Recent Posts

Huge Win in the Zimbabwe Torture Docket Case

by Kevin Jon Heller

Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.

As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.

The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):

[48] This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate  charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.

The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take…

On the Perennial U.S. War Powers Fight

by Deborah Pearlstein

For readers interested in the domestic U.S. law and history of how the U.S. government authorizes the use of force abroad, I had a little piece this weekend over at Daily Beast summarizing the state of play. Among other things, it laments not only the executive practice of not going to Congress as often as it should, but also the gradual loss of other checks on the war power the Constitution’s drafters expected would operate. Here’s a snippet.

The framers reasons for requiring congressional assent for engagements beyond [self defense] reflected their belief that war was “the greatest of national calamities” and should therefore require the agreement of more—not fewer—members of government. More, it was motivated by a commitment to political accountability in a democracy. Rejecting the British “new model” army of Oliver Cromwell and its associated tradition of tyranny and oppression, the framers thought our armed forces should be manned by the citizen-soldier, one incapable of being turned to oppress The People of which he was part. The People themselves would be called up to fight. The Constitution would require Congress publicly to authorize military expenditures “in the face of their constituents” every two years. And only Congress could vote to take the country into war. War would and should be impossible in a free society without The People and their representatives’ consent. Fast forward two centuries, and all these checks have long since ceased to function. The citizen-soldier gave way to national conscription, which in turn gave way to today’s all-volunteer force. The requirement that Congress publicly authorize all military funding has been weakened by today’s vast reliance on private contractors, making it easier for legislators to shield huge swaths of military-related spending from public view by lodging them in less visible appropriations for other departments…. Madison assumed individuals in power would be ambitious, would want to assert their views, and would want to use their power to affect change. Ambition in Congress would counteract ambition in the Executive, and the daily struggle would help keep all the branches in check. But ours has become a Congress lacking all ambition, preferring to hide in the shadows of presidents whose own political courage sometimes fails. Together, they have helped make it ever more possible for the American people to neither feel nor bear the costs of war.

Weekly News Wrap: Monday, September 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

  • An American recently sentenced to six years hard labor by a North Korean court pretended to have secret U.S. information and was deliberately arrested in a bid to become famous and meet U.S. missionary Kenneth Bae in a North Korean prison, state media said on Saturday. 

Europe

Americas

  • The United States will not stand in the way of Venezuela securing a temporary seat on the U.N. Security Council in 2015-16 after Latin American and Caribbean states unanimously endorsed its bid, U.N. diplomats and U.S. sources say. 

Oceania

UN

Events and Announcements: September 21, 2014

by An Hertogen

  • The Junior International Law Scholars Association (JILSA) is holding its annual meeting on Friday, January 23, 2015, at the University of Miami School of Law.  JILSA is an informal network of junior scholars at mostly American law schools who get together annually for a self-funded workshop.  Junior faculty and fellows interested in presenting at the meeting should email proposals to MJ Durkee and Jean Galbraith by Friday, October 10.  If you are interested in presenting a working draft, please send us the title, an abstract, and an indication of how far along the paper is.  Because of the nature of the workshop, we can only include working drafts that have not yet been accepted for publication.  We also workshop early stage projects.  If you are interested in presenting on an early stage project, please let us know the working title and a few lines about the idea you are pursuing.  Finally, if you are interested in being a discussant, please let us know.  We will do our best to get back to everyone in November, and, for those whose working drafts are accepted for the conference, we will expect the authors to provide the drafts a few weeks before the conference.
  • The Human Rights Essay Award Competition sponsored by the Academy on Human Rights and Humanitarian Law seeks to stimulate the production of scholarly work in international human rights law. Awardees receive a full scholarship to attend the 2015 Program of Advanced Studies in Human Rights and Humanitarian Law in Washington D.C. This year’s topic is “Transitional Justice, International Human Rights and Humanitarian Law” and the deadline to submit is February 1, 2015. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review. For detailed guidelines about the award please visit the website or e-mail the Academy.

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: September 20, 2014

by An Hertogen

This week on Opinio Juris, we hosted an insta-symposium on the Scottish Independence Referendum. David Scheffer surveyed the legal terrain in case of a yes vote, Stephen Tierney discussed how Scotland’s move to independence would be characterised under international law, Milena Sterio argued that international law could develop a norm containing a positive right to secession under certain circumstances, Jure Vidmar looked at Scotland’s position in the EU, Tim Sparks took a long view, and Christopher Connolly discussed the phrasing of the referendum question. Finally, Chris asked whether there will be a Scottish precedent.

