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Guest Post: Five Questions on the Colombian Sentencing Practice and the Principle of Complementarity under the Rome Statue

by Marina Aksenova

[Marina Aksenova is a post-doc in the Centre for Excellence for International Courts, Faculty of Law, University of Copenhagen.]

The ICC prosecution team has been conducting preliminary examinations in Colombia for over ten years and has yet to decide whether to move to the stage of formal investigations. In doing so, it must assess, among other things, whether reduced or suspended sentences rendered to senior perpetrators by the local judiciary are adequate in light of the gravity of the crimes committed during the continuing civil war. The ICC prosecution noted in its 2012 report on Colombia that some paramilitaries may benefit from the sentences of 5 to 8 years imprisonment if convicted of genocide, crimes against humanity, war crimes provided they demobilize. The matter is further complicated by the ICC’s capacity to frustrate the ongoing peace negotiations between the government and the FARC guerrillas. These talks aim at ending a conflict disrupting the country for over fifty years.

The issue of sentencing in Colombia illustrates the difficulties the Court faces in applying the principle of complementarity in practice. What are the exact criteria of assessing the state’s willingness to undertake genuine prosecutions? The ICC will evaluate domestic penalties with the reference to two different legal regimes provided by the Rome Statute – admissibility and sentencing. Up until now, the Court has not treated these two issues in conjunction with each other. The post discusses five specific concerns that this exercise may produce. This working paper elaborates on the context surrounding the questions presented below.

  1. Proportionality of sentences

The idea that a penalty must be in proportion to the gravity of the crime is widely accepted in international criminal law. In the Lubanga sentencing decision (para. 36), the ICC held that the ‘gravity of the crime’ is one of the principal factors to be considered in the determination of sentence, which should be in proportion to the offence and reflect the culpability of the convicted person. How will this consideration play out in the complementarity analysis? Will a sentence of 5 to 8 years of imprisonment for crimes against humanity and war crimes be considered grossly disproportionate?

The principle of complementarity presupposes the primacy of states in handling cases domestically. Thus, according to Article 17 of the Rome Statute, a case comes within the purview of the Court only if the crimes are of sufficient gravity and the country in question is unable or unwilling to address them via its national criminal justice system. Article 17(2) specifies that the state is ‘unwilling’ if it initiates the proceedings with an unjustified delay or with the purpose of shielding the person concerned from criminal responsibility or fails to conduct the proceedings independently or impartially – all of which signals lack of intent to bring the person concerned to justice. It is important that the offences allegedly prosecuted and investigated on a national level cover substantially the same conduct as those charged by the ICC, while legal characterization of the underlying incidents matters less.

Consequently, even if domestic prosecutions cover the ‘same conduct’ but result in disproportionately light penalties, this may evidence the state’s intent to shield some persons from responsibility, and, thus, render the case admissible to the ICC. There are three caveats to this argument. First, the ICC’s own sentencing practice so far has been rather lenient: Thomas Lubanga received a sentence of 14 years of imprisonment and Germain Katanga received a sentence of 12 years. The Lubanga analysis of proportionality suggests that no rigid guidelines are available for measuring the correlation between the gravity of the offence and the sentence. The Chamber in its sentencing decision (paras. 92-93) rejected the strict numerical approach suggested by the OTP and upheld its own discretion to assess the totality of factors when deciding on the ultimate number of years of imprisonment. The deficiencies in Mr. Lunbanga’s mens rea and his cooperation with the Court played an important role in the determination of his sentence.

Secondly, in the Al Senussi admissibility decision (paras. 218-219), the ICC dealt with the reverse situation  – the Defence argued that the threat of a death penalty, which the accused faced in Libya, rendered the case admissible because of the adverse effect on the accused. The ICC rejected this plea and granted local authorities a wide margin of appreciation when it comes to punishment, claiming it is not a human rights court. One might expect similar flexibility in cases on the other side of the spectrum.

Finally, Article 53(1)(c) of the Rome Statute allows some room for a manoeuvre granting the prosecution the power not to commence an investigation even where the situation is formally admissible if it serves the ‘interests of justice’. The ‘interests of justice’ is a broad category open to various interpretations, but ultimately it leaves the door open for a political compromise. The fragility of the Colombian peace talks is likely to fall within this category because arguably it provides for a valid reason not to proceed to the official investigations by the ICC.

  1. Participation of the convicted persons in political life

Participation of convicted persons in political life is a burning issue in the peace talks in Colombia. Many senior perpetrators have links to the government or the FARC and hope to remain in power after a deal has been reached. Even if certain leaders from both sides receive formal punishment, the question still remains whether these people will be allowed to form part of a future government. Is it possible to conceive of suspended or lenient sentences as sufficiently reflecting public censure if the convicted person re-enters politics? Can such punishment deter future violations by senior perpetrators?

The Rome Statute does not give any guidance as to whether convicted persons may participate in political life; it restricts the types of punishment to a maximum sentence of 30 years of imprisonment, fine and forfeiture of assets. If one looks at the broader picture, Article 27 renders the official capacity as is generally irrelevant to the ICC prosecutions. This provision is not directly relevant to sentencing, but it reflects the spirit of the Rome Statute. One might argue that for this reason alone the ICC may criticize participation of the convicted person’s in political life.

In its complementarity analysis, the ICC may also refer to the general sentencing practice of the respective state. The Colombian Criminal Code appears rather flexible in this regard; it leaves it up to the judges to decide whether to ban the offender from political life. The law provides for the suspension of rights and public functions as well as the loss of public office as an additional punishment for various offences, such as, murder of certain persons. Loss of public office can last up to 5 years, while suspension of other rights can vary from 5 to 20 years. In certain circumstances, rights can be restored at an earlier date (Articles 43(1), 43(2), 92, 135 of the Colombian Criminal Code).

