Recent Posts

More on Boehner’s Netanyahu Invite (and What It Says About Constitutional Change)

by Peter Spiro

My earlier post on whether John Boehner’s invitation to Benjamin Netanyahu seems to have triggered a little in-house conservative disagreement on the issue (or at least Weekly Standard’s Adam J. White is giving me credit for that). Mike Ramsey and David Bernstein come out against the invite’s constitutionality here and here; White argues in favor.

As I left off my first post, the question is appropriately raised but I think ultimately the Boehner move will go down as policy stupid but constitutionally legitimate. Appropriately raised because the invitation seems so patently at odds with a “one voice”/”sole organ” approach to foreign relations. Nice to have Mike Ramsey to confirm that the Founding generation wouldn’t have bought in (though Ryan Scoville dissents on the historical record here). But it would have provoked a huge controversy in the 20th century as well — see the much more informal interaction between Jim Wright and the Sandinistas during the Reagan years. Imagine if Wright had invited Sandinista leader Daniel Ortega to address Congress. I think a lot of folks would have deployed constitutional objections to that.

But just because it may have been unconstitutional then doesn’t mean it’s unconstitutional now.

The fact that it was left to a niche blogger to raise the constitutional question this time around pretty much proves the fact that this is now water under the constitutional bridge. There’s no way to put the lid on direct communication between members of Congress and foreign government officials. So much for “one voice.” One has to assume such communications are now dense. Making the jump from lots of behind-the-scenes contact to more formal actions like the Boehner invitation looks small. One might even argue that it is transparency enhancing. Better to play the institutional cards openly than hide them under the table. (Adam White highlights similar activity on the part of the courts, including the increasing amicus practice of foreign states. That practice would have raised a lot of eyebrows as recently as a couple of decades ago, especially on domestic issues; it’s now pretty routine.)

So the episode is a nice illustration of how changes in context can change constitutional understandings. Assuming the constitutional debate on the Boehner move remains restricted to a side conversation among constitutional scholars, it will supply a good precedent for similar moves on Congress’ part in the future. The practice then becomes constitutionally entrenched, accepted by all relevant actors. Any earlier understandings (including ones dating back to the founding) are overtaken by events. Th Constitution necessarily adapts to the world in which it has to operate.

Guest Post: On Cuban Normalization

by Larry Cata Backer

[Larry Catá Backer is W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs at Penn State Law.]

On December 17, 2014, the Presidents of the United States of America and of the Republic of Cuba announced an intention to move toward the normalization of relations between their countries. The two statements reflected the quite distinct conceptual frameworks from which they originated, and the aspirations and tastes of the elites whose approvals were a necessary predicate for such action. These frameworks can coexist unchanged only in the abstract, and are well reflected in the Presidential statements. Yet both views are so distorted by their own ideological self-references that each continues to evidence both the self-destructiveness and the irrelevance that has marked the policy of each against the other since the early 1960s.

Cuba remains fixated on the history ending moment of the triumph of its revolution of January 1, 1959, which marked not only the sweeping away of the old order, but also the installation of a new order that required no further improvement. The Revolution required defense and protection, not development or implementation. One can follow the rhetoric and policy of the Cuban Communist Party (CCP) since the 1960s as one long arc of efforts to maintain, protect and sustain a status quo set on that day that marked the moment of the triumph of the Revolution. This “freeze-time” conceptual baseline also characterized certain elements of the Cuban-American community for whom Cuba ceased to exist in time from the moment of the flight of the Batista regime. Cuba, politically at least, never moved from a revolutionary to a post-revolutionary society. Its state and party apparatus, unlike those of China and Vietnam, never transitioned from revolutionary to party in power. This Cuban policy of defensiveness is as much reflected in its state constitution as it is in the subtext of President Raul Castro’s speech announcing normalization. Its cultural, economic and social dimensions are deeply stamped onto Cuban society and governmental policy.