In other guest posts, Eliav Lieblich updated us on recent developments in an Israeli case reviving international prize law, Leila Nadya Sadat and Douglas J. Pivnichny wrote about recent steps towards a comprehensive treaty on crimes against humanity, Yanying Li alerted us to a UNGA resolution on a multilateral framework for sovereign debt restructuring, and Michael W. Lewis responded to Kevin’s critique last week of his post on the nature of self-defense.

In other posts by our regular contributors, Kevin criticized the University of Sydney for restricting academic freedom after it “un-invited” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific. Peter asked if ISIL fighters can be stripped of their passports, and remarked that the AUMF basis for an ISIL intervention looks likely to stick. More on ISIL came from Jens who discussed the issue of ransom and material support for terrorism. Finally, Kristen explained why the Security Council’s decision to take up the issue of Ebola is significant.

As always, Jessica wrapped up the news and listed events and announcements. Duncan also updated us on the new Executive Director of ASIL.

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

Ransom and Material Support

by Jens David Ohlin

The Foley family is furious that the US government did little to help them rescue their son, James Foley, from ISIS terrorists. In a recent New York Times article, the Foley family expresses frustration that European countries were quietly negotiating to pay ransoms for their nationals, while the US steadfastly refused to do so. As foreign nationals were gradually released for payments, detainees from the UK and the US remained behind because these two countries refuse to pay ransoms to terrorists. The Foleys figured this out late in the game and attempted a last-minute fundraising campaign to generate funds, but the effort came too late. They were also told by FBI agents that they could be prosecuted for paying a ransom to ISIS in exchange for their son.

I want to analyze in greater detail the claim that paying a ransom to ISIS could constitute a crime. I’m not aware of a specific federal statute banning the paying of ransoms to terrorist organizations. (If readers are aware of such a statute, please let me know in the comments section). Rather, I’m assuming that the FBI claim is based on the application of the material support provision of the federal code (18 U.S. § 2339B) which provides:

(a) Prohibited Activities.—

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

(2) Financial institutions.— Except as authorized by the Secretary, any financial institution that becomes aware that it has possession of, or control over, any funds in which a foreign terrorist organization, or its agent, has an interest, shall—
(A) retain possession of, or maintain control over, such funds; and
(B) report to the Secretary the existence of such funds in accordance with regulations issued by the Secretary.

The first question is whether the payment of ransom constitutes the knowing provision of material support or resources. I’m not sure what a jury would do with this question. On the one hand, any money, delivered for any reason, can be considered a type of resource. Furthermore, the statute criminalizes knowing support, not just purposeful support. If it was the latter, the Foleys could claim that their purpose was to free their son, not provide material support. But since the mens rea is knowingly, perhaps they would be liable even if their purpose was the freedom of their son.

The bigger issue is whether they could claim an affirmative defense. The most likely possibilities are necessity and duress.

Necessity applies when a defendant, in response to a threat or emergency, violates a criminal prohibition because doing so represents the lesser of two evils. In that sense, the necessity defense has a utilitarian or consequentialist logic stemming from its status as a justification. If the defendant produces a greater evil, then the defense no longer applies.

In contrast, duress applies when the defendant performs a criminal act due to a threat of grave injury or death to the defendant or a close associate, emanating from a third party. (In the past I’ve argued that the defense should apply even if the target of the threat is not a close associate.) The paradigm of duress involves an autonomy-reducing threat that requires a level of moral heroism that cannot be expected by the law. The third party “forces” the defendant to violate the criminal prohibition by virtue of a threat that cannot be reasonably ignored. As such, duress is an excuse which negates the culpability of the actor. As an excuse, duress should not require that the defendant selected the lesser of two evils, because the claim has nothing to do with the defendant’s selection of a better outcome. Indeed, in duress situations the defendant may have selected the worse outcome because they are unwilling to sacrifice the life of the threatened individual.

American jurisdictions impose restrictions on the application of both defenses. Under the rule from Dudley & Stephens, necessity and duress are unavailable in cases of murder. There is a complicated question of whether the same exclusion should apply in manslaughter cases.

