “genocide by deliberate infliction on members of the target groups conditions of life calculated to bring about the physical destruction of the group in whole or in part.” The Pre-Trial Chamber issued the warrant.

Little wonder the EU ambassadors wanted to make sure the public never found out about its horrific plan to help al-Bashir build detention camps for refugees. (Query: does the EU have a reputation regarding treatment of refugees left to protect?) Alas, Der Spiegel refused to play along.

But don’t worry, EU ambassadors. There is a silver lining: refugees are not a protected group under the Genocide Convention, so you can’t be accused of complicity in genocide when al-Bashir decides the best way to “solve the refugee problem” is to slowly kill them in the camps you help build.

Symposium: Response–Defining the International Rule of Law and Moving Without Gravity

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the sixth and final post in the Defining the Rule of Law Symposium, based on this article (free access for six months). For the other contributions, see links below.]

I am immensely appreciative of the deep thought, and the time and effort, which the contributors to this Symposium have undertaken. My thanks, too, to the editors of Opinio Juris for enabling this to happen.

My main response to the comments on my article in the ICLQ (free access for 6 months!) is delight that there has been some real engagement with the definition of the international rule of law. For too long there has been a great deal of talk and reference to the international rule of law but far too few attempts at defining it. Each of the contributors offered thoughtful and constructive views as to the definition I proposed, and none dismissed the idea that there could be an international rule of law and none took that view that it could not be defined. This is a significant step.

In terms of their comments, Janelle Diller provides a useful insight into the operation of the international rule of law across pluralistic legal systems and by international organisations, and she warns of the problem of a patchwork of compliance systems in providing a true access to justice in the international legal order. Heike Krieger astutely shows the need for the international rule of law at a time when there are some indications of significant structural changes in the way law is operating as framework for international relations. Joost Pauwelyn is wary of the breaking of a link between domestic rule of law and international rule of law, as he helpfully shows that they can both facilitate and operationalise each other. Indeed, Simon Chesterman notes that I do fall back on domestic law analogies at times in any event. Simon and John Tasioulas focus on the human rights aspects of my definition and, while neither disagrees with the inclusion of human rights, they offer insightful and perceptive comments about how to include and exclude human rights within the international rule of law.

I accept John’s comments about human rights being about values and morality, and I would note that it does become, due to the nature of the international system, also about law. While law constrains and limits human rights (not least by the restriction of obligations being solely placed on states under international human rights treaties), it also offers a language to contest and to argue for the justice that should be part of the international rule of law. I resisted strongly the view that the rule of law must include all human rights, as being both conceptually problematic and as diminishing human rights as distinctive idea. Yet, if the international rule of law is to include access to justice (as I argue it must), it should include those human rights which are directly linked to the means of ensuring the effectiveness of the international rule of law. This requires the inclusion of substantive rights, such as the right to a fair trial and right not to be discriminated against, which are directly related to the rule of law elements of having independent courts and tribunals, and the equality of all before the law. It does not include rights such as the right to privacy or the right to education as, while they do require the rule of law to enable access to a remedy for their violation, they are not an inherent part of the rule of law elements themselves. There is clearly more work to be done by us all on clarifying the relationship between the international rule of law and human rights.

I trust that this Symposium encourages others to undertake work on this difficult and fascinating area. I hope we can all defy gravity a little longer to do so.

Symposium: The International Rule of Law – Defying Gravity?

by Heike Kreiger

[Heike Krieger is Professor of Public Law and International Law at Freie Universitaet Berlin and Co-Chair of the Berlin Potsdam Research Group on The International Rule of Law – Rise or Decline? This is the fifth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here, the third here, the fourth here and the fifth here.]

The awareness of a crisis of international law is widespread. The multiplicity of challenges which the international order currently faces suggests that we might not only be confronted with a temporary situation of instability but with much more deeply embedded disruptions and lasting structural changes. Such challenges and changes require us to reflect upon the state and development of international law and its relevance as a normative order for international relations. Therefore, Robert McCorquodale’s article is very timely. If we want to assess the potential of international law to regulate and to adapt to a changing global order we need to identify the functions, objectives, and the intrinsic value an international rule of law has to offer.

McCorquodale chooses a normative approach and offers a definition for the international rule of law which relies on four objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p. 16). This effort to develop and illustrate a definition of the international rule of law helps us to distinguish structurally more relevant forms of crisis from temporary instabilities:

McCorquodale identifies the doctrine of pacta sunt servanda as a pertinent case of application for his definition. The doctrine “means that states must comply in good faith with legal obligations to which they have consented“. He submits that it forms an incentive for States to subject themselves to legally binding obligations: “This doctrine benefits all states equally, so that each of them has confidence in reaching legal agreements to secure their own interest and to assist in attaining international legal order and stability“ (p. 20). Indeed, the doctrine of pacta sunt servanda is one of the most fundamental elements of the concept of the international rule of law since it relies on the intrinsic value of the law to create stability and a minimum of trust. Thus, the idea of an international rule of law is significantly challenged when the application of this doctrine is called into question. Certain indications suggest that we can presently observe such a development.