It is here that Cuba has been its own worst enemy. Its culture is tethered to January 1959 (and tourists seem to enjoy this museum experience even as younger generations of Cubans chafe at the institutional manipulations that force them to sterile reproduction especially for the benefit of tourists). Its economic model is tethered as well to the central planning system of Eastern European satellites of the 1970s. The CCP appears to have become no more than the caretakers of an ideological museum; its bureaucracy, still substantially loyal to Fidel Castro’s brand of European Stalinism, now has become a more potent enemy of Cuban reform than anything hurled at Cuba by the U.S. or by U.S. public intellectuals and politicians now arrayed against normalization. This is no idle supposition. The Cuban legal and administrative system appears to be moving toward rules based standards. But it is applied only through the exercise of discretionary authority. Every action requires application, review and permission. Substantial legal reform will be necessary before many of the benefits of normalization may be realized. Cuba’s hostility to global markets, and to the framework of globalization, will continue to hamper efforts to plug into global finance and commerce even without the impediments of the U.S. Embargo. Until the CCP cease fighting their revolution and start governing forward Cuba will continue to face problems that normalization will not solve.

For its part, the US remains fixated on the vapors of an old imperial project from 1898. That old imperial project is augmented by the perversities of a strain of elite Cuban-American policy orientation that is also fixated on January 1, 1959, which has become a part of the ossified mixture of policy premises that have marked U.S. thinking about Cuba since the early 1960s. Like their Cuban counterparts, some influential Cuban American elites have frozen Cuban policy to that revolutionary magic moment. References to the now nearly mythological Cuban Republic before 1959 serve as a touchstone for plans that are grounded in teasing out variations of “what-ifs” all projected from 1959 and on erasing the events between then and now. Even as Cuban American culture, interests, sensibilities and tastes change, the structures of Cuban American policy remain stuck in “restoration” sensibilities. That restoration-centered view dovetails nicely with the ideologically driven foreign policy predilections of the United States, and its cold war era ideological internationalism. For the U.S., that still means regime change. We are told that the reason for the change in policy is that the embargo had not worked. We are not told that the U.S. has abandoned the objective—indeed, President Obama’s statement made the point quite clearly that the opposite is true. American citizens, businesses, and civil society, are now encouraged to descend on the Republic, with the sense that these interactions themselves will produce movement toward change. Yet that is precisely what the Cuban state fears most. That element of control of the internal choices of a nation that the United States has sought to own, control or manage since the mid 19th century, provides a troubling foundation for normalization. But it is not surprising. Still, for the U.S., the benefits of normalization may have little to do with Cuba itself. For the President, it represents another point of confrontation with his Republican Party adversaries. Along with changes to immigration, normalization serves as a provocation to his political rivals and a dare to challenge his actions either by legislation or in the courts. In either case, the differences between the political parties can be more sharply drawn for the upcoming presidential elections and the Republican Party painted as obstructionist. U.S. business may remain wary as long as the 1960s expropriation claims remain unresolved. Yet they will be warier of Cuba’s current inability to finance its transactions than by past business wrongs.

This is not to minimize the importance of the changes to come. The influx of people from the U.S. will restore a balance of interaction cut off in the early 1960s. The influx of goods, brought in the suitcases of thousands of travellers, will effectively create secondary and wholesale markets for goods (though distorted by the technologies of import on a micro scale) that the Cuban bureaucracy had been able to resist even as Raul Castro sought a more vigorous approach to economic reform in 2011. Miami may continue to serve as the thought and culture leader for the greater Cuban community, including those in Cuba, though now that cultural relationship will be more open and may run more effectively in two directions. Cultural exchanges will drive development of the arts in both states in new directions with less connection with a preservationist ideal. Normalization will put U.S. relations with its Latin American neighbors on a sounder footing. It will liberate U.S. policy from the burden of Cuba as the US. seeks to deal with major Latin American states. It might reduce the impact of the socialist regional trading block. For Cuba, normalization brings the possibility of stability during transition. It might stem the tide, now about 1,000 able bodied persons a day, from a nation whose demographic profile looks more like that of Japan than of a developing state. And it will provide hard currency and goods for secondary markets that Cuba needs badly. And it may provide the discipline of markets to Cuba without threatening the core socialist premises on which the state is now organized (this last point to the chagrin of many in the United States). But mostly, perhaps, it will permit Cuba to develop as it chooses, however much that may conflict with the interests of others, without fear of direct U.S. threat.