It seems clear to me that the Foleys, if they had paid a ransom to ISIS, would be (and should be) entitled to a duress defense. If they paid the ransom to ISIS, they would be providing material support to ISIS only by virtue of the threat against their son, which they cannot reasonably be expected to ignore. The government position is that paying ransom endangers future US citizens who would be captured for ransom by a terrorist organization incentivized to repeat the strategy. This seems factually true, though this point is irrelevant: duress as an excuse applies even if the outcome produced by the defendant is worse. Duress is not a lesser-evils defense. Finally, even if it were relevant, the future lives endangered by paying a ransom are speculative and hypothetical, rather than actual and manifest.

As a final point, necessity is often excluded as a defense if the statutory provision embodies a specific legislative choice or policy to criminalize the decision made by the defendant. However, that exclusion does not apply to excuses such as duress. And even in the context of necessity, there is no evidence that Congress had in mind the specific situation of paying ransom to terrorists. If, in the future, Congress passes a specific statute outlawing the paying of ransom to terrorists by private citizens, then the exclusion would be relevant.

Consequently, the Foleys are entitled to the duress defense, and that seems like the right result. And it also helps to explain the popular outrage over the FBI’s heavy-handed techniques against the Foley family. For the FBI agents to suggest to the Foleys that they would be prosecuted for paying the ransom was not only tone deaf–but it also indicates that the FBI agents did not understand the law of duress.

The UN Security Council Takes up Ebola

by Kristen Boon

Today, the UN Security Council held an open debate on the ebola outbreak in Africa, and unanimously adopted Security Council Resolution 2177.   Background on the US sponsored resolution is available here.

The Council’s decision to take up the issue of Ebola is significant for three reasons. First, the Council calls the Ebola outbreak a threat to international peace and security. In the preamble, the Resolution expressly states the Council is “determining that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security.”  Although the resolution was adopted under Chapter VI (apparently due to concerns from Russia), it indicates a broadening concept of what events might trigger the Council’s jurisdiction.    Security Council meetings on public health crises are rare, although two prior resolutions have been adopted on HIV/AIDS in 2000 and 2011 (S/RES/1308; S/RES/1983).

Second, the resolution contains a number of direct instructions to member states and private industry.   It “calls on” Member states to lift general travel and border restrictions, provide urgent resources and assistance, including deployable medical capabilities.  It also “calls on” airlines and shipping companies to maintain trade and transport links, reinforcing the Council’s increasing engagement with non-state actors.

Finally, the outbreak of Ebola is changing the UN’s approach to intervention in Liberia generally. Not only have plans to wind down UNMIL and UN sanctions been put on hold in light of the public health and social crisis, but the role of UNMIL is likely to evolve, with peacekeepers being called upon to provide logistical support to fight the epidemic.

This is a good step by the Security Council: it is demonstrating its relevance to a current and destabilizing threat with international ramifications, in a country that has been on the Council’s agenda for many years.

Will There Be a Scottish Precedent?

by Chris Borgen

Since Kosovo’s declaration of independence there has been talk about whether there is a “Kosovo precedent,” and, if so, just what does it mean. The International Court of Justice’s advisory opinion
captured the imaginations of national parties throughout Europe. For example, Aitor Estaban, a representative from Spain’s Basque Nationalist Party (PNV) said that “the main consequence is that Spain cannot keep saying that the international rules don’t allow for a split of the country for a new Basque independent country into the European Union. So I think that should be already over and that’s good news for us.” (See H. Jamar & M. K. Vigness, ‘Applying Kosovo: Looking to Russia, China, Spain, and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence’, 11 German Law Journal (2010) 8, 913, 925.)

Will we now add a “Scotland precedent”  as well as  a “Kosovo precedent?”  Today’s referendum in Scotland has been described as a bellwether or a “canary in the coalmine” signaling the future of nationalism within the European Union. There are currently twenty to twenty-five “significant” separatist movements across Europe. (See, Bruno Coppieters, ‘Secessionist Conflicts in Europe’, in D. H. Doyle (ed.), Secession as an International Phenomenon: From America’s Civil War to Contemporary Separatist Movements (2010), 237, 247.) Many writers seem to assume that as Scotland goes so does Catalonia, the Basque Countries, Padania, and any number of other parts of EU countries with their own national aspirations. But is this accurate? Would a “Yes” vote—or even just the fact that there is a vote—form some sort of “Scotland precedent?”

First, what do we mean by “precedent?” At times, commentators  use the word to mean, interchangeably, the strict legal sense of a legally binding decision and the looser political sense of a persuasive analogy that can be drawn from a similar case. What role may Scotland’s referendum have in regards to the nationalist movements elsewhere in the EU? Let us consider the number of legal and political factors at play in just one example: Catalonia.

