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The UK Government’s Position on Unwilling & Unable

by Jens David Ohlin

Happy Thanksgiving.  As those of us in the United States celebrate our Thanksgiving holiday, it is of course imperative to remember that many people outside our country are facing serious problems and perilous circumstances.

In response to the terror attacks in Paris (and in Mali), the government of UK Prime Minister David Cameron has once again called on British lawmakers to authorize the use of military force in Syria. Cameron released a document that not only articulates the strategic necessity for military action against ISIS, but also outlines the Cameron administration’s legal position regarding the legality of the proposed strikes under international law. Unsurprisingly, the argument relies on the fact that the Syria government is unwilling or unable to stop the ISIS threat.

The following excerpt is taken from a longer document released by Cameron and sent to the British Parliament’s Foreign Affairs Committee. Here is the critical section dealing with international law:

There is now a UN Security Council Resolution. Resolution 2249 (of 20 November 2015) has now made a clear and unanimous determination that ISIL “constitutes a global and unprecedented threat to international peace and security”, and called upon Member States to take “all necessary measures … to prevent and suppress terrorist acts committed specifically by ISIL… and to eradicate the safe haven they have established over significant parts of Iraq and Syria.” There is a clear legal basis for military action against ISIL in Syria. The legality of UK strikes against ISIL in Syria is founded on the right of self-defence as it is recognised in Article 51 of the UN Charter. The right to self-defence may be exercised individually where it is necessary to the UK’s own defence, and collectively in the defence of our friends and allies. This reflects the multi-faceted and evolving threat that ISIL poses, and the response that is required to bring that threat to an effective end.

Collective Self Defence of Iraq

On 20 September 2014 the Government of Iraq wrote to the President of the UN Security Council seeking international assistance to strike ISIL sites and military strongholds, in order to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders. The main basis of the Global Coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. The UK is already supporting the Coalition’s efforts to degrade ISIL in Syria as a necessary aspect of effectively bringing an end to ISIL’s armed attack on Iraq. On 21 October 2014, the Defence Secretary announced to Parliament that he was authorising flights of manned and unmanned surveillance aircraft over Syria to gather intelligence against ISIL. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria and their ongoing attack on Iraq and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq.

In light of these considerations and the scale of the threat posed by ISIL, military action that is necessary and proportionate to bring an end to ISIL’s attack on Iraq is justified in accordance with the right of collective self-defence that is preserved in Article 51 of the UN Charter. The Coalition has relied on this legal basis for military action in Syria. Numerous States, including the USA, Australia, Canada and France have written to the UN Security Council explaining that they are taking action on the basis of the right of collective self-­defence. In accordance with the requirements of Article 51 of the UN Charter, the UK notified the UN Security Council that it was taking military action as part of the Coalition’s efforts in the collective self-defence of Iraq by a letter of 25 November 2014. The underlying considerations which justified collective self-defence of Iraq for UK activity in Syria in 2014 remain today. The collective self-defence of Iraq provides a clear legal basis for the UK to increase its contribution to the Coalition’s efforts against ISIL in Syria by taking direct military action itself, provided such activity meets the ongoing requirements of necessity and proportionality.

ISIL’s threat to the UK and its attack on our Allies and partners

The threat from ISIL continues to evolve and now goes far beyond Iraq and Syria, as is all too clear from the external attack planning disrupted by the precision UK strike of 21 August (as I reported to the House on 7 September) and the tragic events of 13 November in Paris. For several months now, UK security agencies have been monitoring the development of ISIL’s external attack planning capacity, which seeks to target both the UK and our allies and partners around the world. Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks. It is clear that ISIL’s campaign against the UK and our allies has reached the level of an “armed attack” such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL. As well as the collective self-defence of Iraq, there is therefore an additional legal basis to take action in our own self-defence and that of other allies and partners as well, where they request our assistance. The use of force in self-defence is of course limited to what is necessary and proportionate and we have made clear that we will act at all times in accordance with the law.

OTP Formally Requests First Non-African Investigation

by Kevin Jon Heller

Fatou Bensouda has just formally asked the Pre-Trial Chamber to authorise an investigation into war crimes and crimes against humanity committed by South Ossetian and Georgian forces between 1 July 2008 and 10 October 2008. Here are the relevant paragraphs from the ICC’s press release:

The Situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between the breakaway region of South Ossetia and Georgia degenerated into an armed conflict, which also involved the Russian Federation.