However, the changes that normalization might bring will come despite rather than because of changes in public policy. Cuba and the U.S. remain their own worst enemies in the process. Powerful internal forces in both states may well derail the move. Normalization threatens, for both, the foundations of their foreign and domestic policies relative to the other. It will require Cuban-U.S. relations to move back into time and beyond the asphyxiating grip of January 1959. Cuba will have to undertake the difficult task of reshaping its political culture so that it becomes forward moving again, even within the parameters of Marxist-Leninist organization. That may require dismantling its antiquated economic system in favor of something more sustainable. The United States will have the equally difficult task of reducing its interference in the internal affairs of its neighbor. The U.S. might do better to pursue the pragmatic business of business rather than the business of regime change in its relations with Cuba. With a maturing architecture of business and human rights, developed out of the U.N. Human Rights Council, conformity to international norms in its economic activities might serve as a better venue for developing human rights based behaviors than the ideologically driven mania for photo-op elections that seems to have fouled U.S. foreign policy these last several decades.   Undertaken slowly, in measured and rational steps, it may be possible to make good the small promise set out in the normalization messages of both Presidents.

Weekly News Wrap: Monday, January 5, 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

Europe

Americas

UN/World

H-Diplo Roundtable on David Bosco’s “Rough Justice”

by Kevin Jon Heller

H-Diplo, part of H-Net, recently hosted a virtual roundtable on David Bosco’s excellent book Rough Justice:The International Criminal Court in a World of Power Politics, published by Oxford last year. Erik Vroeten introduced the roundtable, and Sam Moyn, David Kaye, and I submitted reviews. David then wrote a response. Here is a snippet from Erik’s introduction:

It is my pleasure to introduce the distinguished and diverse set of reviewers of this timely and important book. Samuel Moyn embeds Bosco’s book in a longer history of the tensions between power and justice. If international justice is not impartial, then it loses its legitimacy. Yet, powerful states have always had incentives to interfere with individual exercises of justice and they rarely fail to act on these temptations.  The ICC, despite all its normative appeal, has been unable to break this pattern.

David Kaye lauds Bosco for the clarity of his exposition and for treating the intersection between idealism and power politics “with great modesty and insight, and without a hint of dogma.” Yet, Kaye also finds that in evaluating the ICC we must look beyond power politics. Questions about the way the ICC has had more subtle influences on how national, subnational, and international actors conceive of justice-related issues are not answered in this book. Looking at such questions may lead to a different and more nuanced perspective about the role of the ICC in international affairs.

Kevin Jon Heller praises Bosco for writing “[..] a history of a complex international organization that is eminently readable yet does not sacrifice analytic rigor.” He especially appreciates the “deceptively simple theoretical structure,” which characterizes the relationship between the Court and powerful states. Yet, Heller also has some pointed criticisms. Most notably, he believes that Bosco underplays the failings of Luis Moreno-Ocampo as the Chief Prosecutor of the ICC. He also takes issue with some historical assessments. At times, Heller argues, Bosco understates the agency of the Court. For example, Moreno-Ocampo was under no obligation to accept the Security Council’s terms on Libya. At other times, Bosco oversells what the Office of the Prosecutor (OTP) might have done. It is really not up to the OTP to lobby in pursuit of referrals against non-member states.

I share the reviewers’ praise for the analytical clarity of the book. From the perspective of my discipline, international relations, I hope it will contribute to more subtle understandings of how power affects the workings of international institutions. But, as the reviews show, there are also important lessons for historians and lawyers. As in his previous volume,), David Bosco has given us a book that has the distinguished qualities of being clear, interesting, and persuasive.

The roundtable is well worth your time. You can download a PDF of all the contributions here.