At first blush, the situation in Catalonia may seem similar to that in Scotland. As a political entity, Catalonia has some similarities to Scotland (if slightly larger). As Bloomberg News explains:

Catalonia is a region in the northeast corner of the Iberian peninsula with about 7.5 million people compared with the 5.3 million who live in Scotland. Its 193 billion-euro economy is about the size of Finland’s and compares with the 150 billion-pound gross domestic product of Scotland.

Like Scotland, Catalonia has a distinct linguistic and national heritage. It has a special status within the Spanish state with greater autonomy and it has a population that has been seeking greater levels of independence, if not full separation and sovereignty. And the regional government of Catalonia has scheduled a referendum on independence for this coming November. For more on the history of Catalonia, see this.

Despite these similarities, most international lawyers could see quickly that a domestic referendum in the UK does not provide binding legal precedent for whether or not a domestic referendum in Spain would actually grant independence to Catalonia. Rather, the issue is one of political precedent: persuasive strength. In an argument supporting Catalonia’s referendum, Carles Boix and J.C. Major wrote in Foreign Affairs that, in their view:

International opinion tends to support this referendum, just as it has supported the one that will be held in Scotland this September or those that took place in Quebec a few years ago. Indeed, finding out where everyone stands would appear to be a necessary step to make an informed decision on how to proceed. And yet the Spanish government has not granted the Catalan authorities the power to conduct what would be a non-binding referendum — something that would be perfectly legal according to articles 92 and 150.2 of the Spanish constitution.

But even if one is to argue that Scotland’s referendum is persuasive authority, one first needs to consider whether the analogy is a good one. And, for that, we need to consider once again the legal and political situation. (more…)

Scottish Independence Insta-Symposium: “Devolution Max” and the Question of Referendum Questions

by Christopher K. Connolly

[Christopher K. Connolly is an Assistant United States Attorney, Southern District of New York.  This post is written solely in the author's personal capacity.  The views expressed in this post are the author's alone and cannot be attributed in any way to his employer or any branch of the U.S. Government.]

On September 7th, faced with new polls showing a surge in support for Scottish independence, the British government made a pledge to the people of Scotland: vote “No” in this Thursday’s referendum, thereby remaining within the United Kingdom, and more powers will be devolved to Scotland’s parliament.  According to the Chancellor of the Exchequer, George Osborne, if Scots reject independence, they will receive “[m]ore tax-raising powers, much greater fiscal autonomy . . . . More control over public expenditure, more control over welfare rates and a host of other changes.”

Osborne’s offer represents a new development in the run-up to the referendum–one that Scottish National Party (SNP) leader Alex Salmond quickly dismissed as a “panicky measure” brought on by the increased momentum of the pro-independence campaign.  But it’s hardly a new concept.  In essence, the British government is offering some form of “devolution max”–the term typically used to describe scenarios in which Scotland would obtain virtually complete internal autonomy (in particular, robust economic and fiscal powers) while remaining part of the United Kingdom for external purposes such as defense and foreign affairs.  The SNP recognized devolution max as an option for Scotland’s political future (albeit not the SNP’s preferred option) in a 2009 White Paper, and the party’s initial proposals for the upcoming referendum envisioned a ballot containing two questions, the first addressing independence and the second gauging support for devolution max.

But British prime minister David Cameron, confident in his government’s ability to win the referendum and wary of handing Salmond a “consolation prize” in the form of enhanced autonomy, rejected the idea of including two questions and instead insisted on an “up-or-down” vote on independence.  In the Edinburgh Agreement reached in October 2012, which laid the ground rules for the referendum process, the Scottish government agreed to a one-question referendum ballot in exchange for other concessions from Westminster.  Thus, when Scottish voters go to the polls on September 18th, they will be asked a single, straightforward question: “Should Scotland be an independent country?  Yes/No.”

Although the British government’s push for a single referendum question was prompted in large part by political considerations, it also comports with guidance concerning the phrasing of referendum questions provided by legal opinions and state practice.  In its 1975 Western Sahara advisory opinion, the International Court of Justice (ICJ) recognized the general principle that “the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned” (para. 55).  The Canadian Supreme Court expanded on this concept in its 1998 Quebec Secession Reference.  There, although the court found that Quebec did not possess a unilateral right to secede under either domestic or international law, it nonetheless concluded that “a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other [Canadian provinces] would have to recognize” (para. 150).  In other words, the democratically expressed will of the people of Quebec to secede would oblige the rump Canadian state to engage with Quebec in negotiations concerning possible separation.  The court emphasized, however, that “[t]he referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves” (para. 87).