The Prosecutor finds a reasonable basis to believe that war crimes and crimes against humanity were committed during in the context of the armed conflict. This includes alleged crimes committed in the context of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

The information available to the Office of the Prosecutor indicates that between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign. The Office of the Prosecutor alleges, based on the information in its possession, that these offences, together with attendant crimes of looting and destruction of civilian property, were committed on a large scale as part of a plan and in furtherance of a policy to expel ethnic Georgians from the territory in South Ossetia. As a result, the Prosecutor estimates that the ethnic Georgian population living in the conflict zone was reduced by at least 75 per cent.

The Prosecutor also finds a reasonable basis to believe that both South Ossetian and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission.  Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more.  In a separate incident, ten Russian peacekeepers were reportedly killed and 30 wounded as a result of the attack against their facility by Georgian forces. The Russian peacekeeping force’s base was reportedly destroyed, including a medical facility.

The OTP’s formal request is 162 pages long, not counting the numerous annexes, so I won’t have substantive thoughts on the investigation for a while. I will just note that the request, as summarised by the Court’s media office, generally tracks the OTP’s 2014 Preliminary Examination Report, with one notable exception: the Georgian attack on the Russian peacekeepers. Given that the 2014 Report concluded that information about the attack was “inconclusive,” the OTP’s preliminary examination must have uncovered enough additional evidence of Georgian responsibility that Bensouda felt comfortable including it in her request for a formal investigation.

Assuming that the PTC approves Bensouda’s request, which seems highly likely, Georgia will obviously become the first non-African situation to be formally investigated by the ICC. The timing of the request is, of course, more than a little propitious, given that the ANC has been threatening to withdraw South Africa from the ICC because of its supposed anti-African bias. I doubt that the mere act of opening a non-African investigation will mollify the ANC and other African leaders; I imagine nothing short of actual charges against a suspect will have much impact. But the Georgia investigation is clearly a step in the right direction.

More soon!

PS: It’s worth noting that the Georgia request is almost four times as long as the request the OTP filed in 2009 with regard to Kenya — and that isn’t counting the numerous annexes in the Georgia request. It would seem that the OTP has learned its lesson from the Kenya fiasco. Recall that, with regard to Kenya, the PTC immediately asked the OTP to provide it with a great deal of supporting information. That kind of information appears to already be included in the Georgia request, which is smart prosecutorial practice.

Weekly News Wrap: Monday, October 12, 2015

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements: October 12, 2015

by Jessica Dorsey


  • A student writing competition is being organized in conjunction with the annual symposium convened by the Center for the Study of Dispute Resolution at the University of Missouri School of Law.  This year’s symposium is convened by Prof. Carli Conklin and is entitled “Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective.”  The symposium features Professor James Oldham, the St. Thomas More Professor of Law and Legal History at Georgetown University Law Center, as keynote speaker as well as expert panelists from England and the United States. The competition is sponsored by the Center for the Study of Dispute Resolution and offers a $500 prize to the competition winner.  The author of the winning paper may be invited to publish the winning submission in the symposium issue of the Journal of Dispute Resolution, subject to the agreement of both the editors of the Journal of Dispute Resolution and the winning author. Submissions should bear some relationship to the history of dispute or conflict resolution, broadly defined.  Topics may therefore consider issues relating to the historic development of international or domestic negotiation, mediation, conciliation and/or arbitration, among other things.  There is no requirement that papers discuss U.S. law.  Papers must be received no later than 11:59 p.m., Central time, on Monday, November 9, 2015. Further information on the writing competition is available on the symposium website.

Calls for Papers/Abstracts:

  • The 2016 ESIL Research Forum will take place on Thursday 21 and Friday 22 April 2016 at Koç University Law School and the Center for Global Public Law in Istanbul. The Research Forum is a scholarly conference which promotes engagement with research in progress by members of the Society. The 2016 Research Forum calls for papers addressing the theme of the making of international law, including through interdisciplinary research and methods, and through historical, theoretical or empirical approaches. The Call for Papers is now open. The deadline for submissions is 1 November 2015.
  • The 12th ESIL Annual Conference will be held in Riga on Thursday 8 – Saturday 10 September 2016. ESIL Interest Group events will be organised, as usual, on the day before the conference, on Wednesday 7 September. The conference is hosted by the Riga Graduate School of Law in cooperation with the Latvian Constitutional Court. The theme of the conference is: How International Law Works in Times of Crisis. The Call for Papers and the Call for Posters are now open. The deadline for submissions is 31 January 2016.


