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Taiwan’s Constitutional Court Rules in Favor of Same-Sex Marriage, and Cites U.S. Supreme Court (But Not For Law)

by Julian Ku

Grand Justices of the Constitutional Court, Judiciary Yuan, Republic of China – Taiwan

In a first for Asia, Taiwan’s Constitutional Court ruled today (with two dissents) that Taiwanese law limiting marriage to a man and a woman violated the Republic of China’s constitutional guarantee of “equality before the law.” (Taiwan is home to the exiled Republic of China government, and its constitution is an amended version of one adopted on Mainland China back in 1946).
I don’t claim to be an expert on the Taiwan-ROC Constitution.*  I also haven’t read the decision very carefully, and do not purport to offer any deep analysis of the decision here.  But to build off Anthea’s great post from Monday, I will note that the decision (in Chinese here)  cites the U.S. Supreme Court’s decision in Obergefell v. Hodges.**  But it doesn’t cite Obergefell’s legal analysis on the relationship between same-sex marriage and equality, which actually is quite on point.  Rather, the Taiwan court cites Obergefell in footnote 1 as one of several sources for the proposition that sexual orientation is an immutable characteristic. (In a somewhat ironic note, the decision also cite findings of the World Health Organization, whose governing body just recently excluded Taiwan from participating as an observer).

I think there are many good reasons to cite, or not cite, foreign court decisions when interpreting a domestic constitution. I can see the Taiwan-ROC Constitutional Court, which is still a relatively new institution, wanting to cite foreign authority to bolster the legitimacy of its decision.  But I can also see that the Court would want to make this decision as domestic as possible to ward off the very substantial domestic criticisms that are already being made of the results of this decision.  The Taiwan-ROC Court made a reasonable choice to cite the U.S. Supreme Court in a limited and non-legal way.  I don’t fault it (or the U.S. Supreme Court) for avoiding foreign and international legal authority.  No doubt there was a jurisprudential influence from the U.S. and other jurisdictions in this decision, but I wonder if it was in any way decisive.

There are, of course, international relations implications from this decision.  Taiwan, under the current sort-of-anti-China governing party, is carving an international image for itself as a socially progressive haven in a relatively socially conservative Asia.  This can’t hurt Taiwan as it continues to seek ways to maintain its separate identity from China in the eyes of U.S. and European elites. The mainland has a similar “equality before the law” provision in Article 33 of its Constitution as the one that is the main basis for the Taiwan court decision, but I wouldn’t count on any action on that front in the near future.

*But I did have noodles in Taipei with a member of the Taiwan Constitutional Court not two weeks ago and he gave me no clues about this pending decision.

**My original post actually got this wrong, claiming there was no citation at all. Sorry for the confusion. But my larger point stands.

Strangely Enough, President Trump Can Use His Executive Power Over Immigration to Advance Human Rights and Battle Corruption

by Julian Ku

statue-of-liberty-1210001__340The legal battle over President Trump’s recent executive order has cast a spotlight on the president’s broad and potentially abusive powers over U.S. immigration laws.  But it is worth remembering that this power can be used in many different ways, including in ways that the President’s critics would support.  This past December, Congress delegated to the president broad discretionary powers to use his executive power over immigration to protect international human rights and to battle against corruption. These powers could advance the protection of human rights far more effectively than any Alien Tort Statute lawsuit.  But a successful use of this new law would require President Trump and his critics to work together. And this prospect seems awfully hard to imagine right now.

Enacted as part of the FY 2017 National Defense Authorization Act and modeled on a similar law targeting Russia only,  the “Global Magnitsky Human Rights Accountability Act” delegates to the President broad powers to impose targeted sanctions on foreign persons who commit or materially assist the commission of “gross violations of internationally recognized human rights” or “acts of significant corruption.”  In particular, the President is authorized to deny or revoke visas to foreign “persons”, or simply deny them entry.  A foreign “person” is specifically defined to include dual nationals.  (The exercise of this power might sound familiar to those of us still wrestling with the impact of last week’s immigration order.)

The Global Magnitsky Act goes farther than visa denial, however, and also authorizes the President to block “all transactions in property” of a foreign person that are in the United States or are in the possession of a U.S. person.   “Blocking” means that the property is frozen so that the owner cannot exercise any power or control over it despite still retaining title.

In order to impose such sanctions, the President simply needs to determine, based on “credible evidence,” that a foreign person either is “responsible” for a “gross violation[]” of internationally recognized human rights or acted as an agent for that person.  The same “credible evidence” standard applies to sanctions for corruption, or “materially assisting” corruption.

Taken together, it is hard to read this law as anything other than a grant of highly discretionary or possibly unreviewable power for the President to block the entry and/or freeze the assets of any foreign national he thinks is connected to human rights violations or corruption.  It might be unreviewable because courts are hesitant to review presidential exercises of a delegated power to impose sanctions, and even if it did, it would be nearly impossible for a court to find the lack of “credible evidence”.

