There’s an interesting, if I suspect academic, discussion over at Just Security at the moment about whether the recent proposal by 51 State Department diplomats to use military force against the Assad regime directly would be lawful under domestic and/or international law. My suspicion that the discussion is at least at present academic is based on the unlikelihood that any such policy change is in the offing – particularly in this election year and, more important, in the context of the current President’s longstanding position that greater U.S. military force of this nature in Syria would be counterproductive. But academic at the moment or no, the questions are important and will certainly be faced early in the term of the administration that takes office in January 2017. And particularly on the international law side, the questions go to the heart of the larger issue of how much formal analysis one thinks international law in this area can bear. Marty Lederman and Ashely Deeks started the discussion here, Harold Koh responded here, and Charlie Savage has a good review of the way these debates unfolded in the administration considering the legality of the use of force in Libya and Syria here. So (more…)
Defense One points to a news story in the Baghdad Post that the Iraqi Security Forces may be preparing to deploy a ground-combat robot:
Loosely dubbed Alrobot — Arabic for robot — it has four cameras, an automatic machine gun, and a launcher for Russian-made Katyusha rockets, and can be operated by laptop and radio link from a kilometer away, the [Baghdad Post] story says.
One point is important to emphasize, the Alrobot is a remotely-controlled four-wheeled drone, it is not an autonomous weapon. By contrast, an autonomous weapon would be, in the words of a recent article from the Institute of Electrical and Electronics Engineers, “capable of selecting and engaging targets without human intervention.”
However, while the Alrobot would not be autonomous, Defense One also notes that it will also not be the first remotely-controlled battlefield weapon deployed in Iraq:
Back in 2007, the U.S. Army deployed three armed ground robots called the Special Weapons Observation Reconnaissance Detection System, or SWORDS, from weapons maker Foster-Miller (now owned by Qinetiq). SWORDS basically consisted of a Foster-Miller TALON robot armed with a machine gun.
However, the SWORDS unmanned ground vehicles (UGV’s) were never used on patrol. A 2008 Wired article (to which Defense One linked) explained in an addendum:
Senior Army leadership, however, was not comfortable with sending them out to do combat missions due to safety reasons, and they are now placed in fixed positions, said Robert Quinn, vice president of Talon operations at Foster-Miller…
It seems to be a “chicken or the egg” situation for the Army, he said. The tactics, techniques and procedures for using armed ground robots have not been addressed.
But until there is an adequate number of SWORDS to train with, these issues can’t be worked out, he said.
.A successor weapons system, the Modular Advanced Armed Robotic System (MAARS) is currently being developed by QinetiQ. Like its predecessor, MAARS would not be an autonomous weapon, but a remotely-controlled battlefield robot with humans making the tactical decisions. Consequently, the legal issues here would be less like the many concerns stemming from using artificial intelligence to make targeting and live-fire decisions, but rather would be similar to the legal issues arising from the use of armed unmanned aerial vehicles (UAV’s). Possible questions would include whether the use of the cameras and other sensors on the UGV would allow its operator to adequately discriminate between combatants and noncombatants. Does inserting an remotely-controlled armed robot make one more likely to use force? Under what situations would using such a system be disproportionate?
This may depend, in part, on how such systems are deployed. There could be different legal implications in using a UGV to, for example, “stand post” to guard the perimeter of a platoon that is out on patrol in a remote mountainous region as opposed to using a UGV in an urban combat situation where there are many civilians in close-quarters. The U.S. Marine Corps, for example, is considering when and how the use of weapons like MAARS would be appropriate.
For another recent post on robots and regulations, see my post from earlier this summer.
The updated Commentaries are an interpretive compass emerging from more than 60 years of application and interpretation of the Geneva Conventions. Over the rest of 2016, several academic blogs are hosting a joint series that brings to light the significance of the updated Commentary on the First Geneva Convention.
In March, the ICRC released an updated Commentary on the First Geneva Convention of 1949 (GCI). This is the first instalment of six new Commentaries aimed at bringing the interpretation of the Geneva Conventions and their Additional Protocols of 1977, to the 21st century.
This multi-blog venture is divided into three episodes, each of which focusing on a GCI provision – or a theme within a set of provisions – whose application and/or interpretation have evolved and give rise to debate among States and commentators. For each phase, the three blogs will invite one author to either initiate the conversation or act as respondent. The three episodes are respectively scheduled for this summer, fall and winter 2016.