  • Global Law at Reading (GLAR) is delighted to unveil the programme for the inaugural Ghandhi Research Seminar Series. The series showcases the work of experts in global law fields. It is convened by Professor James A. Green, and is named in honour of Professor Sandy Ghandhi, who taught at the School of Law from 1978 to 2013. Anyone is welcome to attend these seminars, and attendance is free. However, visitors coming from outside the University of Reading are asked to please send advance notification that they will be attending:
  • The International Network of Genocide Scholars (INoGS) will hold its next conference in Jerusalem in June 2016. Here are links to the Call for Papers and conference website.

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

France Fails to Adopt “Unwilling or Unable” in Syria

by Kevin Jon Heller

Last month, Ashley Deeks claimed that France appeared “to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context.” France did indeed attacks ISIS targets in Syria. And it reported those strikes to the Secretary-General of the UN, claiming self-defence under Art. 51 of the UN Charter as a rationale for violating Syria’s sovereignty. But then something funny happened on the way to the Forum: France did not invoke the “unwilling or unable” theory. Here is its Art. 51 letter:


Looks like the “broad consensus” in favour of “unwilling or unable” now stands at three states — the US, UK, and Australia — not four.

Hat-Tip: Thierry Randretsa, author of the blog Dommages civils.

Final Compendium of High-Level Review of UN Sanctions Proposes Reforms to System

by Kristen Boon

The Compendium of the 2014 UN High Level Review of Sanctions, including its 150 recommendations, is now available here on the UN Website.  The Document number is A/69/941 – S/2015/432.  The review, sponsored by Australia, Finland, Germany, Greece and Sweden, took place from May –  November 2014, and involved a series of meetings between Member States, the Secretariat as well as other UN bodies.

The starting point of the review was to look at the 16 regimes in place, and discuss how to improve the existing sanctions system from there.  The compendium has many useful recommendations and observations.  Here are a few:

  • It emphasizes the move towards using sanctions to address trafficking in wildlife products and natural resources;
  • It highlights the importance of using sanctions to address transnational threats and new technologies; (Recommendation 146)
  • It recommends using sanctions to better address existing and emerging threats on, for example, incitement to genocide, sexual violence in conflict, and gross violations of women’s rights; (Recommendation 132)
  • It advocates the establishment of a Trust Fund for sanctions implementation assistance, a proposal originating from Jordan. (Recommendation 126).  While not going so far as to reference Article 50 of the UN Charter (special economic problems), together with recommendations 123 – 125 on assessments for assistance, it charts a future path towards better coordination and provision of assistance.
  • The Compendium also proposes better coordination between the ICC and the UN, highlighting the absence of clear processes in the past, and the possibility of future synergies.  For example, the compendium makes the very sensible recommendation of automatically listing individuals (where a relevant sanctions regime applies) after an arrest warrant has been issues by the Pre-Trial Chamber.  (Recommendation 100).

The compendium is a useful and current document, that gives a current state-of-play of UN sanctions while adding onto the Interlaken, Bonn and Stockholm and Greek initiatives of prior years.  Nonetheless, it must be noted that an attempt to pass a Security Council resolution last November on some of these same issues failed.   See the Security Council report assessment here of a draft resolution that was debated but never brought to a vote.   Attempts to strengthen capacity building, assistance and implementation for UN sanctions remain controversial – whether because of ongoing hesitation about the robustness of the tool, or because of opposition to strengthening the Secretariat’s policy making capacities.

What impact this document will have remains to be seen, but as the race heats up for the next Secretary General, one hopes that the recommendations will form part of the campaign, and further that future Secretary Generals will play a greater role in sanctions implementation, by for example, including substantive reports on sanctions in their briefings to the Security Council.  (See recommendation 50).

Guest Post: Colombia–How Much Justice Can the Peace Take?

by Kai Ambos

[Kai Ambos is Professor for Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg August Universität Göttingen, Judge at the District Court in Göttingen,  Director of the Centro de Estudios de Derecho Penal y Procesal Latinoamericano (CEDPAL) of Göttingen University and has worked in Colombia in various capacities over the last 25 years.] 