Thus, President Trump has a new sweeping, possibly unreviewable power to deny entry into the U.S. and/or freeze the property of foreign nationals on the basis of human rights violations or corruption.  Previously, the President would have had to invoke a “national emergency” under the International Emergency Economic Powers Act to impose such sanctions, and violations of human rights were not specifically authorized as the basis for imposing such sanctions.  The Global Magnitsky Act thus hands President Trump a pretty powerful tool to support and advance the cause of international human rights.   Will he use it?

It is hard to predict anything for certain about our new president, but the statute does build in some mild procedural encouragements for him to use this new power.  For instance, the President must issue a report to four congressional committees (Senate Banking, Senate Foreign Affairs, House Finance, and House Foreign Affairs) reporting on sanctions he has imposed within 120 days of the law’s enactment (April 7, 2017).  Moreover, the President must also respond within 120 days to any request by the chair and ranking member of one of the congressional committees to impose human rights sanctions.  If the chair and ranking member of one of the House committees and one of the Senate committees sends him a request to impose corruption related sanctions, he must also respond within 120 days.  The Assistant Secretary of State for Democracy, Human Rights, and Labor is authorized to submit the names of possible sanctions targets to the Secretary of State for review. Moreover, nothing in the statute prevents the President from acting on his own.  Human rights NGOs, many of whom are the Trump administration’s fiercest critics, could also submit lists if they choose.

Even if President Trump uses this power, will it have any effect? How many “gross violators” of human rights or corrupt foreign government officials want to enter the U.S. or have property or assets here?  It is hard to say for sure, but the number is probably more than zero.  It might even be a lot more than zero.  In any event, it is also worth noting that the sanctions imposed by the Global Magnitsky Act are almost as severe as any judgment that could be collected in a lawsuit brought under the Alien Tort Statute.  Will petitioning the White House to impose sanctions replace ATS lawsuits?  Probably not, but if used aggressively, the Global Magnitsky Act would have a much greater impact in support of international human rights than any five ATS lawsuits put together.

It is still too early to tell how this law will work in practice.  But human rights and anti-corruption NGOs should be dusting off their political lobbying skills and start approaching the State Department and the chairs and ranking members of the relevant congressional committees with names. Since Maryland Senator Ben Cardin sponsored the Global Magnitsky Act and is the ranking member of the Foreign Affairs Committee, I bet he would be more than happy to submit some names to President Trump.    Such lobbying is a lot easier than filing an ATS lawsuit, and has a much higher chance of having a real impact.   But it will also mean petitioning an unpopular president to exercise his much vilified executive powers on their behalf. Will a future photo from the Oval Office depict President Trump signing a Magnitsky Act executive order while officials from Amnesty International and Human Rights Watch stand beside him to applaud him?  As I said, this is awfully  hard to imagine today, but stranger things have happened.

Panel on Travel Ban & Immigration Orders

by Kristen Boon

Seton Hall Law School (where I am a professor) organized an excellent panel on the travel ban and immigration restrictions last Thursday, Feb 2.    For those who wish to learn more about the legal effects of the executive order, I encourage you to watch it here.

You will see presentations by Professors Lori Nessel, Ed Hartnett and Jonathan Hafetz discussing the immigration orders, their constitutionality, and possible challenges to those orders.  The panel was moderated by Professor Jenny-Brooke Condon.

This is a fast moving issue – please note this panel predated multiple developments and decisions by judges in several jurisdictions over the weekend, which considered the constitutionality of the travel ban.

To stay current, you can access all briefs and decisions at this link, which has been setup by the Civil Rights Litigation Clearinghouse at the University of Michigan Law School.

Dear Mr President: 40% of Zero is Zero

by Kevin Jon Heller

Kill me:

Funding will be taken away from any organisation that is “controlled or substantially influenced by any state that sponsors terrorism” or is behind the persecution of marginalised groups or systematic violation of human rights.

The order has singled out peacekeeping, the International Criminal Court and the United Nations Population Fund. The UNPFA targets violence against women, fights to keeps childbirth and abortion, where it is legal, safe, and was a key presence in safeguarding women in Haiti following Hurricane Matthew.

The order demands decreasing US funding towards international organisations by at least 40 per cent. Mr Trump has included the International Criminal Court here, yet the US currently pays nothing to the ICC.

When asked why he wants to reduce funding to an organisation the US doesn’t fund, President Trump reportedly responded, “the Prosecutor, Frederick Douglass, is a rabble-rouser.”

Event: Australia, Refugees, and International Criminal Law (February 13)

by Kevin Jon Heller

I want to call readers’ attention to what should be — despite my participation — a fantastic event at City Law School the week after next. Here is the info:

City, University of London: The Refugee Crisis and International Criminal Law: Are Australian Agents and Corporate Actors Committing Crimes Against Humanity?

City Law School invites you to a panel discussion of international criminal law aspects of the refugee crisis, with a focus on the Australian detention facilities. The discussion will follow the announcement and launch of a new major initiative by the Stanford International Human Rights Clinic and the Global Legal Action Network (GLAN).