The Canadian Supreme Court’s opinion was followed in 2000 by the Clarity Act, which gave teeth to the court’s view of the need for a clear and unambiguous referendum question.  Among other things, the Act obliges Canada to negotiate with Quebec over the terms of a possible separation only following a referendum that sets forth an unambiguous choice between either full separation or continued inclusion in the Canadian state.  Accordingly, the Act prohibits any “referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada” (art. 1, para. 4(b)).

The Quebec Secession Reference and the Clarity Act must be understood against the backdrop of Quebec’s 1980 and 1995 referendums on independence.  The questions posed in those referendums were far from clear.  For example, the 1995 referendum question (the shorter of the two) read: “Do you agree that Quebec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the Bill Respecting the Future of Quebec, and of the agreement signed on June 12, 1995?”  Moreover, the ultimate issue of independence was to a certain extent obscured by debates over “sovereignty-association,” a proposal often made by Quebecois nationalists under which Quebec, though nominally independent, would retain some form of political and economic partnership with the rest of Canada.  The Canadian government sought to ensure that any subsequent referendum would avoid these pitfalls.

Judged by these standards, the Scottish referendum question could not be more clear and straightforward.  Indeed, in language reminiscent of the ICJ and Canadian Supreme Court opinions, the Edinburgh Agreement asserts that the referendum will “deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.”  But there is room to question whether the simple, single question will best capture the political preferences of the Scottish electorate.  Polls have often shown that many, if not most, Scottish voters prefer neither the status quo nor outright independence–they would support devolution max if that were an option in the referendum.  The British government’s recent pledge to provide Scotland with greater autonomy appears to recognize this sentiment by attempting to turn a “No” vote into a vote for devolution max.  But will it be too little, too late for those who want Scotland to remain within the United Kingdom?  And given the question presented to them, which makes no mention of the possibility of further devolution, are Scottish voters being provided with a clear sense what voting “No” might entail?

Undoubtedly, referendum questions must be framed with clarity to ensure that voters understand the choice that is being presented to them.  But notwithstanding the lessons from Quebec, the Scottish situation raises the question of whether that choice should always be limited to either outright independence or continued inclusion in the state.  A clearly-worded second question concerning devolution max might have captured the wishes of many Scottish voters.  As I’ve argued elsewhere, “the increased autonomy envisioned by that proposal might have been sufficient to satisfy many Scottish nationalists.  By taking the option off the table and making the referendum an all-or-nothing affair, the British government is running the risk that many Scottish voters might instead opt for independence” (p. 102).  David Cameron’s single question, though admirably clear and unambiguous, has started to look like a political gamble.  It remains to be seen whether it will pay off.

ASIL Names New Executive Director: Mark Agrast

by Duncan Hollis

Those readers who are members of the American Society of International Law know how critical the role of its Executive Director is and how great a job the previous director, Betsy Andersen did since taking on the role in 2006.  Betsy left ASIL earlier this year to run the ABA’s Rule of Law Initiative, and my former colleague from the State Department, Ron Bettauer, has been serving as an Interim Director for the last several months.  Today, I’m pleased to report ASIL announced the hiring of its newest Executive Director, Mark Agrast.  Here’s the highlights from ASIL’s news release:

The American Society of International Law (ASIL) announces the appointment of Mark D. Agrast to serve as the Society’s eighth executive director beginning October 20, 2014 . . . Agrast, who is an ASIL member, currently serves as deputy assistant attorney general in the U.S. Department of Justice’s Office of Legislative Affairs, where he has worked since 2009. . . Prior to joining the Justice Department, Agrast was a senior vice president and senior fellow at the Center for American Progress from 2003 to 2009, and from 1992 to 2003 he held senior staff positions with two members of the U.S. House of Representatives.  Agrast previously practiced international law with the Washington office of Jones Day.  He also has served in numerous leadership capacities in the ABA, including as a member of its Board of Governors and its Executive Committee, a past chair of the Section of Individual Rights and Responsibilities and the Commission on Immigration, and current chair of the Commission on Disability Rights.  He is a longtime member of the ABA’s House of Delegates.  Agrast has co-chaired the National Lesbian and Gay Law Association (now the National LGBT Bar) and served as that organization’s ABA Delegate.  He has also been a leader of the World Justice Project since its inception and has played a central role in designing and implementing its Rule of Law Index, a quantitative assessment measure of the extent to which countries adhere to the rule of Law.  Agrast graduated summa cum laude from Case Western Reserve University, pursued his postgraduate studies as a Rhodes Scholar at the University of Oxford, and received his J.D. in 1985 from Yale Law School, where he was editor in chief of the Yale Journal of International Law. 