The ICC is unlikely to be guided solely by the provisions of Colombian law, however. Instead, it is may look at the standards applicable in other states in an attempt to discern generally recognized principles of law deriving from the multitude of domestic legal systems. This is one of the sources of international law along with treaty and custom. It seems that in some jurisdictions there is a blanket prohibition to occupy public posts for those convicted of serious offences. For example, Article 45 of the German Criminal Code reads as follows: ‘Whoever is sentenced for a serious criminal offense to imprisonment for at least one year shall lose for a period of five years the capacity to hold public office and attain public electoral rights.’ This provision reflects an understanding that the public censure element of punishment is severely compromised if someone convicted of a grave offence is allowed to re-enter public life.

  1. Relevance of domestic law for the ICC complementarity analysis

The Rome Statute does not suggest that the ICC should consider the scale of penalties of the relevant state. Its determination of sentences shall solely be guided by the gravity of the crime, individual circumstances of the accused, and mitigating and aggravating factors. It is in contrast to the statutes of the ad hoc tribunals, which allow recourse to domestic law; although, it has rarely been seen in practice.

The ICC will assess Colombian criminal law in its complementarity analysis in the light of the principles enshrined in the Rome Statute and international law. The general principle is that the person cannot invoke domestic law to avoid responsibility under international criminal law. When it comes to the admissibility test, it is essential that the penalty imposed at the national level is not intended to shield the person from criminal responsibility.

  1. Disparity of sentences

The sentencing practice of the Colombian courts shows some disparity in sentences meted out to various parties to the conflict. Colombia attempts to bring to justice different responsible actors, but their penalties are significantly different. How will this aspect play out in the complementarity analysis of the ICC? The question of disparate sentences is tightly linked with the idea of individualized punishments and judicial discretion widely accepted at the ICC. There are a number of factors that might support Colombia’s claim for lenient (and, to a lesser extent, suspended) and/or disparate sentences.

Firstly, it seems that the ICC prosecution already pointed to broad discretion of the Colombian judiciary in its 2012 report (para. 206), when it confirmed that the ICC would examine local sentences individually on the basis of particular factors, such as, the intent to bring perpetrators to justice, the gravity of the crimes and the efforts to establish the truth. Secondly, the ICC practice itself shows relative leniency in its two available sentencing rulings. Thirdly, the reasoning in the Katanga sentencing decision (para. 38) exhibits a trend of integrating reconciliatory aims in sentencing considerations. Fourthly, the Rome Statute upholds the power of the prosecution to halt investigations if it is not in the ‘interests of justice’ in light of the gravity of the crimes and the interests of victims.

  1. Remedy to the victims

When combining two legal frameworks for the purposes of complementarity analysis, the ICC might have to decide where it stands on the issue of enforcement of human rights and victims’ rights. In the recent complementarity decision in the Al Senussi case (paras. 218-219), the ICC refused to act as a human rights court and rendered the case inadmissible, notwithstanding the death penalty threatening the accused. The Court’s view might be altered when victims’ rights are at stake, as is the case in Colombia. Both the Colombian national legislation and the Rome Statute contain provisions upholding victims’ rights in the process of criminal adjudication. Reduced sentences for war crimes and crimes against humanity may be at odds with the victims’ quest for justice. One way to resolve this contradiction is to ensure that victims receive adequate reparations for their suffering. It will not ‘offset’ the perceived impunity of senior perpetrators entirely, but it will help in mitigating the concern.

Guest Post: How Many International Law Books are Published in a Year?

by John Louth

[John Louth is Editor-in-Chief of Academic Law at Oxford University Press.]

I make it 401, but more of that below.

A few years ago when we carried out some research into law scholars’ habits we found many were telling us that there was so much being published that they didn’t even try to keep up anymore. I decided to try and see how difficult it would be to get a snapshot of just the books that published in one 12 month period – April 2014 to March 2015. The dates reflect two important cycles in my life: it matches OUP’s financial year and it marks the time between annual meetings of the American Society of International Law, the largest annual gathering of international lawyers (in the English speaking world at least).

The starting point for collecting titles was Jacob Katz Cogan’s invaluable International Law Reporter blog but due to the slightly different criteria for inclusion that I was applying I also went through publishers’ websites systematically. The result was 401 books published in English, French, and German.  No judgements about the quality of the scholarship were made – if it published in print, it was included. The full list in spreadsheet form and an explanation of the criteria for inclusion are available here. There is naturally a lot of room for debate about what I deemed to be “international” and what I deemed to be “law”. For each title I recorded the author/editor, language of publication, the publisher, and the subject area.

Statistical Overview

The top four publishers by number of titles were

  1. 1. CUP (72)

  2. 2. OUP (69)

  3. 3. Brill-Nijhoff (56)

  4. 4. Routledge (44).

Further behind we then have

  1. 5. Nomos (25)

  2. 6. Springer (24, or 27 if you include the 3 Asser Press titles they distribute)

  3. 7. Edward Elgar (20)

  4. 8. Pedone (19)

  5. 9. Hart (18)

  6. 10. Bruylant (11) and then a number of presses with between one and four titles in the list.

The linguistic split is 340 English, 36 French, 19 German, 5 French and English, and 1 German and English. The ratio of authored to edited books was 246 to 155.

Every title was assigned either one or two broad subject areas that it covered. The total figure for numbers of titles by subject therefore is greater than 401. Economic law broadly speaking (encompassing those titles on international economic law generally, plus those specifically on trade or investment law) accounts for the largest number (67), then human rights (53) and then war/peace/use of force issues (51).

The two institutions that had the most attention were the UN Security Council and the International Criminal Court which were the subject of 7 books each. Breaking the coverage down geographically there were more books about China (8) than anywhere else, followed by the Polar regions (6).

“Hot” Topics?

There were

  • 13 titles addressing issues of transitional or post-conflict justice
  • 7 each on terrorism and cyber issues
  • 6 each on corruption and economic/social/cultural rights, and
  • 5 on climate change.