Refugees and asylum seekers are currently under attack in many developed countries, including in European states, the US, and Australia. International criminal law has developed around the need for international institutions to intervene on behalf of the most vulnerable populations, when states are unwilling or unable to do so. Can international criminal prosecution help counter the current encroachment upon refugee rights? Currently, the most flagrant examples of such encroachment are Australian practices, which have also served as a model for migration restrictionists around the world. Our focus will be on the treatment of refugees in Nauru and Manus Island by Australian officials and agents, including corporate actors. At issue, however, are not only legal questions. As important are contemporary political conditions, in which the international criminal court is under sustained critique for a seeming bias against African leaders; and in which Western governments and populist movements are proposing new policies that violate refugee rights. Does the concept of Crimes against Humanity accurately capture the conditions of detention and practices of mass deportations? And, if there are international crimes committed, are these grave enough for the International Criminal Court to investigate? Can and should International Criminal Law shift its focus from instances of spectacular or radical evil to the normalised and ‘banal’ violence waged by Western states as a consequence of the structures of global inequality?

Speakers: Ms Diala Shamas, Supervising Attorney and Lecturer, Stanford Law School International Human Rights and Conflict Resolution Clinic; Dr Cathryn Costello, Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, fellow of St Antony’s College, University of Oxford; Professor Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London; Dr Ioannis KalpouzosLecturer in Law, City Law School, City, University of London; Legal Action Committee, Global Legal Action Network; Dr Itamar Mann, Senior Lecturer in Law, University of Haifa; Legal Action Committee, Global Legal Action Network; Ms Anna Shea, Researcher and Legal Advisor, Refugee and Migrant Rights, Amnesty International.

The event takes place on Monday 13 February 2017 at 18:00 at City, University of London, College Building, St John Street, EC1V 4PB – Room AG21. The event will be followed by a wine reception. Attendance is free. You may sign up here.

Hope to see some OJ readers there!

The Important Role of International Law in Legal Challenges to Trump’s Anti-Refugee Order

by Jonathan Hafetz

[Jonathan Hafetz is Professor of Law at Seton Hall University School of Law.]

President Trump’s recent executive order temporarily barring the entry of refugees and others has provoked widespread protests, inflicted unnecessary suffering, and undermined the United States’ reputation across the world.  Several district judges have temporarily blocked its enforcement, at minimum preserving the status quo (by halting the removal of individuals who had traveled to the United States) until the legal challenges can be resolved.  The most recent ruling, issued by a federal judge in Los Angeles, went as far as to enjoin the federal government from denying entry into the United States to holders of valid immigrant visas from countries covered by Trump’s order.  I believe Trump’s order violates the U.S. Constitution, as I’ve briefly described here and Adam Cox has discussed at length here.  It also transgresses international law.  And while the international law violations may not alone trigger the order’s invalidation by a federal judges, they strengthen the domestic law challenges—statutory and constitutional—to the order.

Trump’s order suspends entry of all refugees to the United States for 120 days, bars Syrian refugees indefinitely, and blocks entry into the United States for 90 days of citizens from seven predominantly Muslim countries.  The Trump administration (via Department of Homeland Secretary John Kelly) subsequently sought to clarify that legal permanent residents (LPRs) from those seven countries were not categorically banned but would instead be issued waivers on a case-by-case basis. A more recent White House “clarification” states that the order will not apply to any LPRs. How much weight judges will accord these post hoc damage control efforts is another question, particularly given the continuing evidence of the order’s arbitrary enforcement and Trump’s own proven disregard for facts and for the truth.  Further, this clarification does not address claims by non-LPRs.

The order contravenes the 1951 Refugee Convention and 1967 Protocol by discriminating among refugees based on religion and country of origin.  The ban also violates applicable human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which prohibits non-discrimination across a broad range of state action, including entry decisions, and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which bars racial and religious discrimination in immigration decisions.  (See Jay Shooster’s excellent post here). Further, as Shooster notes, both the ICCPR and CERD prohibit laws with discriminatory effects and thus do not require proof of intent (although there is ample evidence of discriminatory intent behind Trump’s executive order, as noted below).  For example, a 2004 decision by the UN Human Rights Committee interprets the ICCPR’s anti-discrimination prohibition to encompasses action that has an “exclusive and disproportionate effect on a certain category of persons.”

The federal court rulings thus far show Trump’s order is vulnerable to anti-discrimination challenges based on national origin and religion.  The Trump administration’s claim that the order is not directed at Muslims is undercut by Trump’s repeated statements openly expressing disfavor of Muslims.  Indeed, in signing the order, Trump vowed to “keep radical Islamic terrorists out of the United States.”  And Rudy Giuliani stated that Trump wanted a “Muslim ban” and asked him to assemble a commission to show him “the right way to do it legally.”

Because the relevant treaties are non-self-executing, their bite in litigation over the executive order will be in their interaction with domestic law.  One statutory argument some petitioners will advance is that the executive order violates section 202(a) of the Immigration and Nationality Act (INA).  Enacted in 1965—and motivated by a long history of discrimination in immigration law—this provision bars discrimination in “the issuance of an immigrant visa” based, inter alia, on nationality, place of birth, or place of residence.  International law bolsters claims that section 202(a) should be interpreted to prohibit the type of national origin discrimination imposed by Trump’s order against those seeking permanent residence status.