 

Looks Like AUMF Basis for ISIL Operation Will Stick

by Peter Spiro

After a flurry of commentary in the wake of Obama’s speech last week and the on-background legal justification that came with it, the silence has been deafening. The immediate reaction to the AUMF hook for the ISIL operation was something approaching disbelief. It came out of the blue and everyone felt blindsided.

But it is attracting some support. Marty Lederman offers a qualified defense here. Cass Sunstein is all in, so by definition it is a credible legal argument. In the New York Times, the ed board and Bruce Ackerman predictably condemn the justification. But the level of agitation among policy elites seems low, on par with responses to past presidential uses of force. There is a lot of chatter on the Hill, but the prospects for affirmative legislation to authorize or limit (or for that matter prohibit) the ISIL operation are slim. There is no groundswell of opposition from the public.

In other words, this one is going to stick. There will be no serious challenge to the Administration’s legal argument that the President has the authority to undertake the operation. From the Administration’s perspective, the AUMF basis has the advantage of turning off the War Powers Resolution’s 60-day clock. It may also look less confrontational to use a statutory justification (even if it is a stretch) than a constitutional one. It fits more comfortably into the Administration’s narrative of interbranch cooperation.

But it may not matter that the Administration grounds its argument in the AUMF and not in its independent constitutional powers under article II and historical practice. The bottom line is the same. The test: how will future presidents put the episode to work? On the one hand, to the extent that it’s just about applying a particular statute to particular circumstances, it might be seen as limited to the facts, good for this day and train only.

On the other hand, one could imagine it being deployed in support of an article II argument, especially to the extent the statutory basis for the operation looks thin in historical perspective. The informality of the justification would make it more pliable. (Will we get the full legal work-out on this from OLC? Maybe not.) If I were an OLC lawyer looking to justify some future military operation on presidential authority alone, it would look like a precedent to me.

The Administration’s strategy on the WPR clock in the Libya context had the same features and may have the same kind of legacy. The “hostilities” argument was thin as an exercise in statutory interpretation, but it was less confrontational than a constitutional claim (minimalism goes to war). The legacy there won’t just be about what qualifies as “hostilities” for WPR purposes. It is as much about the efficacy of the 60-day clock. The Libya episode doesn’t undermine claims that the WPR is unconstitutional. It might even support those claims, at least indirectly (especially as coupled with the Clinton Administration’s similarly thin defense against application of the 60-day clock in the Kosovo case).

So ultimately it may not matter too much which card the Administration played in asserting authority for the ISIL operation. As in the past, a president failed to secure specific, contemporaneous authorization for a limited use of force, and nobody really pushed back.

Scottish Independence Insta-Symposium: International Law Should Matter–Thoughts on the Proposed Scottish Secession

by Milena Sterio

[Milena Sterio is The Charles R. Emrick Jr. - Calfee Halter & Griswold Professor of Law and the Associate Dean for Faculty Enrichment at the Cleveland-Marshall College of Law.]

As many readers may already know, Scotland may soon become an independent nation.  Scots will vote in a September 18 referendum whether to secede from Great Britain.  The exact question that they will answer, in a yay or nay vote, is “Should Scotland be in independent country?” This post will analyze the legality of such proposed secession under international law, and will argue that international law should matter in secessionist disputes, and that international law could develop a norm containing a positive right to secession under certain circumstances.