Book publishing obviously lags behind current events which might explain why there are still quite a few books on piracy (4) in the list but not yet anything specifically on Syria or ISIS. In terms of genres the big one is clearly the “Handbook” with 13 in the list spread between Routledge, Elgar, and OUP, but the second is the evergreen Festschrift with 12 having published in this period. Special mention should be made of a liber amicorum for Serge Sur published by Pedone which is not on the list as it appears to have only been available as a subscription item and doesn’t seem to be available any more. That is a great shame as it concludes with a chapter about the glories of hard-boiled eggs with mayonnaise, for many years an inexplicable lacuna in international legal scholarship.

Why Do Such a Survey?

I did this to step back from my role as an OUP editor and see what is going on outside of my list but also to assess what kind of a burden is being placed on those who are trying to stay abreast of scholarship in their field. For scholars and librarians I hope that it is simply useful to see a reasonably comprehensive list and make sure you haven’t missed anything. Beyond that though it is probably helfpul to reflect on the quantity of output, the languages, and the subject areas/topics that are being published on. What areas are over-saturated and which are in need of greater coverage? Is it a concern that such a high proportion of the single-authored books are based on doctorates or is that a healthy sign of new thinkers entering the field?

If there is interest we could try to make this an annual survey, hopefully including publications from more than the three languages covered (helpers would be needed though as my language skills are limited to English, French, and German).

To get a fuller picture we need to look at journals and the many hybrid forms of scholarly output (such as working papers or reports produced for international organizations) but that will take some more time due to the vastly greater quantity of material to be sifted through.  For now I hope that this inaugural survey is food for thought.

Book Symposium: Accounting for Difference in Treaty Interpretation over Time

by Julian Arato

[Julian Arato is an Associate-in-Law at Columbia Law School.]

Interpretation in International Law is something of an iconoclastic volume, from its critical ethos to its provocative structure around the metaphor of the game. The object of its revisionism, above all, is an apparently stagnant formalism that seems too prevalent in the theory and practice of interpretation in international law today. Symbolic of this antiquated formalism – for the editors and for many of the contributors – are the rules of interpretation embedded in the Vienna Convention on the Law of Treaties (VCLT). There is something funny about defending the rules in such a collection – like arguing for reform in a volume on revolution.

My chapter, ‘Accounting for Difference in Treaty Interpretation over Time’, embraces the Vienna rules in principle. I reject neither rules nor formality, and I happily hew toward the VCLT’s project of bringing order to the practice of interpretation. In my view, there is real value in the regulatory ideal that a “correct” interpretation of any treaty exists. The Vienna rules reflect a crucial language for approaching that ideal. The rules don’t simply provide access to the correct interpretation – they help constitute it. And, crucially, they do so according to a scheme accepted by states, the plenary subjects of international law.

Still, in an important sense I agree with the volume’s critical spirit. In my view the real problem lies not with the Vienna rules themselves, but with a reverence for them that sometimes borders on the fetishistic. It’s not the rules, in other words, but the way they tend to be received. The misstep lies in the notion that the Vienna rules comprise a fully self-contained approach to treaty interpretation – universally applicable to all treaties, and always in the same way. This article of faith is neither borne out in practice nor in theory, and nowhere is this more evident than in the interpretation of treaties over time.

All students of public international law are at some point taught that as a matter of doctrine all treaties are subject to the same unified rules of interpretation. Yet at the same time, everyone knows that some treaties are special. Time and again we hear that some kinds of treaties are different. Courts, tribunals, and scholars often intone that certain treaties are entitled to special treatment when it comes to interpretation, especially as regards changes of circumstances and intentions attending the passage of time.

Often the argument is that human rights treaties are somehow special – capable of progressive evolution over time, with or without the continued consent of the parties. By the same token, it is sometimes suggested that subsequent party practice, usually an authentic criterion for the interpretation, reinterpretation, or even the modification of treaties, is somehow of less value in the context of interpreting treaties that confer rights on natural persons. The argument is that in such cases the mastery of the parties over time is somehow reduced. We hear similar statements about environmental treaties, territorial treaties, and of course the constituent instruments of international organizations. The problem is that the explanations offered for differentiating among types of treaties are rarely satisfactory.

The argument that a particular treaty provision is entitled to special treatment tends to be explained in one of two ways, both of which prove ultimately unsatisfying. One approach simply invokes the general subject matter of certain treaties in singling them out for special treatment. In light of their special subject matter, the argument goes, treaties on subjects like human rights or the environment should be understood as insulated from the changing will of the parties, and sometimes capable of autonomous evolution. But such statements cannot withstand serious criticism. In the words of the ILC’s Fragmentation Report (at [21]): “characterizations (‘trade law’, ‘environmental law’) have no normative value per se … The characteristics have less to do with the ‘nature’ of the treaty than the interests from which it is described.”

A second school of thought tries to work within the Vienna rules – focusing especially on one criterion of interpretation, object and purpose, in accounting for ascribing differential weight to the other codified rules. On this view, the touchstone must always be the intention of the states parties, as reflected in the goals that the treaty seeks to achieve. Adherents of the object and purpose approach have the advantage of formality. Its proponents can argue that the answers lie within the rules after all, in the invocation of object and purpose at VCLT Article 31(1). And yet something important still seems to be missing. Even where a treaty’s goals are sufficiently determinate, the interpreter must still ask how far the parties were willing to go to achieve their goals. Though a treaty may enshrine certain values, it remains critical to ask to what extent the states parties intended to entrench those values – to what extent, in other words, they agreed to tie themselves to the mast.

My suggestion is that international lawyers’ tendency to focus doggedly on the canons of interpretation codified in the VCLT draws attention away from a crucial consideration in the interpretive puzzle: the nature of the treaty obligations under interpretation. What gets left out is any inquiry into how far the states parties intended to commit themselves in acceding to a treaty obligation.