The blogs will be regularly updated with past and upcoming posts, along with an evolving publication calendar. To kick off the series, Humanitarian Law & Policy will invite Jean-Marie Henckaerts, Head of the Update Project at ICRC, by locating the GCI Updated Commentary into the legal landscape and applying the rules on treaty interpretation to the Geneva Conventions. Expect the post by the end of this month on this website, or get it directly in your mailbox.
Bringing the Pictet’s Commentary’s Legacy Into the 21st Century
In 2011 the ICRC embarked on a major project intended at updating its original Commentaries, drafted under the general editorship of Jean Pictet in the 1950s (for the Conventions), and of Yves Sandoz and other ICRC lawyers in the 1980s (for the Protocols).
Since their publication, these commentaries have become an authoritative interpretative guide for States, armed forces, national and international courts, academics and civil society. However, in order to remain relevant, they needed to be updated to reflect more than 60 years of subsequent developments in applying and interpreting the Geneva Conventions. With the release of the Commentary on GCI, an important milestone has been reached, with key findings related to GCI-specific articles but also common articles governing the scope of application of the Conventions and their enforcement.
The initial edition of the Commentaries mostly provided historical context for the adoption of the Conventions and their Additional Protocols, drawing on the negotiation process of the treaties, as well as practice prior to their adoption. In this respect, they retain their historic value. The updated Commentary builds on and preserves those elements that are still relevant, while incorporating more than six decades of application and interpretation of the Conventions – 40 years in the case of the 1977 Additional Protocols. Capturing the evolution of warfare and humanitarian challenges, as well as technological and legal developments, led to many additions but also updates.
The multi-faceted nature and complexities of today’s armed conflicts have also resulted in more elaborated interpretations on the scope of application of the law in armed conflict. The new Commentary aims to capture key elements of the ongoing debate about where, when, and to whom IHL applies, setting out the view of the ICRC while also indicating other interpretations.
The Commentary provides important clarifications on key aspects of the legal regime governing the protection of the wounded and sick in armed conflict. On the obligation to respect and protect the wounded and sick, it addresses issues ranging from taking their presence into account in a proportionality assessment when planning attacks, to the general obligation to have medical services in the first place. On the protection owed to medical personnel, it gives details on the conditions under which such protection may be lost. The new GCI Commentary also captures changes in the regulation of offers of services by impartial humanitarian organizations, on the dissemination of IHL, and on criminal repression. It also adds a number of subject matters, such as the prohibition of sexual violence and non-refoulement.
For more on the updated Commentaries project, see the Humanitarian Law and Policy’s post here.
We at Opinio Juris are very proud that our colleague Duncan Hollis of Temple University Law School was elected on June 15 by the General Assembly of the Organization of American States to the Inter-American Juridical Committee, which
…serves the Organization as an advisory body on juridical matters of an international nature and promotes the progressive development and the codification of international law.
It also studies juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation.
No two members of the Committee may be from the same state and Duncan’s term will start in January 2017, at the end of David Stewart’s three years of service. Duncan is one of three new members of the Committee.
With his wide-ranging expertise on topics ranging from the law of treaties to the challenges that new technologies pose to International Humanitarian Law, Duncan will be a great addition to the Committee. Congratulations!
I thought I had largely said what I had to say concerning emojis and international law in my previous post. SRSLY. 😉
But then John Louth, who knows of my interest in issues of recognition and non-recognition of aspirant states, pointed out this article from Wired which discusses, among other things, the issue of which national flags are awarded emoji and which are not. So let us return to the emoji for another post.
Consider the following passage for the Wired article:
…the most contentious emoji arena isn’t food, or even religion. It’s flags. From October 2010 until April 2015, there were a limited number of flag emoji, including the Israeli flag—but notably, no Palestinian flag. When the Palestinian flag was added—along with some 200 other flag emoji—it was cause for celebration.
Palestine exists in an unusual limbo in international law. It is recognized by some countries as Palestine, and by others as the Palestinian Territories.
“Technology has been used as a weapon to revolutionize the Middle East, and now it is being used as a weapon to legitimize Palestine,” wrote Palestinian columnist Yara al-Wazir at Al Arabiya earlier this year. “Introducing the Palestinian flag as an emoji is more than just a symbolic gesture.”
The article then goes on to note that some national groups, such as the Kurds, do not have flag emojis.