The first indication consists in a systematically relevant disregard for inter­national law. Of course, inspite of their legal obligations States have always violated international law. Thus, I agree with McCorquodale that the existence of an international rule of law does not depend on the compliance with “substantive international legal rules“ (p. 14) but that the international rule of law is a relative concept with “varying degrees of adherence to the rule of law, as perfect adherence is ‘an ideal’“ (p. 3/15). The concept of the rule of law works like a principle whose commands maybe realized to a greater or lesser extent and whose objectives can accordingly only be optimized “with the aim of fulfilling them all over time” (p. 28). However, systematically relevant forms of non-compliance might call basic rules, or even the functioning of the system itself, into question since they affect the doctrine of pacta sunt servanda.

A pertinent debate revolves around the rules on the use of force. Whereas Tom Franck’s famous 1970 essay on Who killed Article 2 (4)? suggests that disregard for the prohibition on the use of force is not a new phenomenon, the significant variety of challenges for these rules implies a structurally relevant quality: Unilateral interventions and unilateral interpretations of UN Security Council resolutions in the cases of Kosovo, Iraq and Libya may have contributed to undermining the credibility of intervening States, if not of the whole Charter system. The impression that some States apply double standards may have resulted in a lack of a forceful UN General Assembly reaction to Russia’s attempt to annex Crimea. The long paralysis of the Security Council in the face of the armed conflict in Syria and in disregard of the Responsibility to Protect questions the legitimacy of the Charter system and, in particular, the right to veto of the P5 once more. Even outside the Charter rules, prohibitions under customary international law have been weakened. State practice in relation to Libya and Syria suggests that States deviate from established obligations in relation to the prohibition of the use of force, in particular in view of the delivery of arms to Libyan and Syrian rebels. The Paris terror attacks 2015 have perhaps again decisively raised the question whether the state-centred ius ad bellum is fit to deal with challenges arising from violent non-state actors. In addition, certain structural developments, such as the cyber-space or the difficulty to characterize attacks and to attribute them to States may have led to a more fundamental challenge for those rules. More importantly even, the 2003 invasion of Iraq might not merely represent a particularly grave case of breaking the rules, but the beginning of a generally more liberal, or rather resigned, attitude towards the prohibition on the use of force and its exceptions. Recent debates among international lawyers about the legality of the different interventions in the civil wars in Iraq and Syria have apparently received lesser attention in State practice or in the general public than the interventions in Kosovo in 1999 or in Iraq in 2003.

A second indication concerns a loss in the confidence to conclude legal agreements. There are at least some ambiguous developments which suggest such a significant challenge to the idea that international law is at all a necessary or useful framework for international relations. A relevant example concerns the “stagnation of international law” (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763) according to which States apparently prefer informal forms of cooperation over the conclusion of formal treaties. In the field of climate protection, for instance, such a tendency could entail significant advantages, inter alia, in terms of the possibility of involving non-State actors, or of increasing the willingness to agree on some substantive commitments. However, in other areas of international law not concluding a legally binding agreement might represent a more fundamental challenge indicating a decrease of legal accountability by opening avenues for States to reinforce their discretion and augment their flexibility in the international order. For instance, after the 2011 International Conference of the Red Cross and the Red Crescent the ICRC together with Switzerland promoted a process to strengthen compliance with international humanitarian law and another process to strengthen international humanitarian law protecting persons deprived of their liberty. Both processes were apparently not turned into drafts for a binding international agreement since one could assume that a negotiating process would fail because substantial standards could not have been agreed upon under a binding treaty. But even the turn to informal standard-setting did not save the process from failing. In view of a strong opposition from certain States the adopted resolutions represented a comprise that remained far behind the expectations. It was neither possible to introduce a meaningful compliance mechanism nor to achieve the ICRC’s aim to converge the standards for detention in international and non-international armed conflicts. Instead the resolutions focus on a state-driven process and seem to sideline the ICRC (See Resolutions 1 and 2 of the 32nd ICRC Conference).

These are just some indications which suggest that we might currently observe significant structural changes in the way law is operating as framework for international relations. Suffice it to mention that other elements of the international rule of law which the article identifies are confronted with comparable challenges. In this light, Robert McCorquodale has made an important contribution to identifying the functions, objectives, and the intrinsic value of such a concept. He has developed a definition which offers a standard for assessing the current state and future direction of the international rule of law in a changing global order. At the same time, Simon Chesterman’s post suggests that some of these challenges might themselves have a impact on how to conceptualize a definition when it comes to “thick” standards, such as the inclusion of access to justice for human rights. Defining, conceptualizing and applying the international rule of law is a mutually dependant ongoing effort.