Put more schematically, the critical issue elided by the Vienna rules is whether a treaty provision entails a merely reciprocal exchange of rights and duties, or rather incorporates a more absolute commitment by the parties to take on an obligation insulated from their changing intentions, and over which their subsequent mastery might prove relatively limited. Some treaty norms represent mere exchanges of rights and duties, wholly dependent on mutual performance. If one party breaches its obligations, the other is well within its rights to do the same. Other norms represent a shared commitment to abstain from, or engage in, a certain behavior – whatever the other parties do. It is well understood that differences in the level of party commitment are relevant to determining the consequences of treaty breach, or to resolving conflicts with subsequent treaties. And indeed, as Pauwelyn has noted, the VCLT itself recognizes the importance of drawing distinctions between different types of treaty norms for these non-interpretive purposes. I argue that this distinction is just as central to the resolution of problems of interpretation over time.

Starting from the perspective that the Vienna rules are essential, I suggest that the problem of differential interpretation over time reveals a deficiency in how we think about VCLT Articles 31–32. Specifically we ought to avoid treating it as a total interpretive mechanism. The problem lies not in our interpretive rules as such, but in the assumption that any set of rules can do all the work. Without arguing for anything like revising or abandoning the VCLT, I suggest that the process of interpretation may sometimes require taking into account considerations left unmentioned by Articles 31–32. Distinguishing between types of obligations based on the level of the parties’ commitment is a case in point. Doing so helps account for quite a bit of interpretive practice that would otherwise appear anomalous under the Vienna rules; hopefully it can provide a more principled justification for differential interpretation going forward.

NYU Petitioners Do Harold Koh — and Themselves — a Grave Disservice

by Kevin Jon Heller

Newsweek published a long article today about a petition organized by NYU students, alumni, and non-law faculty claiming that it would be “unacceptable” for Harold Koh to teach international human-rights law at the law school. Here is a snippet:

While working for the Obama administration, Koh was the most public legal defender of the president’s drone strike program. Last month, a petition was circulated at NYU Law—one of the top law schools in the country—that called Koh’s teaching of international human rights law for the 2014-1015 academic year “unacceptable.”

“Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable,” the petition reads.

The petition has drawn around 200 signatures, but it has stirred a much bigger controversy on campus than the numbers might suggest.

I do not think scholars should get a free pass for their ideas simply because they were government officials when they embraced them. I continue to believe that it’s a terrible idea for serious scholars to go into government — this kerfuffle being Exhibit A. And I have very serious disagreements with Koh about the legality of the Obama administration’s drone program; indeed, I’ve discussed them with him.

That said, I find the petition appalling. Koh is one of the great international human-rights scholars of his generation — and he has personally taught or mentored most of the great international human-rights scholars of the current one. He is brilliant, compassionate, kind, and profoundly ethical. No one who knows him even a little (and although I know him, I can’t say I know him well) could possibly believe that he did not bring all of those qualities to his role as the State Department’s legal advisor. Does that mean he was always right? Of course not. As I said, I don’t share his view of the drone program. On the contrary, I think the program is abhorrent and quite often illegal. (And have said as much in my scholarship.)  But I would bet my last dollar that Koh never went against his beliefs while working at State — and that he did everything he could, within the confines of his position, to make the drone program comply with international law as he understood it.

Those of us on the left — and readers know just how far left I am — need to stop viewing US administrations as monoliths. Not all government officials are bad. Even terrible administrations have good people in them who work behind the scenes to minimise their terribleness. John Bellinger III falls into that category in the Bush administration; commenters on the blog have done him a disservice by lumping him together with people like John Yoo. And the NYU students, alumni, and faculty who have signed this petition have done Harold Koh an even worse disservice by accusing him — publicly — of being unfit to teach international human-rights law. On the contrary, NYU would be lucky to have him.

Scholars Debate Investment Arbitration Chapter in TPP and TTIP

by Roger Alford

Negotiations over the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) have highlighted the growing debate over investment arbitration. Last week the New York Times published an article summarizing objections to the TPP investment chapter. The article notes that politicians, law professors and liberal activists “have expressed fears the provisions would infringe on United States sovereignty and impinge on government regulation involving businesses in banking, tobacco, pharmaceuticals, and other sectors.”

The reference to academic opposition is based on a letter published by the Alliance for Justice with the signatories from numerous law professors. The one-page AFJ letter urges Congress to “protect the rule of law and our nation’s sovereignty by ensuring [investment arbitration] is not included.” Foreign corporations, the letter continues, can use investment arbitration to “challenge government policies, actions, or decisions that they allege reduce the value of their investments…. This practice threatens domestic sovereignty and weakens the rule of law by giving corporations special legal rights, allowing them to ignore domestic courts, and subjecting the United States to extrajudicial private arbitration.”

Today another group of prominent law professors who are experts in investment arbitration have written a lengthy response. The letter (to which I am a signatory) challenges the notion that signing an investment treaty constitutes a loss of sovereignty or undermines the rule of law. “Corporations cannot and will not gain victory simply by arguing reduced investment value.” Instead, a corporation must establish that “a host state has discriminated on the basis of nationality, has failed to accord a foreign investor due process, or has expropriated the property of a foreign investor without payment of prompt, adequate, and effective compensation.” The letter then addresses the contentious issue of regulatory takings, and highlights the limits of corporate claims challenging environmental, health, and safety regulations.

It concludes: “investment treaty arbitration does not undermine the rule of law…. The obligations commonly found in investment agreements—including non-discrimination on the basis of nationality; due process; expropriation of property only for a public purpose and on payment of prompt, adequate and effective compensation; and repatriation of profits—are the hallmarks of a society that is governed by law.”

Frankly, the rebuttal letter is substantive and faithful to the true state of investment arbitration, while the AFJ letter reads more like a piece of political advocacy than a memorandum by scholars offering legal analysis.