On 23 September, the Colombian President Juan Manuel Santos achieved a major breakthrough in the peace negotiations with Latin America’s oldest guerilla movement, the “Revolutionary Armed Forces of Colombia People’s Army” (FARC). After over three years of negotiations and reaching agreement in principle on other, less controversial matters (land reform, political participation and the drugs problem), the question of how to deal with the crimes committed by the parties to the conflict – especially by the FARC – remained the last and greatest obstacle to the successful conclusion of negotiations. Now, the FARC – much to the astonishment of many observers – have accepted the creation of a “Special Jurisdiction for Peace”. Essentially, this special jurisdiction’s aim is to ascertain the criminal accountability of all parties involved in the armed conflict with a dual procedural model: those actors who submit to the new jurisdiction of their own volition and confess to their acts can expect a maximum – so-called alternative – sanction of up to eight years, while those who refuse to cooperate will be subject to ordinary criminal proceedings ending in a prison sentence of up to 20 years. All concerned must contribute actively to the ascertainment of the truth, to the reparation of victims, and to guaranteeing the non-repetition of the crimes committed. A truth commission will – at long last – be established. The FARC must lay down their weapons at the latest 60 days after the signing of final accord, which is planned for 23 March 2016. The agreement makes a distinction between (political) crimes for which amnesty is possible and the core crimes under international criminal law, namely genocide, crimes against humanity, and serious war crimes, for which there is no amnesty. In return for submitting to the abovementioned special jurisdiction, the FARC is granted the status of a political movement.

While the agreement marks a key step towards achieving lasting peace in Colombia, it also raises some difficult legal and political questions that may – apart from the short period until 23 March 2016 – hinder its implementation. As far as the composition of the abovementioned special jurisdiction is concerned, the accord in principle follows the model of the so-called “hybrid” tribunals created in other transition processes, albeit with three “Salas previas” (kinds of pre-trial chambers) – responsible for fact-finding, amnesties and pardons and the determination of the legal situation of the respective responsible individual – and the more important “Tribunal para la Paz” (Tribunal for Peace), which will conduct the main trials. The structure is not set out clearly in the public part of the agreement. It is clear, however, that the judges will mainly be Colombians – insiders speak of 20 – , with a small number of foreigners (three to five). Here, the key question is: how will these judges be selected? Besides their professional suitability, the main concern will be their neutrality towards and independence from the parties to the conflict, which will make the selection of the Colombian judges quite a challenge, given the fact that the Colombian judiciary is highly politicised. The case is similar for the selection of the members of the abovementioned truth commission.

As regards the ratione materiae jurisdiction, any amnesty is excluded not only for the core crimes mentioned above (albeit with the qualifier “serious” for war crimes), but also for individual acts such as forced expulsion, forced disappearance, torture and – very broadly – “sexual violence”. The explicit prohibition of amnesty was welcomed by the Chief Prosecutor of the International Criminal Court (ICC), but it goes beyond the crimes contained in the Court’s Statute and thus beyond the prohibition of amnesty recognised under international law. Otherwise, as broad an amnesty as possible – pursuant to Art. 6(5) Additional Protocol II to the Geneva Conventions – will be granted for political and related offences (“delitos políticos y conexos”). The opposition, led by former President Álvaro Uribe and the Prosecutor General (Procurador General) Ordóñez Maldonado, have already criticised in this respect that the crimes of drug trafficking and kidnapping could be granted amnesty as “related offences” according to this approach. While this is indeed the case, it neither is prohibited under international law nor under Colombian law. On the contrary, it is in line with the special political offence tradition enshrined in Colombia’s legal history and Constitution. Indeed, the Colombian Supreme Court has explicitly acknowledged that the offence of drug trafficking is not excluded from the transitional justice regime (Judgment of 30 April 2014, Sala de Casación Penal, case no. 42534) and, furthermore, that it is linked to the offence of rebellion if it serves to finance the armed struggle (Concepto de extradición CP117-2015 of 24 September 2015).

As to the ratione personae jurisdiction, in principle all parties to the conflict, including the members of the state security forces, will be subjected to the special jurisdiction, but the prosecution will need to concentrate upon the main persons responsible – in accordance with international practice. This is not stated explicitly in the agreement, but can be deduced from its reference to “the most serious and representative acts” and “cases”.

The most difficult and controversial issue is that of the enforcement of the abovementioned sanctions. In their public statements, the FARC leaders have repeatedly made it clear that they would not accept a usual prison sentence in a normal detention facility; however, they appear to have yielded in this regard also. Strictly speaking, the agreement sets out a threefold differentiation, whereby any sanction must include “an element of restriction of liberty”: those who admit their acts will receive the abovementioned alternative punishment of between 5 and 8 years, with the type of enforcement depending on whether the individual concerned has admitted to their acts immediately or only “later” (“tardía”). which needs to be determined more precisely. In the first case, the punishment is enforced under “special conditions”, and in the second under “ordinary conditions”. These “ordinary conditions” will also be applied to those who refuse to cooperate and can thus expect a prison sentence of up to 20 years. Accordingly, it seems clear that only those who confess at once can expect special treatment, that is, to serve their sentence outside a normal detention facility. The Colombian legislator will have to determine the exact details of these special conditions, with international (criminal) law leaving a broad margin of appreciation.