JFK: Keeping the World Safe for Santa

by Kevin Jon Heller

Courtesy of Chris Moody, here is an actual letter written by John F. Kennedy in 1961 to a little girl in Michigan:

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Santa Claus has always seemed a bit communist to me. More of the Vietnamese or Chinese nationalist variety, I guess.

Happy holidays, everyone!

Guest Post: Accountability Impact or Impasse? The Curious Case of the North Korean Inquiry

by Catherine Harwood

[Catherine Harwood is a PhD candidate at the Grotius Centre for International Legal Studies at Leiden University]

After over a decade of reports alerting the UN Human Rights Council (HRC) to serious human rights violations in the Democratic People’s Republic of Korea (North Korea), in March 2013 the Council decided to establish an international commission of inquiry to investigate those allegations and to ensure “full accountability, in particular where these violations may amount to crimes against humanity”. Denied access to North Korea, the Commission travelled to several countries to hear from victims and witnesses. In a strong commitment to transparency, the Commission held public hearings and made many testimonies and exhibits available online. A year later, its report recorded a litany of serious human right abuses. The Commission found reasonable grounds to believe that North Korea had committed serious human rights violations and that many senior officials had committed crimes against humanity [para. 1225]. It issued a host of recommendations, including that the Security Council refer North Korea, a non-state party to the Rome Statute, to the International Criminal Court (ICC).

Although the Commission dissolved upon the delivery of its report, its accountability recommendations reverberated beyond the HRC and have remained on the intergovernmental diplomatic agenda. This contribution discusses some interesting features of the Commission’s findings and tracks the consequences of its report – some of which have been curious and unexpected – before offering some thoughts as to the impact of the inquiry in relation to the goal of ensuring accountability.

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Weekly News Wrap: Monday, December 22, 2014

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

Events and Announcements: December 21, 2014

by An Hertogen

Events

  • For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (University of Frankfurt), Stephan Schill (Max Planck Institute Heidelberg), and Christian J. Tams (University of Glasgow) – has been a forum for the discussion of conceptual issues of international investment law. The next workshop, to be held March 13-14, 2015, will explore the role of history in the interpretation and application of international investment law. It will cover a wide range of issues, from debates about investment law’s imperial origins to the drafting history of the World Bank’s ICSID Convention. The program is available here. As in previous years, the workshop will bring together academics and practitioners and provide them with a forum for open and frank exchanges. To register, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt (S [dot] Schimpf [at] jur [dot] uni-frankfurt.de) by February 28, 2015.

Calls for Papers

  • A call for papers has been issued for the International Criminal Justice Stream at the Socio-Legal Studies Association Annual Conference which takes place at the University of Warwick from March 31 – April 2, 2015. Submissions are invited on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would also be welcomed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Abstracts may only be submitted via the Easy Chair system, must be no longer than 300 words, include your title, name and institutional affiliation and your email address for correspondence. Successful papers will be published in a symposium; details of which will be available shortly. For an informal discussion please email the convenor, Anna Marie Brennan at Anna [dot] Marie [dot] Brennan [at] liverpool [dot] ac [dot] uk. The deadline for the submissions is Monday January 19, 2015.
  • The Graduate Institute in Geneva is convening a conference entitled ‘International Law and Time’ to take place in Geneva, Switzerland, from June 12–13, 2015, to explore the phenomena of time and change in international law. Abstracts are due by February 15, 2015. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Weekend Roundup: December 13-19, 2014

by An Hertogen

This week on Opinio Juris, our regular bloggers touched on a variety of topics again with Kevin rejecting Ashley Deeks’ evidence that the international response to ISIS supports the “unwilling or unable” test under article 51 UN Charter and Kristen expanding the UN’s list of 13 things to know about UN sanctions to 16. Prompted by Christopher Kutz’ essay, Julian asked whether the norm against torture is indeed dying in the US.

In guest posts this week, Bede Sheppard discussed new guidelines to protect schools and universities from military use during armed conflict, and Rick Lines and Damon Barrett pointed to an interesting question of international law posed by the US’ four pillar approach to international drug control.