Of course, these battle lines are not new. The Multilateral Agreement on Investment was scuttled in the late 1990s because of similar concerns. In the meantime, over 3,000 bilateral and multilateral investment agreements have now been signed, with the United States a signatory to over 50 such agreements. NAFTA and CAFTA-DR are among the most prominent examples of such agreements.

What is new is the potential economic impact of the deals. The sheer size of TTP and TTIP significantly raises the stakes. The TPP countries collectively would represent the largest U.S. trading partner, accounting for 40% of total U.S. goods trade and 25% of total U.S. services trade. As for the TTIP, the combined share of the U.S.-EU GDP is approximately 45% of global GDP and reflects 17% of global foreign direct investment.

Any hope for a TTP or TTIP deal depends on Congress granting the Obama Administration trade promotion authority, which seems increasingly likely. Whether that authority includes investment arbitration remains to be seen. But the fact that the Obama Administration and the vast majority of Republicans in Congress strongly favor investment arbitration in both agreements bodes well for its inclusion.

Guest Post: Maldonado v. Holder and the US’ “Understanding” of Its Convention Against Torture Obligations

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

The 9th Circuit issued a revised Opinion on March 27th in Maldonado v. Holder, a case about non-refoulement (the obligation not to expel, return or extradite someone to a country where they would be in danger of being tortured) and deferral of removal under the UN Convention Against Torture. The En Banc panel said that the lower court erred in placing the burden on the petitioner to show that he could not relocate within Mexico in order to mitigate the risk that he would be subjected to torture. The Court also overruled several precedents that placed excessive burdens on petitioners seeking protection from torture abroad, saying they were incompatible with federal regulations designed to implement the non-refoulement obligation. This decision is a big deal in the realm of immigration law. Petitioner’s lawyer was quoted in the San Francisco Chronicle: “(The ruling) puts us in compliance with our international obligations and protects tortured people.”

Well, not exactly, counselor. It depends on what you mean by “obligations.”

The result is commendable, as far as it goes, but a US “understanding” upon ratification of the Convention Against Torture considers the non-refoulement obligation to be triggered only if torture is more likely than not. In other words, if the petitioner can only show a 49% chance that he will be tortured, he loses. The Convention is not nearly so demanding. It prohibits refoulement “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” (Emphasis added). The Convention certainly doesn’t require proof that torture, or even the danger of torture, is more likely than not.

The US “understanding” is actually a “reservation” that significantly varies from the text of the Convention. One might say it tends to defeat the object and purpose of the treaty, and thus, is unacceptable. If so, the US is still some distance from compliance with its international obligation to protect people from torture.

Book Symposium: The Rise of Interpretive Communities in Treaty Interpretation

by Michael Waibel

[Michael Waibel is a University Lecturer in Law at the University of Cambridge and Deputy Director of the Lauterpacht Centre for International Law.]

The rise of distinct interpretive communities goes hand in hand with the much debated topic of fragmentation in international law. Even though the VCLT’s role in treaty interpretation has been studied extensively, how interpretive communities affect treaty interpretation has received less attention. Who the treaty interpreters are and how they approach the task of interpretation likely matters for interpretive outcomes.

Compared to national law, interpreters of international law are much more diverse. They come from different cultural and educational backgrounds and have varied professional experiences. They include judges on international and national courts, government legal advisers, lawyers in private practice, scholars and activists. They are often part of several, overlapping interpretive communities who speak the same language and share the same background assumptions – and this membership may shape how they approach the task of treaty interpretation.

Consider national judges. They may be particularly prone to interpreting treaties through the lens of their own legal system and in light of their particular specialization such as tax or criminal law. As a rule, national judges form part of diverse national interpretative communities, shaped largely by their own legal culture (including approaches to interpretation), rather than part of a global and interconnected community of international lawyers who speak (roughly) the same language. Going forward, diversity in treaty interpretation by national judges could be a major source of interpretive fragmentation, depending on what role interpretive communities along national lines play.

But all lawyers are, to a considerable degree, a product of their own culture, training and professional experience. As Frederick Dunn remarked in the 1930s, the international lawyer ‘carries with him the whole collection of habitual ways of acting, of fixed ideas and value judgments of his own community, which he is prone to expand into ideas of universal validity’: The Diplomatic Protection of Americans in Mexico (1933) at 105–107. James Crawford similarly observed that international lawyers are ‘commonly municipal lawyers first, and bring to the international sphere a collection of presumptions and perceptions as part of our training’: Chance, Order, Change: The Course of International Law (2013) at para 185.

How does one become a member of these interpretive communities? It varies from area to area, and from one state to the next. As a rule, the harder it is to join an interpretive community, the more influential the interpretation of that group is. For example, while it typically takes several decades of experience to join the interpretive community of international judges (particularly the ICJ), it is easier to join the interpretive community of human rights activists.

Unlike interpretation in literature, how much weight an interpretive community and its members carry is not just a matter of prestige, but has consequences. While more accessible interpretive communities mostly lack any binding authority, the interpretive community of, for example, ICJ judges or WTO Appellate Body members has the power to issue binding decisions. Others, such as government legal advisers have no power to issue such decisions, but are extremely influential in treaty interpretation because the bulk of interpretation in international law remains auto-interpretation – by the states concerned of their own interpretation.

Besides the diversity of the actors, the growing trend towards specialization in international law (mirroring a development in national law a century ago), accompanied by the “tunnel vision” symptom, fostered the emergence of distinct interpretive communities. Such tunnel vision, focusing on the unique goals of each specialization, can lead to the chopping of international law into discrete “blocks”. Consequently, generalist international lawyer idealized in Schachter’s famous “Invisible College of International Lawyers” are an endangered species.