As it stands now, there are no objections to the agreement from the point of view of international law, and the ICC will also be happy with it. Of course, the much more detailed basic document which contains 75 points has not been published so far. In any case, on the domestic front the main concern will be less with international law and more with the Colombian population’s political acceptance of the agreement. Ultimately, this can only be achieved by a referendum.

The author is grateful to Margaret Hiley, M.A., Ph.D., for her assistance in the preparation of this English version.

Update to Open Letter from International Lawyers to EU States, the European Union and European Publics on the Refugee Crisis in Europe

by Başak Çalı

[Dr. Başak Çalı is Director for the Center of Global Public Law and Associate Professor of International Law at Koç University, Turkey. She the secretary general of the European Society of International Law. The following is written in her personal capacity. This is a follow-up post to the open letter we published 24 September.]

The open letter from international lawyers to the EU, EU states and the European Publics public concerning the existing international legal obligations to those seeking international protection has attracted signatures from over 900 international lawyers after it has been reopened for signature. The signatories include leading experts in international refugee law, Professors Deborah Anker (University of Harvard); Chaloka Beyani (LSE); Vincent Chetail (Graduate Institute of International and Development Studies);  Bhupinder Chimni (Jawaharlal Nehru University); Michelle Foster (University of Melbourne); Geoff Gilbert (University of Essex, Editor in Chief, International Journal of Refugee Law); Guy Goodwin-Gill (Emeritus Fellow, All Souls College, Emeritus Professor of International Refugee Law, University of Oxford); Elspeth Guild, (Radboud University Nijmegen); James Hathaway (Professor of Law and Director, Program in Refugee and Asylum Law, University of Michigan & Distinguished Visiting Professor of International Refugee Law, University of Amsterdam); Jane McAdam (University of New South Wales (UNSW)); Boldizsár Nagy, (Central European University & Eötvös Loránd University, Budapest); Gregor Noll (University of Lund); Thomas Spijkerboer (Professor of Migration Law, VU Amsterdam) and many others.

On 30th September, the office of the President of the European Commission, Mr Jean-Claude Juncker, responded to the Open Letter explaining that the Member of the Commission responsible for Migration, Home Affairs and Citizenship, Mr Dimitris Avramopoulos ‘is looking into the points you have raised and will respond to you rapidly.’

In summary, the Open Letter urges European states and the EU to:

  •  meet their obligations of international responsibility-sharing, to resettle significant numbers of refugees and provide aid to countries hosting large numbers of refugees.
  • as regards those seeking protection in Europe, abandon those policies which prevent safe and legal access to protection. The UNHCR estimates over 2,860 people have died at sea trying to get to Europe this year alone. Suspending carrier sanctions and issuing humanitarian visas would largely prevent the need for those seeking refuge to make dangerous journeys.
  • respect and protect the human rights of those seeking refuge once they are in Europe, including by enabling them to access asylum procedures or ensuring safe passage to countries where they wish to seek international protection.
  • immediately suspend Dublin returns of asylum-seekers to their first point of entry, but ensure that its rules on family reunification are implemented fully and swiftly.
  • relocate asylum-seekers and refugees in a manner that respects the dignity and agency of those relocated, and increases Europe’s capacity to offer protection.
  • replace the Dublin System with one which accords with international human rights law and respects the dignity and autonomy of asylum-seekers, and supports international and intra-European responsibility-sharing.
  • implement fair and swift procedures to recognize all those in need of international protection.
  • while claims are being examined, afford those in need of international protection, at a minimum, the reception conditions to which they are entitled in international human rights and EU law.
  • respect the right to family life, including positive obligations with regard to family unity, facilitation of swift family reunification and family tracing.
  • treat all refugees, asylum-seekers and migrants with dignity and respect, respecting and protecting their human rights, irrespective of status.

Read the entire Open Letter here (.pdf).