The Trump administration is relying heavily on section 212(f) of the INA, which allows the president to suspend entry of any class of aliens where it would be “detrimental to the interests of the United States.”  But, although broad, this grant of authority should prove vulnerable where, as James C. Hathaway notes, there is no “serious data linking refugees to a terrorist threat” and where the evidence instead points to religious animus as the motivating factor.  Here again, non-discrimination provisions under international law will reinforce construction of federal law against the order’s validity.

International law also supports constitutional challenges, particularly the claim that removal without judicial review violates the Due Process Clause of the Fifth Amendment.  Under the Refugee Convention and international human rights law, individuals have a right apply for asylum, cannot be removed to a country where they face a risk of torture or persecution, and are entitled to a determination on their claims.   Federal law implements these non-refoulement obligations by providing for individualized determinations and judicial review.  A categorical ban that denies those fleeing persecution the opportunity to seek relief and review—as required under international law and provided for by federal statute—violates due process.

While constitutional arguments will remain front and center, the order’s incompatibility with international law—not to mention with U.S. international interests—should magnify judicial skepticism about the expansive readings of the plenary power doctrine and executive authority that Trump will advance in defending the order.

Why You Shouldn’t Panic Over President Trump’s Draft Executive Orders on Funding for International Organizations

by Julian Ku

Because I am on sabbatical this semester, I have been lying low during these first few (very busy!) weeks of the Trump administration.  But I have noticed that the sheer volume of Trump administration actions, and reactions to its actions, is confusing both its supporters and its critics.  While Trump has already taken actions that are worthy of severe criticism (see, e.g., his much-maligned immigration executive order), some of his other proposed actions are being overblown as further threats to the Republic.  This type of overstatement and mischaracterization is as damaging to Trump’s critics as they are to the Trump administration itself.

For instance, two draft Trump executive orders on international organizations and multilateral treaties leaked late last week causing a flurry of instant condemnation on social media and elsewhere.  The initial reports about these orders, especially on twitter and in headlines, suggested that Trump would by executive order “to dramatically reduce funding of United Nations.”  New York Magazine’s summary of the draft order is particularly sensational:

….Donald Trump is preparing to decimate this tool of American hegemony [the U.N.] — and global peacekeeping and poverty reduction — with a stroke of his pen.

The Trump administration has drafted an executive order that would radically reduce American funding of the U.N. and other international organizations. The order would terminate all U.S. funding to any international body that meets any one of a long list of criteria. Among other things, the order would bar American funding of any organization that gives full membership to the Palestinian Authority or Palestine Liberation Organization, supports programs that fund abortion, or that is “controlled or substantially influenced by any state that sponsors terrorism.” (Emphasis added).

The problem with this summary is that it is totally inaccurate.  The actual draft executive order simply forms a committee to study and provide recommendations on whether and how to cut U.S. funding to the U.N. and other international organizations.  The order does not “terminate” anything with “a stroke of a pen.” Its most aggressive section would simply require the Committee to “recommend appropriate strategies to cease funding” international agencies that grants membership to the Palestinian Authority or supports terrorism.  Funding for these agencies is already prohibited by U.S. statute, so this is really an order to think of ways to comply with U.S. law.  To be sure, the order takes a much harsher and negative view of funding international organizations than prior U.S. administrations, but the order is hardly the end of the United Nations as we know it.  This is especially true if we recall that Congress, and not the President, has the power to fund or not fund international organizations like the U.N..

The draft executive order on multilateral treaties is potentially more significant because the President has broad powers to withdraw from treaties.  But the order itself simply creates another committee to review U.S. participation in all multilateral treaties that the U.S. is negotiating, in the process of considering ratification, or already ratified and joined.  The committee is instructed to recommend whether the U.S. should continue negotiating, ratifying, or being part of those treaties.

The only unusual part of this process is to elevate treaty review to an interagency committee. But such a review process is reasonable for any new administration.  The only real action in the draft order is a moratorium on submitting new treaties to the President or the Senate absent a committee recommendation.  This might slow down the already slow treaty ratification process, but given the glacial pace of Senate consideration of most treaties, I doubt this “moratorium” will have much an effect.

There is plenty to criticize and even protest in the new Trump administration’s flurry of executive orders and statements.  But Trump’s critics need to carefully distinguish between what is truly troubling and what bears watching, and what is not really significant. Otherwise, they risk undermining their credibility and the effectiveness of their critiques.  These two draft executive orders bear watching as a signal of the new administration’s priorities.  But they are not a cause for panic.

So everyone take a step back, and read beyond the headlines or twitter summaries before reacting and overreacting.  There is and will be plenty to criticize in the new administration.  Save your ammunition for when it is truly needed.

The Draft Executive Order on Detention and Interrogation

by Deborah Pearlstein

It is early days, and much we don’t know – including, indeed, whether the draft Executive Order the new Administration is contemplating (as reported by the New York Times and Washington Post) is indeed an official document of the new Administration. For the time being, let me offer a few reasons why I’m worried, and reasons why I’m not (completely) (yet).