Today, there are interpretive communities of human rights lawyers, investment lawyers and environmental lawyers for example. One manifestation of this centrifugal trend are more specialized professional societies, such as the Society of International Economic Law, which complement more generalist societies, such as the American Society of International Law. Such bodies have played a crucial role in fostering a sense of a broad, unified interpretive community of international lawyers in the 20th century.

An important implication of this tunnel vision is that specialist interpretive communities tend to regard their own area of expertise as supreme and pay little, or no, attention to other unrelated areas of international law: Bianchi, “Gazing at the Crystal Ball (again): State Immunity and Jus Cogens Beyond Germany v Italy” (2013), 4(3) JIDS 457. Interpretive communities pursue various strategies in order to enhance their prestige and influence: 1) some of the influential ones screen new members before admission, as mentioned above; 2) they cooperate with other actors to spread their views and increase support for their interpretation (e.g. with governments and practicing lawyers); and 3) they advance competing normative visions of international law while at the same time employing the VCLT’s widely accepted, open-ended principles of interpretation.

The rise of a larger number of distinct interpretive communities resulted in international law being “sliced up in institutional projects that cater for special audiences with special interests and special ethos”: Koskenniemi, “The Politics of International Law – 20 Years On” (2009) 20 EJIL 1, at 9. As Bianchi observed, interpretive communities can be seen both as a deadly threat to the international legal order, but also as a sign of the sophistication and expansion of the realm of international law: “Looking Ahead: International Law’s Main Challenges” in D Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) at 404.

Schachter’s “invisible college” of international lawyers seems to have largely disappeared and has been replaced by a patchwork quilt of specialized international lawyers. Diverse interpretive communities have come to play an increasingly important role in treaty interpretation. This development raises concerns about the unity of international law, not just in relation to its interpretive methods, but also in relation the system as a whole. The challenge going forward is how to achieve a reasonable balance between specialization and fragmentation.

Book Symposium: Is there Existential Interpretation in International Law?

by Duncan Hollis

I want to start off our conversation about the larger project Bianchi, Peat and Windsor have undertaken with their new book before introducing my own contribution to it.  For years, the concept of interpretation has had a fairly narrow focus within the international legal landscape.  It has almost uniformly been associated with a discrete set of objects — treaties. From Grotius to Oppenheim, let alone McNair to Gardiner, when international lawyers have thought about interpretation, there has been a strong push to do so almost entirely with respect to treaty instruments.  Moreover, for several decades now the vehicle for interpretation has been widely accepted in the rules of the 1969 Vienna Convention on the Law of Treaties.  Although there was a time when the issue of how to interpret treaties garnered a really diverse range of views, modern discourse has largely devolved into claiming that the VCLT approach gives priority to (or at least endorses inclusion of) different methods of interpretation (e.g., intentional, textual, teleological). Now, to be clear, these are tremendously important issues given the role of treaties in international law today; scholarship on these topics has been, and remains, an important part of international legal discourse.  Nevertheless, what I like about the Bianchi, Peat and Windsor book (putting aside my own contribution) is the editors’ willingness to deal with the traditional games of treaty interpretation while also expanding the discourse to frame interpretation as a much larger project within the international legal order.  It is an important move, and one I hope to see continued in future scholarship as international lawyers begin to recognize all the ways interpretation operates within every nook and cranny of the field.

As for my own chapter (which is still up on SSRN, although you should really buy the book), its inspiration lay in one other aspect of the conventional approach to interpretation — defining interpretation simply as a process of giving meaning to treaty texts.  I’ve always thought that this approach under-claimed the functions interpretation can serve.  Certainly, interpretation has an expository function where its processes help interpreters ascertain what meaning to assign some treaty provision or other aspect of international law.  But, interpretation can have other functions as well.  For example, although still controversial in some circles, there is the idea that interpretation has an inventive or creative function where instead of simply “finding” meaning, interpreters craft one for the circumstances presented.  Alternatively, interpretation may serve a relational role in delimiting not what specific things mean, but how they relate to one another (i.e. whether one treaty provision supersedes another, whether some international humanitarian law rule takes priority over a human right guarantee, etc.).

My contribution to this functional analysis is to highlight the existential potential of interpretation.  My chapter explores how, in ascertaining meaning, interpretation operates to confirm—or even establish—the existence of the subject interpreted within (or outside) the corpus of international law.  I argue that all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects.  Interpreters can foreground or background existential interpretations depending on whether the existence of the subject-matter is accepted or disputed. Moreover, I find existential interpretations are not limited to the treaty-context.  Rather, they are visible at all levels of international legal discourse, including which particular (i) authorities, (ii) evidence, (iii) rules, or (iv) sources exist for purposes of international law.

Some of these existential interpretations are quite prominent and should actually be familiar to most international lawyers even if not previously couched in such terms.  Does the U.N. Human Rights Committee have authority to sever reservations as inconsistent with the object and purpose of the ICCPR?  For purposes of identifying customary international law, is evidence of “State practice” only comprised of what States “do” or can it also count what States “say”?   Is there an “unwilling or unable” test in the jus ad bellum in response to non-State actor attacks?  Is R2P now a part of international law?  Is the new Iran Deal a treaty or not? Are decisions of international organizations a separate source of international law?   These are all examples of existential interpretative inquiries.

My chapter seeks to illuminate the existential function of interpretation and illustrate such interpretations in all the various aspects of the international legal system.  But my paper is not simply an exercise in interpretative taxonomy — identifying different frames for interpretative questions.  Rather, I seek to illuminate the consequences that the presence or absence of an existential interpretation may have in terms of international legal (a) discourse, (b) doctrine, and (c) theories of international law.  For starters, existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

I conclude my paper by calling for further study of existential interpretation for practical and theoretical reasons.  As a practical matter, it would be useful to know more about when and how actors actually foreground existential interpretations.  Obviously, there may be cases where an interpreter does so in good faith, but I suspect existential interpretations might also be deployed instrumentally.  Consider the possibilities when a State (or other actor) objects to an interpreter X claiming that Rule Y means Z.  Of course, the State might simply disagree that Z is the correct meaning of Rule Y. But a State could expand the scope of the interpretative dispute by also questioning whether X has authority to interpret, the evidence on which Rule Y rests as well as the source of international law it is derived from. The objecting State may thus complicate the dispute by expanding its scope.  In doing so, moreover, the objecting State may change the nature of the dispute itself, shifting a discussion away from the initial question (e.g., protecting victims of a humanitarian crisis) to issues of authority or procedure (does international law contain a rule requiring such protection and who has authority to invoke its mantel).