So, how does the Unicode Consortium, a non-state actor, decide whether to assign a symbol for the flag of an entity claiming to be a state, especially if that statehood is contested? (For more on the Unicode Consortium, please see my previous post.) The Consortium’s FAQ explains the criteria:
The Unicode Standard encodes a set of regional indicator symbols. These can be used in pairs to represent any territory that has a Unicode region subtag as defined by CLDR [Common Locale Data Repository], such as “DE” for Germany. The pairs are typically displayed as national flags: there are currently 257 such combinations. For more information, see Annex B: Flags in UTR #51.
As described on its own website, the ISO is:
an independent, non-governmental organization made up of members from the national standards bodies of 162 countries. Our members play a vital role in how we operate, meeting once a year for a General Assembly that decides our strategic objectives.
Our Central Secretariat in Geneva, Switzerland, coordinates the system and runs day-to-day operations, overseen by the Secretary General.
It also describes itself as a network of national standard–setting bodies. With its combination of a permanent secretariat as well as a bureaucratic network, the ISO has aspects of both an intergovernmental network and an international organization. (See more on ISO governance, here.)
To receive a top-level country code from the ISO, an entity must be: (a) a United Nations member state, (b) a member of a UN specialized agency, or (c) a party to the Statute of the International Court of Justice.
Thus, the Unicode Consortium’s decision-making process to decide whether or not to assign a glyph for a country flag is based on the decision by the ISO, an organization with significant national government involvement, on whether or not a territory receives a country-code. The ISO’s decision is itself reliant on the aspirant entity’s relationship to the United Nations.
In short, the ISO has a two-letter designator for Palestine (see, for example, this ISO newsletter [.pdf]), so the Consortium by its own rules can (though does not have to) assign a code for the flag of Palestine. No ISO code for a Kurd state; no Kurdish flag emoji. And all of these stem from degrees of relationship of these entities to the UN.
In sum, a non-state consortium is basing its decisions on a state-based regulatory network (the ISO), which in turn is using criteria based on an intergovernmental organization (the UN). The result in the case of flag emojis is that the Consortium unlikely to assign a flag where the ISO is not willing to assign a separate country code, and ISO will not assign such a code without first looking to UN practice.
Receiving a flag emoji is not the recognition of a state by another state or even by an interstate organization. Nonetheless there are many hurdles to the designation of a flag emoji. Given the significant state interest in issues of recognition, explicit or implied, this is not surprising.
And if readers find other interesting overlaps of the Unicode Consortium, emojis, and international law, please let me know!
Emojis: love them or hate them, you can’t seem to get away from them. 🙂 The smiley face, the thumbs-up, the smiling pile of poop, and the hundreds of other little symbols and pictograms that get used in text messages, tweets, and the like. And tomorrow, June 21, we will have 71 new emojis to play with. Why will there be new emojis tomorrow? And what does this have to do with international law? Read on…
First, a bit of background: while the smiley face is very much an iconic 1970’s symbol (“Have a Nice Day!’), the use of what we would call emoji in electronic communications started in the 1990’s in Japan, for use in cellphone texts. Each little frowny face or thumbs-up, though, needs to be mapped using a common standard, or else it would only be able to be seen on certain platforms (say, an Android smartphone) but not on others (such as a Mac).
Consequently, there is actually an approved set of “official” emojis that can work across multiple software and hardware platforms and that new emojis are released once a year by a standard-setting organization called the Unicode Consortium, “a non-profit corporation devoted to developing, maintaining, and promoting software internationalization standards and data, particularly the Unicode Standard, which specifies the representation of text in all modern software products and standards.” The Consortium’s membership includes Apple, Adobe, Google, Microsoft, Oracle, and Yahoo, among others. By providing cross-platform standards, the Consortium is essentially making the soft law of the interoperability of symbols across different programs and devices. 😎
Proposals for new emojis are made to the Unicode Consortium, which then reviews and decides which symbols should become standard and how they should be encoded. There are currently about 1,300 emojis, with about 70 added each year. (By way of perspective the total “Unicode Standard is mammoth in size, covering over 110,000 characters. “) The list of new emojis being released on June 21 is here. Can’t wait to use the team handball emoji!
But, besides this being an unexpected story of industry standard-making bodies and funny little symbols, one must keep in mind that the Unicode Consortium’s responsibilities go well beyond encoding the broken heart glyph. As NPR reported last year:
The Unicode Consortium’s job has always been to make basic symbols work across all computers and other devices, but the emoji has put the group at the center of pop culture.