Finally, Kevin welcomed Points of Order to the blogosphere and, as every week, you could count on Jessica to wrap up the international news headlines and list the events and announcements.

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

Guest Post: Has the US just called for unilateral interpretation of multilateral obligations?

by Rick Lines and Damon Barrett

[Dr Rick Lines and Damon Barrett are the Chair and Director of the International Centre on Human Rights and Drug Policy, University of Essex]

These are interesting times for drug law reform, which, as it gathers pace, is asking important questions of international law. A UN General Assembly Special Session on Drugs is set for 2016 just as national reforms are challenging international treaties that form the bedrock of a global prohibition regime that has dominated since the turn of the twentieth century. States parties to the three UN drug control conventions must now confront the legal and political dilemmas this creates. This is the situation in which the US now finds itself following cannabis reforms in various states that are at odds with these treaties. The State Department has issued its official position in this regard, one that stretches and boundaries of interpretation and raises other serious questions for international law.

In an October statement Ambassador William Brownfield set out that position in the form of the ‘four pillar’ approach the United States will now follow in matters of international drug control. While the four pillars, set out below, have prompted much discussion and debate among those working on drug policy issues, attention among international lawyers has been rare. This is something of an important gap given the implications of what the US suggests:

  1. Respect the integrity of the existing UN drug control conventions.
  2. Accept flexible interpretation of those conventions.
  3. Tolerate different national drug policies…[and] accept the fact that some countries will have very strict drug approaches; other countries will legalise entire categories of drugs.
  4. Combat and resist criminal organisations, rather than punishing individual drug users

Internationally, the four pillars have emerged in the context of efforts, led primarily by Latin American States, to open discussions on the future of the international drug control regime, and look at alternatives to the current and destructive prohibitionist paradigm.  Domestically, it comes in the context of successful referenda to legally regulate cannabis in several US states.

Both of these are welcome developments. The international drug regime is long overdue for reform, and the cannabis referenda will produce many positive criminal justice, health and social outcomes in those US states adopting them. However, domestic cannabis law reform places the United States in a compromised position within the coming debates on the future shape of the international drug control regime.

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16 things to know about UN Sanctions

by Kristen Boon

The UN’s Department of Political Affairs recently published this list of “13 things to know about UN sanctions.”  If you scroll down on the link above, you’ll also see some great sanctions graphics.

United Nations Sanctions Primer

1. Since the creation of the United Nations, the Security Council has established 25 sanctions regimes. They have been used to support conflict resolution efforts, prevent the proliferation of nuclear and other weapons of mass destruction, and counter terrorism.

2. “UN sanctions have proved to be an effective complement to other Security Council instruments and actions. We know it is not perfect, but there is also no doubt that it works,” Under-Secretary-General Jeffrey Feltman told the 15-Member of the Council in the 25 November briefing.

3. There are currently 15 sanction regimes, the highest number in the history of the Organization.

4. UN sanctions are fairly economical. The total cost of supporting the 15 sanctions regimes is less than $30 million per year.

5. The first United Nations sanctions regime was established in 1966 when the Security Council imposed sanctions on Southern Rhodesia. By a vote of 11 to 0 – with four abstentions – the Council declared an international embargo on 90 per cent of Rhodesia’s exports, forbade the UN’s then 122 Member States (there are now 193) to sell oil, arms, motor vehicles or airplanes to Rhodesia.

6. The most recent sanctions were applied against Yemen this November. The UN Council ordered a freeze of all assets and a global travel ban on Saleh, the rebel group’s military commander, Abd al-Khaliq al-Huthi, and the Houthi’s second-in-command, Abdullah Yahya al Hakim.

7. In 1999, the Council established its first sanctions monitoring group on Angola.

8. There are now 11 monitoring groups, teams and panels with a total of 66 experts working in support of the Security Council and its sanctions committees.

9. Expert panels regularly cooperate with international organizations, such as INTERPOL, the International Civil Aviation Organization (ICAO), the International Air Transport Association (IATA) on issues related to travel bans, and with national authorities and the private sector on asset freezes.