As a theoretical matter, existential interpretations can serve as a new lens for mapping the unity and fragmentation of the international legal order itself. Instead of examining fragmentation along a single axis (eg norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes.  Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords.  In each area, the number and depth of existential debates offer a rough gauge for mapping unity versus fragmentation.  Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed.  Conversely, where there are existential disputes, they indicate a fragmentation of the legal system.

In sum, as much as I love treaties, I believe that there is significant value in thinking about interpretation as more than a process of giving treaty provisions meaning.  My introduction of the concept of existential interpretation is an effort to show just how broadly interpretative processes reach and structure the international legal order.  In doing so, I hope to illustrate — as the book itself does — the importance of thinking about interpretation as its own field within international law.

[An introductory post to the book symposium can be found here.]

Book Symposium: Interpretation in International Law–What’s In A Game?

by Daniel Peat and Matthew Windsor

[Daniel Peat and Matthew Windsor are PhD candidates at the University of Cambridge Faculty of Law, and members of Gonville and Caius College.]

International lawyers have long realised the importance of interpretation to their academic discipline and professional practice. Interpretation in international law has traditionally been understood as a process of assigning meaning to texts with the objective of establishing rights and obligations. This has led to an almost exclusive focus on the interpretive methodology encapsulated in the Vienna Convention on the Law of Treaties. Outside the auspices of the VCLT rules, interpretation in international law has rarely been regarded as a distinct (and broader) field of inquiry. As new insights on interpretation have abounded in other fields, international law and international lawyers have continually granted an imprimatur to rule-based formalism. Given that interpretation is a pervasive phenomenon in international law that is irreducible to analysis of the VCLT rules, a greater methodological awareness of interpretive theory and practice in international law is imperative.

We convened a conference on interpretation in international law at the Lauterpacht Centre and the Faculty of Law at the University of Cambridge in 2013. The aim was to provoke fresh insights on a foundational topic. The result is a recently published book with Oxford University Press, Interpretation in International Law. The book is co-edited by Andrea Bianchi, Professor of International Law at the Graduate Institute, Geneva. A symposium of papers dealing with discrete interpretive topics from the conference also featured in the Cambridge Journal of International and Comparative Law.

In his preface, James Crawford describes our book as ‘teeter[ing] intriguingly between interpretation in the way international lawyers normally think about it and interpretation as everything they think about’. International lawyers normally think about interpretation with reference to the rules in the VCLT. Indeed, the literature on treaty interpretation is voluminous. This work is invaluable: it provides states and other actors in the international arena with a guide to the conventionally accepted norms of interpretation in the community within which they operate. But this project does not tell the whole story. It does not interrogate the larger purpose of interpretation in the international legal system, whether and why the VCLT rules act as a constraint on interpretation in practice, whether actors’ interpretations differ according to their professional identities, or if strategy motivates interpretive choice. In their mantra-like recital of the VCLT as a formal methodology for the interpretation of international legal rules, international lawyers till a bounded field, largely insulated from interdisciplinary influence or insight. A greater awareness of broader interpretive debates helps shed light on both the underlying premises and shortcomings of the rule-based orthodoxy. In short, interpretation in international law is not an island.

Our introductory chapter to Interpretation in International Law, which is freely available here, surveys the ‘state of play’ of scholarship on interpretation in international law, before analysing alternative approaches to the ascertainment of meaning. Such approaches reveal that any interpretive inquiry rests upon contestable bases regarding meaning, language and the importance of societal context and norms. The view that the interpretive inquiry in international law is reducible to, and exhausted by, the VCLT rules is overly reductionist.

The book is structured around the metaphor of the game, which captures and illuminates the constituent elements of an act of interpretation. The object of the game of interpretation is to persuade the audience that one’s interpretation of the law is correct. There are players who are engaged in the game, namely functionally specialised interpretive communities who deploy international law as a professional vocabulary. The VCLT rules of play are known and complied with by the players, even though much is left to their strategies. There is also a meta-discourse about the game of interpretation – ‘playing the game of game-playing’ – which involves consideration of the nature of the game, its underlying stakes, and who gets to decide by what rules one should play.

The game metaphor is more than a rhetorical flourish. It offers a heuristic framework that highlights topics of crucial importance in order to foster innovative thinking on interpretation in international law. The argument is not that interpretation is a game, but that particular facets of the comparison are illuminating and capable of capturing both routine interpretive operations as well as those advances that transform the law. To say that interpretation in international law is akin to playing a game does not imply that the process is frivolous or that the parties involved in interpretation are not seriously engaged in it. Rather, in its attention to interpretation as a complex social practice, and in its focus on socio-historical contingency and the relationship between freedom and constraint, the game metaphor helps reinsert some vitality in a discipline that has too often become bogged down in formalist interpretive technique.

Interpretation in International Law breaks free from a myopic focus on the VCLT to reveal interpretation as a phenomenon that permeates all areas of international law as a discipline and professional practice. We hope to convince readers that the game metaphor crystallises a set of concerns that are too often neglected in a formalist rule-based paradigm. Topics canvassed in the book are deliberately eclectic, ranging from theories of rhetoric and argumentation to the sociology of precedent, from cognitive frames of interpretation to the politics of hermeneutics.