Why Worry

As reported, the draft order calls not only for considering the resumption of a CIA detention and interrogation program (discontinued under the Obama Administration), but also for reassessing existing directives for how law enforcement agencies should proceed following the arrest of a member of Al Qaeda (or associated forces) in determining the propriety of potential military custody (here’s current guidance); and for considering whether to reanimate detention operations at Guantanamo Bay, which has not received a new detainee since 2009. The draft order would revoke Executive Orders on these topics issued by the Obama Administration when it first took office and replace them with guidance that, among other things, pointedly does not make express the requirement that anyone in U.S. custody be treated consistent with the Geneva Conventions, the Convention Against Torture, or any other relevant treaty obligation the United States has undertaken; the draft order mandates only compliance with the domestic “laws of the United States.”

These are bad – disastrously bad – ideas, for reasons I and more importantly others (including a vast and bipartisan swath of our military and intelligence communities) spent much of the past 15 years establishing in detail. (Perhaps I’ll save a reiteration of the catalog of those reasons for another post.) Of particular concern at this stage, it did not take direct orders to troops to engage in torture across U.S. detention operations. Most of the detainee torture and abuse that happened in the years after 9/11 did not involve the waterboarding of “high value” terrorists. Most of the torture and abuse involved low-level troops and U.S. agents, holding low-level (or wholly innocent) detainees. The reasons for this were several – each important – but one of them was the administration’s equivocal relationship with the international legal regime on which training had long been based. (For a summary description recalling what happened and why at the wholesale level, see, e.g., this old piece of mind that seems unfortunately relevant again.) The Bush Administration’s public and private equivocation on its attention to these rules left, at the very least, a vacuum in guidance, into which vacuum rushed a series of directives that left little doubt that interrogators’ gloves, in any theater of operations, were meant to come off. Even if this administration does nothing else at all from this day forward on detention and interrogation issues, the draft order has already done some damage. Again.

Why Not Worry (Too Much) (Yet)

On the concerning topic of CIA detention, interrogation operations more broadly, and the future of Guantanamo Bay – mostly what the order does is require reconsideration of policies in place. It does not order the re-establishment of a global detention apparatus. Yet. In a functional administration, what would follow from this order is an interagency assessment of the value, including, among others, the Department of Defense and the CIA. Here’s when we get to test whether those internal executive branch checks so many of us have written about in recent years are really capable of slowing the train. There is some reason for optimism. Among others, Secretary of Defense Mattis is on record as an opponent of torture, a view he has (reports indicate) not hesitated to express to his new boss. And while incoming CIA Director Pompeo has expressed differing views in different contexts, there is little doubt members of the intelligence community below the director level retain an acute institutional memory of the personal and professional jeopardy they endured the last time a CIA Director asked them to “get chalk on their cleats” in pushing the line between lawful interrogation and abuse. It seems hard to imagine what more the new president could do to alienate those intelligence community professionals than he has done in the months since his election. Actually re-establishing the system of CIA detention and interrogation would require not only willing cooperation but personal courage of the people the President has compared to the Nazis. Even had that “chalk on their cleats” CIA Director not changed his mind (now agreeing, along with Obama’s former CIA Director, that CIA should never undertake waterboarding again), that is asking, as it were, a lot.

All outside the executive branch, there are checks against detainee torture and abuse now that did not exist in 2001. Some of them are critically important changes in U.S. domestic law since 2001 (Steve Vladeck notes some here), including limits on the kind of interrogation techniques that can be used by any U.S. agency against any detainee in U.S. custody. It would take an act of Congress to undo these laws, and it is not at all clear (I’d say unlikely) the administration could muster 50 votes to support the repeal in the Senate (where Republican Senator (and torture survivor) John McCain stands manifestly in opposition). It is especially less likely in light of the vastly more robust – and today, profoundly energized – domestic NGO community than existed in 2001. In 2001, a tiny handful of (underfunded) domestic NGOs had programs focused specifically on the human rights or civil liberties consequences of U.S. national security policy. Today, one can name a half-dozen such programs off the top of one’s head, all of which boast solid funding and a staff of deep knowledge and experience.

And then there are the allied nations that were essential to hosting the CIA’s secret global detention system the first time around, nations who unblinkingly rushed to our aid in both sympathy and self-interest after the 9/11 attacks. The new administration enjoys no such sympathy now. Indeed, several of the foreign states who aided the CIA in its efforts have faced their own domestic consequences for their role in facilitating U.S. efforts. (Here, for example, is the European Court of Human Rights decision concluding that Poland violated its human rights obligations for hosting a CIA black site in which two CIA prisoners who were waterboarded.) It is difficult to imagine they (or others having witnessed their experience) will be eager to volunteer their services again. Of course the new administration seems keen to make new and different friends.

A student asked me today where I was on a scale of concern to panic. The answer is much closer to the former at this stage than the latter. I’m counting on the constraints we’ve spent the past decade and a half reinforcing to get to work.