“Our goal is to make sure that all of the text on computers for every language in the world is represented,”
getting characters added to the Unicode Standard is a long, drawn-out process. In addition to the original Japanese emoji characters, the Unicode additions included other new characters — such as country maps and European symbols.
What this means is that there is a data file that maps every individual emoji symbol to a Unicode code point or sequence.
But this is just the standardization of the symbols. Supporting emoji, as well as the specific design of the emoji characters, is up to software makers.
Thus, the administrative scaffolding that makes emojis ubiquitous is based on a non-governmental standard-setting body using soft law to allocate Unicode points or sequences to symbols (be they emojis, letters, mathematical symbols, etc.) that are approved by the Consortium. The approval of emojis is simply one example of a set of responsibilities with much broader implications than just whether “nauseated face” deserves its own encoding. (According to the Consortium, it does.)
Besides interest in the process of institutional decision-making in standard-setting bodies such as the Consortium, there is also a question of whether the Consortium’s overall goal of ensuring that the script of every language in the world is represented digitally is in tension the current focus on encoding more and more emoji. Some have expressed concern that this focus on emojis may divert time and resources away from the protection of endangered languages. Peoples who are trying to preserve endangered languages (such as, for example, Native American and First Nation languages) would be greatly helped if the alphabet of that language would be as easy to read across a variety of computer platforms and digital devices as a smiley-face. Consider this an issue of resource allocation. Letterjuice, a Brighton and Barcelona-based type foundry, posted a thoughtful essay on Unicode and language rights, which stated: (more…)
Adjudicating international trade and investment disputes: between interaction and isolation The PluriCourts Centre of Excellence at the University of Oslo will host a two-day conference on international trade and investment disputes. The conference will take place on Thursday and Friday, August 25-26 at the Faculty of Law, University of Oslo, Norway. The webpage with the final programme and registration information is available here. For more information, please contact: Daniel Behn, PluriCourts (d [dot] f [dot] behn [at] jus [dot] uio [dot] no).
Calls for Papers
- The American Society of International Law’s Dispute Resolution Interest Group and Yale Law School’s Center for the Study of Private Law are hosting a workshop for junior scholars. The workshop will be a safe space in which aspiring and junior academics can get feedback through group discussion on academic works in progress in international dispute resolution. Authors will not give formal presentations of their work. Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. This format permits lively discussion of ideas and writings that may be inchoate or not yet fully developed. Discussants may include other junior academics at Yale and other authors participating in the workshop. The workshop will be held at Yale Law School on the afternoon of Friday, October 28, 2016. All participants will be expected to attend the entire workshop and to be prepared to comment on the other papers,up to a maximum of three. We are unfortunately unable to fund travel but will host a dinner in the evening. 500-700 word abstracts may be submitted by midnight Eastern Time,J uly 15, 2016 to this folder. Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. The authors whose proposals are chosen will be informed by August 15th, 2016. All participants must submit a substantial work in progress by October 7, 2016, which will be circulated in advance of the workshop to registered attendees. Please direct any questions to sadie [dot] blanchard [at] yale [dot] edu. The full call for papers is available here.
- The Hugo Valentin–Centrum of the Uppsala Universitet is pleased to announce a call for papers for its upcoming panel on “Emotional Warfare and its Limits: Towards an Affective Turn in International Humanitarian Law”, organized in the context of the International Conference on “Historicising International (Humanitarian) Law? Could we? Should we?” on 6–8 October 2016. When and why did the law of armed conflict become “humanitarian”? What role do fear, envy, or friendship play in the regulation of war? Can law offer an effective way out of the irrationality of violence? Possible answers to these questions cannot be addressed by means of strictly legal arguments, and should find place in other disciplines which have been traditionally permeated by an emotional discourse. This panel will discuss the conceptual debate on feelings such as hatred, resentment, compassion, nostalgia, fear, empathy/sympathy, jealousy, shame, humiliation, affection/love, among others, in order to examine international humanitarian law in its historical sense. Suggested topics may include (but not limited to): Emotions involved in the development of international humanitarian law; the role of emotions in the creation of customary international humanitarian law; and the affective expression of international States and non–state entities during armed conflicts. Abstracts of no more than 500 words should be submitted by e-mail to Emiliano J. Buis (ebuis [at] derecho [dot] uba [dot] ar) and Ezequiel Heffes (ezequielheffes [at] gmail [dot] com) no later than July 18, 2016. Abstracts should be accompanied by name, affiliation and e-mail address. Proposals will be selected on the basis of their quality, originality, and thought–provoking capacity. Any questions about these themes or the suitability of a possible submission may be directed by e-mail to the abovementioned individuals.