Over the next few days, several of the book’s contributors will introduce their chapters. Duncan Hollis examines the object of the game of interpretation in terms of its existential function. Michael Waibel analyses the players of the game by discussing the nature of interpretive and epistemic communities in international law. Julian Arato confronts the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Fuad Zarbiyev characterises the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. Philip Allott’s contribution to the symposium is emblematic of the aims of the book: to promote critical and open-minded reflection on interpretive practices and processes in international law.

We are grateful to our contributors for their participation, and to Opinio Juris for hosting this discussion. We hope that the insights contained in Interpretation in International Law, and this symposium, will stimulate further research on interpretation that does not shy away from methodological innovation and creativity.

The Advantage for Palestine of a Slow Preliminary Examination

by Kevin Jon Heller

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…

Weekly News Wrap: Monday, April 6, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  • An Indonesian court will rule on Monday on an appeal against President Joko Widodo’s refusal of clemency for two Australian drug convicts who are facing execution by firing squad.
  • North Korea fired four short-range missiles off its west coast on Friday in what South Korea called a bid to stoke tension during its annual joint military drills with the United States and has declared a no-sail zone for its ships off its east coast, South Korean media reported on Monday, suggesting more missile launches are possible before the U.S. defense chief visits Seoul this week.
  • A Chinese naval frigate has evacuated 225 foreign citizens from strife-torn Yemen, its foreign ministry said, marking the first time that China’s military has helped other countries evacuate their people during an international crisis.

Europe

Americas

Oceania

UN/World

Events and Announcements: April 5, 2015

by Jessica Dorsey

Calls for Papers

  • Turgut Ozal University School of Law, in cooperation with Association for Canadian Studies and IDI, invites scholars and policy-makers to submit paper proposals to International Conference on International Law and Domestic Policies. The Conference will take place on 30-31 October 2015 in Ankara, Turkey. The aim of this International Conference is to evaluate the impact of international law and transnational law on the legal orders of nation states in different national contexts. The importance of international law in an increasingly globalized world is duly and frequently acknowledged. However, it is difficult to say that international law produces the desired impact across different national legal orders. In this context, the aim of the Conference is to provide opportunities to discuss the interplay between international law and domestic policies. Besides focusing on the impact of international treaty and customary law, theConference also welcomes submissions dealing with the effects on domestic policies of other sources of globalized norms, such as the emergence of global common law arising from pressures for regulatory commonality, different trade and investment regimes, international sanctions and others. Scholars, Policy-makers, lawyers, judges and professionals from all disciplines are invited to submit a proposal to the conference organizing committee. For more information, including information on deadline for proposals and accommodation opportunities, please refer to the website of the conference.
  • The American Branch of the International Law Association has extended the deadline until April 10, 2015 on their earlier-issued call for proposals. The unifying theme for ILW 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. ILW 2015 will explore the many roles that international law plays in addressing global challenges. The aim is to provide an opportunity for discussion and debate about the ways in which international law provides fundamental tools and mechanisms to address emerging global issues. ILW 2015 will offer engaging panels on current problems and innovative solutions in both public and private international law. The ILW Organizing Committee invites proposals to be submitted via the ILW Panel Proposal Submission Form located here.

Events

  • On April 8, 2015, the International Committee of the Red Cross and the Georgetown University Law Center’s Military Law Society are sponsoring a panel at the Law Center in Washington, D.C. to consider the question of whether and how the United States might ratify the 1977 Additional Protocol I to the Geneva Conventions of 1949. This panel, addressing the topic: “Is it Time to Ratify AP I?” will consist of four distinguished European and North American legal experts, including: Major-General Blaise Cathcart, Judge Advocate General of the Canadian Armed Forces; Nicolas Guillou, Justice Attaché of the French Embassy in the United States; Christopher Harland, Legal Advisor, International Committee of the Red Cross (ICRC) Regional Delegation for the United States and Canada and William K. Lietzau, former Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy. The panel will be moderated by Richard “Dick” Jackson, Adjunct Professor of Law, Georgetown University Law Center. The event will take place on April 8, 2015 from 6:30 – 8:00 p.m, at the Georgetown University Law Center’s Bernard P. McDonough Hall, Room 201, 600 New Jersey Ave., N.W., Washington, DC 20001. This is a short two blocks from the Hyatt Regency Capitol Hill Hotel, where the American Society of International Law is holding its Annual Meeting next week. The event is free and open to the public. A wine and cheese reception will follow the event.

Announcements

  • Transnational Dispute Management published a new special: TDM 2 (2015) Arbitration in the Middle East: Expectations and Challenges for the Future. Edited by Craig Shepherd and Mike McClure (Herbert Smith Freehills LLP) the papers in this special, which between them discuss the arbitral regimes in Bahrain, Egypt, Iran, Iraq, Jordan, Lebanon, Oman, Pakistan, Palestine, Qatar, Saudi Arabia, Syria, Tunisia, Turkey and the United Arab Emirates (UAE), together with investment treaty arbitration and general trends in the MENA (Middle East and North Africa) region, address the increasing use of arbitration in the Middle East, and the increasing use of Middle East seats.
  • University of Geneva Summer School in International Law will take place from June 15 – July 3, 2015 in Geneva. The University of Geneva is happy to invite applications for the Summer School in International Law. The Summer School in International Law, which is now in its third year, presents an excellent opportunity to learn from a wide range of expert international teaching staff in one of the world’s capitals of international law. The course is structured around three themes, one for each of the three weeks of the program: international economic law, international law and civil society, and international law and politics. Each theme is explored through a week-long “Foundations Course” and three to five “Snapshot Courses” on topics such as the creation of states, WTO law and neoliberalism, internet law, law without the state (transnational law), private international law, global governance, international commercial arbitration, controversial investment arbitration cases, the geopolitics of investment arbitration, the role of non-state actors in international institutions, the international law of intellectual property, and the resolution of international intellectual property disputes. Further information and application details are available online 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.