RIP, Sir Nigel Rodley

by Kevin Jon Heller

It is with great sadness that I report the passing of my friend and Doughty Street colleague Sir Nigel Rodley. Cribbing from the statement issued by the International Commission of Jurists, of which Nigel was President:

Elected President of the ICJ in 2012, he was serving his third term as such. He had been first elected to the Commission in 2003 and re-elected in 2008 and 2013. He served as a member of the Executive Committee from 2004-2006.

He was also a Council member of JUSTICE, the British Section of the International Commission of Jurists.

Professor Sir Nigel Rodley was a towering figure in the area of international human rights, playing many roles as an educator, as an academic, as an activist and as an advocate.

He established and expanded the first human rights law department at Amnesty International in the 1970s and 1980s, leading the organization’s work on the development and promotion on international legal standards.

He spent eight years, from 1993 to 2001, as the United Nations’ Special Rapporteur on Torture, visiting dozens of countries and working tenaciously toward the eradication of torture worldwide.

From 2001 to 2016 he served on the UN Human Rights Committee, including a period as it Chairman, where he often served as the intellectual author of the Committee’s most prominent accomplishments.

I’m sure many Opinio Juris readers knew Nigel, someone for whom the expression “towering figure” seems specifically invented. Although our paths had crossed both virtually and physically for a number of years, I did not get to know Nigel particularly well until we went to Beijing together a couple of years ago as part of a Chatham House project entitled “China and the Future of the International Legal Order.” I was fortunate enough to spend a great deal of time with Nigel during that trip, including flying back with him. (Nigel almost missed the trip because he left his wallet in our taxi.) After that, we were fast friends.

You would be hard pressed to find a kinder, more gracious person than Nigel. He will be sorely missed — by me and by anyone else who had the pleasure of knowing him.

Requiescat in pace, Sir Nigel.

Crisis in The Gambia: How Africa is Rewriting Jus ad Bellum

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]

Academic writing and political commentary on jus ad bellum are overwhelmingly focused on the policies, practices, and positons of major military powers. Countries such as the five Permanent Members of the UN Security Council, and regional pivotal states that have been belligerents in major armed conflicts, such as India and Pakistan, Iran and Iraq, Israel and its Arab neighbors, Turkey, Ethiopia, Indonesia, and a few others, have attracted the most attention in scholarship on the law governing the use of force by states. One region that has received lesser attention is Africa.

This is unfortunate because recent developments in Africa are challenging some of the cardinal principles of jus ad bellum. The unfolding crisis in The Gambia is one example. Adama Barrow, a real estate developer, defeated long-term incumbent Yahya Jammeh in the presidential election held on December 1st, 2016. Unexpectedly for an eccentric Gaddafi-like authoritarian leader, who vowed to rule The Gambia for a billion years and claimed the ability to cure AIDS and infertility, President Jammeh conceded defeat and promised a peaceful transfer of power. However, on December 9th, in an equally surprising volte-face, Jammeh declared that he was rejecting the election results citing what he called “serious and unacceptable abnormalities.”

President Jammeh’s power-grab was roundly condemned by the international community. In addition to the customary criticism and expressions of concern from international and regional organizations, a summit of the leaders of the Economic Community for West African States (ECOWAS) adopted a resolution on December 17th recognizing the results of the December 1st election, pledging to attend the inauguration of President-elect Barrow on January 19th, 2017, and deciding to take “all necessary measures to strictly enforce the results of the 1st December 2016 elections.” The phrase: “all necessary measures,” is universally recognized as international law-speak for the authorization of the use of force.

After mediation efforts failed, ECOWAS issued an ultimatum to President Jammeh: either relinquish power by midnight on January 19th, or ECOWAS will forcefully intervene to install President-elect Barrow. Signaling that it meant business, ECOWAS forces from Senegal and Nigeria were mobilized on the border with The Gambia, and warned that they will intervene if President Jammeh failed to comply with the organizations’ ultimatum. On December 21st, a statement by the President of the Security Council noted that the Council welcomed and was encouraged by the decisions of the ECOWAS summit. Similarly, the African Union Peace and Security Council endorsed the election results and announced that it would not recognize Jammeh as President of The Gambia after January 19th.

As the January 19th deadline elapsed, events kicked into high-gear. Adama Barrow was sworn into office in The Gambia’s Embassy in Dakar, Senegalese forces crossed into The Gambia to enforce the ECOWAS resolution of December 17th, apparently pursuant to a request by-now President Barrow, and the UN Security Council unanimously adopted Resolution 2337, its first for 2017. The resolution, tabled by Senegal, does not authorize the use of force by ECOWAS. Rather, acting under Chapter VI, the Council endorsed the decision of ECOWAS and the AU to recognize Adama Barrow as President, welcomed ECOWAS’ decisions of December 17th, and expressed support for ECOWAS’ commitment to “ensure, by political means first, the respect of the will of the people of The Gambia.” With ECOWAS troops already in his country, on Saturday January 21st President Jammeh left The Gambia, apparently after shipping a number of his luxury cars and pocketing $11 million from the treasury.