- The Center for Human Rights and Global Justice (CHRGJ) invites submissions of scholarly papers for a conference on human rights and tax, to be held at NYU School of Law on September 22-23, 2016. The conference aims to develop a deeper understanding of the ways in which tax policy is a centrally important form of human rights policy, and to consider how the international human rights framework can best be used to promote greater equality and justice through the global tax regime. For years, resource constraints have been cited as the principal limitation on the ability of States to fulfill their human rights obligations, particularly when it comes to economic, social and cultural rights. Yet with few exceptions, human rights scholars and practitioners have shied away from core economic and financial debates, leaving the policies that shape resource availability and allocation largely in the hands of economists, tax and investment lawyers, and “development” experts. Those technocrats, in turn, have rarely paid heed to the expanding corpus of human rights law and its implications for State and non-State actors. There has been very little dialogue between tax and human rights experts, and even less scholarship on the intersection of these fields. CHRGJ’s conference aims to help fill that gap. See Call For Papers here for further details. Submission deadline is 1 July.
- Call for Abstracts: The American Society of International Law’s Dispute Resolution Interest Group and Yale Law School’s Center for Private Law are hosting a workshop for junior scholars. The workshop will be a safe space in which aspiring academics, post-docs, doctoral students, fellows, VAPs, other non-tenure-track academics, and pre-tenure professors can get feedback through group discussion on academic works in progress in international dispute resolution. The workshop will be held at Yale Law School on the afternoon of Friday, October 28, 2016. We are unfortunately unable to fund travel but will
host a dinner in the evening. 500-700 word abstracts may be submitted by midnight Eastern Time, July 15, 2016. Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. More details are available here.
- The British Institute of International and Comparative Law is currently advertising for the Director of the Investment Treaty Forum and Senior Research Fellow in International Investment Law.
- The latest issue of Trade, Law and Development (Vol. 7, No. 1) [TL&D] has been published. The special issue is on Government Procurement.
- In 2015 the Faculty of Law of Maastricht University has taken over The Hague Prize for International which was established in 2002. With a view to continuing the Prize Maastricht University will collaborate with the Municipality of Maastricht. The main Prize will be awarded every five years to individuals who have made- through publications or achievements in the practice of law – a special contribution to the development of public international law or private international law or the advancement of the rule of law in the world. The Prize consists of a diploma, a monetary award of € 10.000,- and a drawing. The prize will be awarded for the first time in Maastricht on 8 December 2016. In the intervening years when the main Prize is not awarded, a Junior Prize will be awarded to promising younger academics in the field of human rights. The Junior prize will be awarded for the first time in 2018. It will carry a financial award of € 3.000,-.Recipients of the Hague Prize for International Law in the past included Prof. Shabtai Rosenne (2004), Prof. M. Cherif Bassiouni (2007), Dame Rosalyn Higgins (2009), Prof. Paul Lagarde (2011) and Prof. Georges Abi-Saab and Prof. Sir Elihu Lauterpacht (2013). The Board of the Maastricht Prize Foundation hereby invites anyone to nominate candidates who deserve such recognition for their contribution to international law. Nominations for the Prize will be accepted until 1 August 2016. Chairperson of the Nominating Committee is Prof. L. Lijnzaad. Reasoned recommendations for nominations should be sent to Prof. J. Vidmar, Secretary of the Nominating Committee, Maastricht University, Department of International and European Law, P.O. Box 616 Maastricht, The Netherlands, or by email:
law-maastrichtprize [at] maastrichtuniversity [dot] nl by 1 August 2016. Additional information can be found on the website of the Maastricht Prize.
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.
Foreign Policy has a great report from Michael Shifter on the ongoing diplomatic battle within the members of the Organization of American States over how to respond to Venezuela’s ongoing political and economic crisis. According to Shifter, the OAS Secretary General Luis Almagro is pushing hard to get the OAS membership to invoke Article 20 of the OAS Democratic Charter at the upcoming June 23 special session. Under Article 20, the Secretary General may ask the Permanent Council of the OAS to “collectively assess” as situation where there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.” The Permanent Council can then undertake “necessary diplomatic initiatives, including good offices, to foster the restoration of democracy.”