First, any proposed secession can be analyzed from both a domestic as well as an international lens.  From a domestic perspective, the relevant question for any proposed secession is whether domestic law authorizes it.  In other words, does a domestic constitution or other kind of statute envision the possibility that one portion of a state will separate out to form a new state or join a third existing state. In the Scottish context, domestic law does allow for the possibility of secession – although the United Kingdom (UK) has no written constitution, the referendum is being held with the consent of the UK government, which, although it prefers if Scotland remained a part of the larger UK, has agreed to respect the results of the referendum.  Arguably, if the proposed secession is legal domestically, then international law does not matter, and the question of legality of the proposed secession from an international point of view may never be asked.  However, international law as a body of law governing inter-state relations should matter, because international law may be called upon in order to reserve an inter-state dispute over a secessionist issue.  Moreover, multiple international treaties and other rules exist on the subject-matter of statehood, state formation, and self-determination, which are all related to secession and may need to be analyzed in order to resolve a secessionist claim.  Finally, international law contains norms relating to the respect of any state’s territorial integrity; it seems logical that international law should be consulted at times when such territorial integrity may be at risk of being disrupted, through the process of secession.

This leads me to my second point, which is that international law when examined post-Kosovo may be analyzed as tolerating a limited right of secession.  Most scholars would agree that while peoples have a right to self-determination under international law, such a right does not lead to a positive right to secession. First, the right to self-determination had been interpreted for decades as only applicable in the decolonization context.  Second, the right to self-determination in most instances authorizes a people to exercise its right to internal self-determination, which is typically reflected in a right to form a regional government and/or have other cultural, linguistic, and religious rights respected by the mother state.  The right to self-determination, outside of the decolonization context, may lead to the secessionist type of external self-determination only in extreme instances where the mother state chooses to completely disrespect the people’s right to internal self-determination.   According to the Canadian Supreme Court in the Quebec case, scholars had argued that “when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession….” The Canadian Supreme Court went on to conclude that in the Quebec case, it was unnecessary to discuss this issue because the Quebecois rights to internal self-determination had been consistently respected by Canada. However, the Court’s acknowledgement of this possibility of secession, outside of the decolonization context and authorized by international law is meaningful and important, as it points to a growing discussion about the usefulness of developing a positive international law framework on secession

Additionally, recent events and state practice may contribute to a re-shaping of international law on secession.  All readers will remember that in 2008 the Kosovar Parliament unilaterally declared independence from Serbia.  Kosovo was recognized as a new state by multiple countries immediately, and was effectively able to secede from Serbia.  Can a new rule of international law on secession be derived from the Kosovo precedent? Possibly. While no new international law norms have been proclaimed either by treaty or customary law, and while the International Court of Justice has refused to seriously consider the issue of Kosovar secession, nobody can ignore the Kosovo “precedent.”  Several secessionist groups around the planet have already relied on Kosovo in order to legitimize their own secessionist quests.  The Crimean referendum has been compared to the case of Kosovo; secessionist governments of South Ossetia and Akbhazia have invoked the Kosovo precedent; so have various leaders of the Transylvanian, Transnitrian and Quebecois secessionist movements.  Importantly, most governments battling secessionist movements within their borders have refused to recognize Kosovo, such as Spain, Israel and Greece.  And international law scholars have grappled with the legality of the Kosovar secession.  All of this leads me to my third and final point.  It appears that states care deeply about secession, that states often rely on international law in order to (de)legitimize secessionist quests, and that recent state practice, post-Kosovo, may highlight the need to at least discuss the development of a positive right of secession under international law.

My third and final point is that while international law lacks positive norms on secession, a normative framework on secession would be extremely beneficial in evaluating future secessionist claims, in situations where domestic law is silent on secession (as many domestic laws are, for obvious reasons) and where internal warfare is on the brink of erupting or has already erupted.  Most secessionist movements are about territory, as Lea Brilmayer famously wrote several decades ago.  Secession and territoriality go hand in hand, and international law could and should develop to reconcile these two seemingly contradictory norms.  In the context of the proposed Scottish secession, this may not matter as much, because, as argued above, domestic law already provides for this possibility and because warfare is not likely any time soon.  However, in other Kosovo-like situations, international law could serve as a powerful conflict-resolution tool in reconciling the secessionist people’s quest for an independent state (read: territory) with the mother state’s desire to maintain its territorial integrity.  Some potential factors that an international law framework for secession could use include the examination of territorial history and sovereignty over the dispute region, as well as of the historical immediacy of the territorial claim asserted by the secessionist group, an assessment of the disputed territory’s ethnic composition, an evaluation of the mother state’s responsiveness to the secessionist group’s claims to autonomy, and an overall assessment of regional stability and security.  Because any secession destabilizes the territorial integrity of at least one state, leads toward the creation of a new state, and in all likelihood disturbs regional security, it seems fitting that secession should be an issue of international law.