10. DPA underscored in today’s briefing that UN sanctions are meant to be supportive not punitive. They are not meant to cripple states but to help them overcome instability, address massive human rights violations, curb illegal smuggling, and counter terrorism.

11. The DPA’s Security Council Affairs Division provides substantive and administrative support to the sanctions committees and expert panels; as well as engages the wider UN system in support of UN sanctions.

12. This year, among its other activities on sanctions, DPA let two missions on sanctions issues, one on the partial lifting of the arms embargo on Somalia and another on the termination of sanctions in Liberia. The aim was to strengthen these countries’ understanding of what the Council expects on sanctions issues and to enhance UN coordination on how the Organization can support implementation in these countries.

13. In 2006, the Secretary-General outlined four elements to improve the fairness and transparency of the sanctions procedures: the right to be informed; the right to be heard; the right to be reviewed by an affective review mechanism; and the need for periodic reviews, especially regarding the freezing of assets.

Let me add three things of my own:

14.   A recent UN high level review on sanctions took place between May – October 2014 (thus the reference to the 2006 document in #13 is a bit dated).  The background paper on the High Level Review website is well worth reading, as are the reports from the 3 working groups. See for example this briefing on Working Group 1, that included Security Council members.

15.   Technical assistance remains an important but controversial topic.   Australia proposed a resolution on technical assistance in November, 2014 but due to opposition by Russia, China and Argentina, the resolution was not put to a vote.   The basis of the opposition, as I understood it from statements during the Security Council session, was largely due to concern over an expansion of the Secretariat’s policy making role.   To put it differently, more technical assistance managed by the Secretariat might result in less Security Council authority.  Nonetheless, implementation gaps in sanctions remain a serious bar to sanctions effectiveness.  As sanctions become more sophisticated, so too do techniques of evasion, and for UN sanctions to be effective, there is no question that common ground will need to be identified to assist states, particularly, but not exclusively those states in whose territories individual and entities are targeted, neighboring states, and regional hegemons.

16.   There is growing support to expand the Ombudsperson’s jurisdiction to other sanctions regimes.  Currently, her office reviews delisting requests from the 1267 Al Qaida regime.   Individuals and entities listed under other regimes only have access to a focal point, who has far less powers.  If these proposals continue to gain momentum, there will be a significant improvement to the due process procedures noted above.  See an overview of developments in this debate here.

Do you have anything else to add to the list?  Please use the comments box to chime in.

Is the “Norm” Against Torture Dying (At Least in the U.S.)?

by Julian Ku

Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that “norms” against torture and assassination have died in the United States in the aftermath of the 9/11 attacks.  Kutz is not writing to support the CIA interrogation program or the US government’s use of assassination, but he does think that, as a descriptive matter, the rules against torture and assassination may be dead or dying in the U.S. He suggests that democracies have a limited ability to maintain commitment to these kinds of norms because of a democracy’s “sensitivity” to public mobilization.  Eric Posner has a typically interesting response to Kutz here.

I don’t know if the norm against torture is dead in the U.S., but I will say that the U.S. public appears completely unmoved by the release of the U.S. Senate Intelligence Committee’s very critical report on the CIA interrogation program.  A raft of new polls shows that the U.S. public’s support for an absolute ban on torture remains relatively low, while a majority, or perhaps a strong plurality, support the actual CIA program and methods that was so harshly criticized by the Senate Report.  See the WSJ/NBC poll here.  See the Pew Research Survey poll here.  We can quibble about the details, but those post-Senate Report polls show almost no change from pre-Senate Report polls.

I emphasize again that the U.S. public’s support for the CIA program does not in any way justify the legality or the morality of the program.  But the public’s failure to support a ban on torture, especially the absolute ban on torture embedded in international law and U.S. law, cannot be ignored either.  It suggests there is little chance of a prosecution over the CIA program, and it really poses a tough challenge for international lawyers. What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?  As Kutz’s paper suggests, this whole episode suggests widely accepted international law norms can be fragile, even (or especially) in liberal democracies.