The OAS Secretary-General has already issued a long 114 page report explaining why he believes (starting on p. 35) that there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order” of Venezuela. I haven’t been following the Venezuela situation closely, but this report certainly lays out a strong case. Even more importantly in my view, it offers a good explanation of why members of the OAS have (via the Democratic Charter) a strong international legal obligation to democratic governance.
The penalties for breaching this obligation aren’t all that onerous. Under Article 21, the OAS, via a special session, can suspend Venezuela from the OAS. I am not sure how likely this is to happen, given that Article 21 has a 2/3 majority requirement.
Still, I find this whole episode a fascinating example of how an international organization can become the key vehicle for influencing the domestic governance of one of its member states. Key states are concerned about the crisis in Venezuela, and it looks like the OAS will be the chosen vehicle of (very soft diplomatic) intervention.
I am delighted to announce that OUP has just published Mark Kersten’s new book, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Here is the press’s description:
What happens when the international community simultaneously pursues peace and justice in response to ongoing conflicts? What are the effects of interventions by the International Criminal Court (ICC) on the wars in which the institution intervenes? Is holding perpetrators of mass atrocities accountable a help or hindrance to conflict resolution? This book offers an in-depth examination of the effects of interventions by the ICC on peace, justice and conflict processes. The ‘peace versus justice’ debate, wherein it is argued that the ICC has either positive or negative effects on ‘peace’, has spawned in response to the Court’s propensity to intervene in conflicts as they still rage. This book is a response to, and a critical engagement with, this debate.
Building on theoretical and analytical insights from the fields of conflict and peace studies, conflict resolution, and negotiation theory, the book develops a novel analytical framework to study the Court’s effects on peace, justice, and conflict processes. This framework is applied to two cases: Libya and northern Uganda. Drawing on extensive fieldwork, the core of the book examines the empirical effects of the ICC on each case. The book also examines why the ICC has the effects that it does, delineating the relationship between the interests of states that refer situations to the Court and the ICC’s institutional interests, arguing that the negotiation of these interests determines which side of a conflict the ICC targets and thus its effects on peace, justice, and conflict processes.
While the effects of the ICC’s interventions are ultimately and inevitably mixed, the book makes a unique contribution to the empirical record on ICC interventions and presents a novel and sophisticated means of studying, analyzing, and understanding the effects of the Court’s interventions in Libya, northern Uganda – and beyond.
I’ve been following (and promoting) Mark’s work for a long time — since he was a PhD student at the LSE and had just started the blog Justice in Conflict. The blog has turned into a major player in the world of international criminal law, and I have no doubt that Mark’s book will have a significant impact on the field, as well. I’ve had the pleasure of reading it, and it’s excellent.
Buy Kersten! You’ll learn something and help better society, because Mark says that “OUP has agreed to make up to 200 copies of the book available, with all royalties I earn from sales of the book being used to pay for those copies to be shipped to libraries and universities across Africa, especially to those in ICC-affected countries.”
From our friends at ASIL comes word of the call for proposals for this year’s ASIL Research Forum. The deadline for proposals is July 11. Here’s the text of the whole message:
The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held at ASIL Academic Partner University of Washington School of Law in Seattle, Washington, November 11-12, 2016.
The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress from across the spectrum of international law. Please note that – in addition to academics – private practitioners, government attorneys, international organization representatives, and non-government lawyers are frequently selected to present papers based on the abstracts they submit.
Papers may be on any topic related to international, comparative, or transnational law and should be unpublished at the time of their submission (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Multiple submissions are welcome, but authors will only be selected to present on a single abstract, including co-authored papers.
For full instructions and to submit a proposal, visit www.asil.org/researchforum. Submissions are due by 12 noon ET on Monday, July 11, 2016.
On behalf of Doughty Street Chambers, I want to publicise two Memorials — one in the Hague and one in London — that will be held in the next few weeks for John Jones QC, beloved friend and colleague, who tragically passed away in late April. Here is the information:
In order to celebrate the life and many personal and professional achievements of our much missed friend and colleague John Jones QC, two memorial events are organised in The Hague and London.
A celebration of John’s life will be held at The Hague Institute for Global Justice on Wednesday 29th June at 7.00pm followed by a reception (a map is available by clicking here).