The situation in The Gambia and international reactions to the crisis challenge certain aspects of jus ad bellum. Because Opinio Juris readers are probably familiar with the basic contours of jus ad bellum, suffice it to say that the UN Charter establishes a blanket prohibition on both the threat and use of force by states. The Charter does, however, admit two exceptions to this general prohibition: force used in self-defense against an armed attack, and forceful action authorized by the Security Council under Chapter VII of the Charter.

If based on a request by President Barrow, the Senegalese-led ECOWAS intervention beginning on January 19th fits – albeit imperfectly – within the established rules of jus ad bellum. As the International Court of Justice (ICJ) confirmed in the Armed Activities on the Territory of the Congo Case, jus ad bellum permits governments to invite foreign states to militarily intervene on their own territory. In fact, previous ECOWAS interventions, such as in Sierra Leone and Liberia were justified on requests by the governments of those states. The potential trouble with ECOWAS’ ongoing intervention in The Gambia, however, is that it was undertaken pursuant to a request from what is essentially a government-in-exile. In fact, Adama Barrow probably does not even qualify as a government-in-exile, but rather, should be considered a president-in-exile. The right of a president-in-exile, who has never exercised governmental authority or effective control over the territory of the state, to authorize foreign armed intervention is, at best, questionable and unsupported by ample precedent. (See: Intervention by Invitation).

Moreover, the run-up to ECOWAS’ intervention in The Gambia also challenges the prohibition on the threat of the use of force. Ian Brownlie defines a threat of force as “an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.” Accordingly, the decision of the ECOWAS summit on December 17th, which demanded that President Jammeh relinquish power and authorized the use all necessary measures to enforce the election results, combined with the mobilization of ECOWAS forces in the weeks before January 19th, constitutes a threat of force. As the ICJ opined in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the test of the legality of threats of force is: “if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal.” The problem here is that enforcing election results or installing a democratically elected leader into office are not legitimate grounds for the use of force according to jus ad bellum. Despite attempts by a few governments and some scholars to advocate the so-called doctrine of pro-democratic intervention, which permits the resort to force to promote democratic government or prevent illegitimate takeovers of power, the overwhelming opinion is that this practice violates the UN Charter. Interestingly, however, the UN Security Council appears to have endorsed this threat of force by ECOWAS against President Jammeh. As aforementioned, the Presidential Statement of December 21st welcomed the actions of ECOWAS, and Resolution 2337, while falling short of authorizing the use of force and expressing its preference for the use of political means to settle the conflict, welcomed the decisions of the ECOWAS summit.

The chain of events and outcomes of a single conflict probably do not suffice to fundamentally alter rules as foundational to the international legal order as the prohibitions on the threat and use of force. The ongoing crisis in The Gambia does, however, pose some difficult legal questions and challenges certain aspects of jus ad bellum. Moreover, ECOWAS’ willingness and preparedness to threaten and use force to promote democracy is only one example of African practice that challenges the traditional rules of jus ad bellum. Another interesting development in Africa that has attracted limited academic attention (See here) is the ability of the African Union to authorize armed intervention to prevent genocide, war crimes, and crimes against humanity. This right, enshrined in Article 4(h) of the AU Constitutive Act, is essentially an African version of the Responsibility to Protect. What is notable, however, is that the African Union is not required to seek Security Council authorization before approving such an intervention. This directly challenges Article 52 of the Charter, which obliges regional arrangements to acquire Security Council authorization before engaging in enforcement action.

As Jeremy Levitt noted, “most policymakers, international lawyers, and legal academics outside of the continent consider African states to be objects rather than subjects of international law … The geopolitical, Eurocentric, and linear bias in Western legal academia, among others, is truly unfortunate.” Events in The Gambia and other developments in Africa suggest that African practice in jus ad bellum, and indeed in all fields of international law, deserves greater scholarly and policy attention.

GOP Wants the US to Leave the United Nations

by Kevin Jon Heller

Finally, a Republican bill we can all get behind! The American Sovereignty Restoration Act of 2017:

A bill was introduced to the House of Representatives in early January that, among other things, calls for the United States to withdraw from the United Nations. Sponsored by Senator Mike Rogers, the American Sovereignty Restoration Act (aka H.R. 193) had been previously introduced by the Alabama senator to no avail back in 2015 (then H.R. 1205), when he cited reasons ranging from spending waste to enabling an intercontinental “dictators’ club,” which sounds like a manuscript Ann M. Martin decided to leave in her desk drawer.

I believe in sovereignty — and in restoring it when it is lost. So I support the bill. And no more UN membership, of course, means no more permanent veto for the US. So no more holding peacekeeping missions hostage whenever the international community doesn’t let the US play by its own rules. No more US propping up its own preferred dictators while criticising the preferred dictators of others. No more US protecting Israel from the consequences of its actions. Sounds pretty good!

Does anyone know how to introduce similar bills in the Duma and the NPC? I hear Russia and China are suffering a sovereignty deficit, as well.

International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

by Simon Chesterman

[Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law. Educated in Melbourne, Beijing, Amsterdam, and Oxford, Simon’s teaching experience includes periods at Melbourne, Oxford, Columbia, Sciences Po, and New York University.]

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this joint Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1. Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian.