There will also be a Memorial in London at Middle Temple Hall (click here for directions) on Wednesday 6th July starting at 5.00pm followed by a reception in Middle Temple gardens. The Hall will be accessible from 4.30pm.
For more details and RSVP, click here.
I hope everyone who knew and loved John will be able to attend one of the Memorials. I will be at the one in London in early July.
Does the International Court of Justice Have Jurisdiction over Iran’s Claim Against the U.S? Actually, Maybe It Does
After about two months of public statements threatening to take the U.S. to the International Court of Justice over frozen Iranian assets, Iran finally instituted ICJ proceedings yesterday under the 1955 U.S.-Iran Treaty of Amity, Economic Relations, and Consular Rights. Iran alleges in its complaint that the U.S. has violated the treaty’s obligations by taking Iranian government assets and redistributing them to families of U.S. marines killed in the 1983 Beirut bombing. In April, the U.S. Supreme Court upheld the constitutionality of a 2012 congressional statute authorizing the seizure of Iranian government assets for distribution to the plaintiffs.
Iran argues that the U.S. government violated the 1955 Treaty in numerous ways by its failure to recognize the separate legal identity of the Iranian Central Bank and other state-owned companies and its failure to provide protection for such property as required by international law. Iran further alleges that the U.S. conducted an expropriation of Iranian assets, while also denying access for those legal entities in US. court, while at the same time failing to respect their sovereign immunity, as well as other treaty violations.
Under paragraph 2 of Article 21 of the Treaty,
Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.
I have previously tweeted on more than one occasion that the ICJ would have no jurisdiction, but I had forgotten about this provision (luckily someone reminded me on Twittter). Believe it or not, Article 21 of the U.S-Iran Friendship Treaty has already been the basis for two prior ICJ proceedings: the U.S. case against Iran’s seizure of the U.S. embassy and its personnel (1979) and the Iranian case against U.S. actions against its Iranian oil platforms in 1992. So it is clear that Article 21(2) is a legitimate basis for jurisdiction, and the ICJ held in both prior cases that this provision conferred jurisdiction upon it.
On the other hand, Article 21 limits a party’s claim to a “dispute…as to the interpretation or application of the present Treaty.” This means Iran will have to limit its claim to violations of the treaty, rather than violations of general international law. This is harder than it looks. In the 2003 Oil Platforms judgment, the ICJ found that it had jurisdiction, and that U.S. attacks on the oil platforms were not justified on self defense. The ICJ nonetheless found that Iran’s claim that U.S. attacks on its oil platforms did not breach the “freedom of commerce” between the two nations, since no such commerce in oil was occurring at that time. So the U.S. lost on jurisdiction, but won on the merits.
So I am going to reverse my earlier views and tentatively guess that the ICJ will find that it has jurisdiction over this case. In particular, I think Iran will have a good argument that Article IV(2), which requires the U.S. give Iranian nationals’ property “the most constant protection and security within the territories of the other High Contracting Party, in no case less than that required by international law….” (emphasis added). I am not sure Iran is right that the U.S. violated Article IV(2), but I think Iran has a plausible argument that it could have been violated. That should be enough for jurisdiction.
I nonetheless expect the U.S. government to make a big fight over jurisdiction and admissibility. Even if it loses, the U.S. can slow down these proceedings tremendously by battling over jurisdiction and narrowing which claims Iran can bring forward. This strategy worked very well in the Oil Platforms case. Iran filed the proceedings in 1992. The ICJ did not issue an determination on jurisdiction until 1996. The ICJ then took another seven years to finally issue a judgment on the merits in 2003 (which the U.S. won anyway). With any luck, the U.S. could avoid a merits judgment here until 2027.
I think this case might move along more briskly, but it will still take a while. And I think the slow wheels of international justice might work out for both sides here. Iran’s leaders can say they are doing something, but it will not result in any immediate judgment that will put the U.S. on the spot. The U.S. can drag this out, and it might even prevail on the merits (I have no strong opinion on that complex issue yet).
I do not expect the U.S., however, to boycott of the entire proceedings, as China has been doing in the Philippines South China Sea arbitration. For one thing, there is really no need, as I explained above, since we could be in for a 10 year wait for a judgment. For another, the U.S. needs to show that it plays nice with international law and courts to bolster its own calls on China to abide by the South China Sea arbitration.