Professor Antony Anghie also makes an important point about power in his historical survey. The Asian states that fought for the New International Economic Order (NIEO), he argues, had a vision but no power; by contrast, the Asian states that have power today lack any comparable alternative vision. Professor B.S. Chimni similarly suggests that the lack of a regional organization in Asia may be attributed to the fact that no Asian state has had the combination of material capability and legitimacy necessary to lead the formation of such an entity.

These observations about power go beyond the standard challenge to international law of its claim to being “law”. They recall far older critiques of the rule of law even in its domestic context: that it reifies power relations and thus is naturally embraced by whoever benefits most from the system. (It does and it is.) Nevertheless, as even the Marxist historian E.P. Thompson recognized, the rule of law remains an “unqualified human good” for its ability, nonetheless, to impose effective inhibitions upon power and defend against power’s all-intrusive claims.

So it is, I would contend, at the international level. Smaller states (like Singapore) are naturally most enthusiastic about the rule of law, but even larger ones (like China) are progressively seeing that it is in their enlightened self-interest to embrace such a world order, much as the United States did following the conclusion of the Second World War — a moment when its relative power was, arguably, at its greatest.

2. History

Turning to history, Professor Anghie rightly notes the incompleteness of my account of the achievements and failures of Asian states in their efforts to engage with international law. I concede that I do not do this rich history justice — though blame surely lies also with EJIL’s word limit. Some of this deficiency will be remedied in a forthcoming Handbook of International Law in Asia and the Pacific that I am editing for Oxford University Press together with Judge Hisashi Owada and Professor Ben Saul (and to which Professor Anghie is contributing a chapter).

As Judge Jin-Hyun Paik emphasizes, that history continues. It would be a mistake, for example, to assume that Asian states’ attitudes towards international law are static. As he shows in his own survey of international adjudication, those attitudes are clearly evolving. From relative non-engagement with the Permanent Court of International Justice, the movement has been from infrequent respondents to occasional applicants before the International Court of Justice and other tribunals, with important recent instances of Asian states consenting to litigate sovereignty disputes. Though Asian states remain the least likely to accept compulsory jurisdiction or appear in international tribunals, he demonstrates that the willingness to do both is increasing.

3. Method

The article attempts to downplay any grand claims about “Asia” and “international law” that might be inferred from the title. Nevertheless, such work is intended to be examined for its method as well as its conclusions.

Professor Chimni rightly warns of the dangers of cultural essentialism, geographical determinism, and materialist reductionism. (He generously gives me a pass on a fourth pitfall of orientalism.) His point that Asian states’ economic interactions play an important role in constructing their world view is well taken. He also emphasizes that reluctance to sign onto a given international regime need not imply opposition to its objectives, giving the example of Asian states’ treatment of millions of refugees.

Professor Robert McCorquodale queries the use of “Asia” as a category, in particular the relative absence of the Pacific and the Middle East from my analysis. Judge Paik also stresses the diversity of Asia, highlighting in particular the relative openness of East Asia to international cooperation. These are fair observations and the attitudes of the various sub-regions of Asia would bear further study. (For my own views on Southeast Asia, see this recent work on ASEAN.) Professor McCorquodale also suggests that the role of non-state actors might be a fertile line of inquiry — particularly the role played by business entities, given the relative willingness of Asian states to accept binding agreements in the area of trade and investment.

At a more fundamental level, Judge Xue queries whether the premise of the article — that Asian states benefit most from a world ordered by law — is properly made out. Claiming that the economic success of Asian states is due to international law and institutions may be a bit “self-conscious of the discipline”. She is surely correct that internal as well as external factors were responsible, but I would still argue that international law was necessary if not sufficient for the prosperity and stability that Asia now enjoys.

4. Futures

Judge Xue concludes that, while Asia should not be expected to carry on the role of “rule-taker”, there is some way to go before it becomes a meaningful “rule-maker”. In particular, she questions my declinist account of the United States, writing that it “is and will continue to be the dominant Power in the region.” On the issue of whether international law will become more representative and more democratic, she proposes that this challenge needs to be directed at the West as much as at the East.

On this last point, Professor Benvenisti suggests that President-elect Trump (who takes office shortly after this post goes live), embraces a conservative view of international law that is consistent with the Five Principles embraced by China and India for half a century, recently reaffirmed in the joint declaration by Russia and China. I suspect he is correct, but President Trump has routinely contradicted previously articulated positions and I am wary of joining the ranks of those who predicted what he would do and failed.

Though it is often invoked, there is no Chinese curse that means: “May you live in interesting times”. Provenance notwithstanding, there is no doubt that the coming years will be interesting. It is my hope that my article and this symposium will encourage greater analysis of how power is shaped by law and vice-versa, how history influences the present, and how research can better prepare us for whatever the future may bring.

Thank you, once again, to the organizers of this symposium and to Judges Xue and Paik, and Professors Anghie, Benvenisti, Chimni, and McCorquodale for taking the time to offer their thoughtful and thought-provoking responses. This is clearly not the end of this conversation, or even the beginning of the end. But it is, perhaps, the end of the beginning.