Under the New “Investor-State Arbitration” in the Trans Pacific Partnership, Claimants May Have to Pay Attorneys’ Fees

by Julian Ku

The U.S. and eleven other Pacific Rim countries announced they have reached agreement on the Trans Pacific Partnership trade agreement, which will more tightly integrate 40% of the world’s economy into a single regional bloc. There will be a huge fight in Congress over the TPP by progressive Democrats in the U.S. Even presidential candidate Hillary Clinton has already announced her opposition (sort of).

One area of ire for critics will certainly be the TPP’s provisions for investor-state dispute resolution (See Sen. Elizabeth Warren’s attack on this area here).  The TPP negotiators seem to have recognized that those provisions needed modifications and they seem to have focused on providing more transparency in arbitral proceedings.  But I was particularly struck by the U.S. Trade Representative’s official summary of the agreement’s provisions on investor state arbitration below.

The chapter also provides for neutral and transparent international arbitration of investment disputes, with strong safeguards to prevent abusive and frivolous claims and ensure the right of governments to regulate in the public interest, including on health, safety, and environmental protection.  The procedural safeguards include:  transparent arbitral proceedings, amicus curiae submissions, non-disputing Party submissions; expedited review of frivolous claims and possible award of attorneys’ fees; review procedure for an interim award; binding joint interpretations by TPP Parties; time limits on bringing a claim; and rules to prevent a claimant pursuing the same claim in parallel proceedings.

I find this provision on attorneys’ fees fascinating. I presume this will allow state-respondents to actually recover attorneys’ fees from investor-claimants if those claims were somehow deemed frivolous.  I didn’t realize frivolous claims were actually a huge problem in investor-state dispute resolution.  I am not aware of data showing lots of weak claims being filed with state-respondents just settling to avoid the costs of arbitration.

I am also not aware of any other kind of international dispute resolution, public or private, which has this kind of arrangement. It is worth the wait to see the details, but it is sign the TPP negotiators are getting ready to take fire on this area from folks like Sen. Warren, and have added a little armor ahead of time.

Crossing Lines Is Back! (And Actually Better Than Ever)

by Kevin Jon Heller

I stopped watching Crossing Lines about five episodes into Season 2 – about the time the ICC started investigating a series of home invasions. (Yes, really.) I had no intention of watching again, but I decided to give the show one more try at the urging of my friend Mel O’Brien. So a couple of nights ago I watched the double episode that kicks off Season 3, which features an almost entirely new cast, including the excellent Elizabeth Mitchell and Goran Višnjić (who is Croatian, a nice touch).

To be sure, the show still has its fair share of minor annoyances. Our protagonists remain, inanely, the “cross-border team.” The magic hologram machine has yet to make an appearance, but the team does have a virtual chalkboard that would be at home in Minority Report. Donald Sutherland’s barrister robe has these weird little stubs that make it look like it came from an S&M dungeon. The South African judge is a little too gleeful when he pronounces the defendant guilty (which annoyed Mel) – and why are there approximately 10 other judges sitting around him?

There are still substantive problems, as well. The double episode revolves around the team trying to establish the reliability of documents before they are excluded by the judges – which, of course, would never happen at the ICC, given its civil-law-oriented “free proof” evidentiary regime. The judges would simply admit the documents and then take reliability issues into account when determining their probative value. And the defendant appears to be formally charged with “ethnic cleansing” – which is, of course, a non-technical term. The correct charge would have been, given the facts of the case, forcible transfer.

That said, I have to admit the double episode was pretty darn good. The defendant was a Congolese warlord accused of massacring an entire village in the eastern part of the DRC. An actual international crime – and one that didn’t even cross a border! Better, the warlord was acting on behalf of an American corporation that needed to ensure the continued supply of coltan, a rare metal necessary for its telecommunications products. The village was sitting on a particular valuable deposit of the metal, so the warlord killed its inhabitants to open the area to mining.

That is a quite sophisticated story line – and one that is very realistic. It was also particularly enjoyable to see the ICC bring the sleazy American CEO to justice – in a US court, another nice touch. (Although the substantive international criminal lawyer in me would have liked to see Donald Sutherland litigate the jurisdictional issues involved in prosecuting a national of a non-State-Party for aiding and abetting an international crime that was committed on the territory of a State Party.) If only the real ICC would go after a multinational corporation!

All in all, a job well done by the show’s writers. We’ll see if the progress lasts…

Weekly News Wrap: Monday, October 5, 2015

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements: October 4, 2015

by Jessica Dorsey


  • iCourts (Center of Excellence for International Courts), The Faculty of Law, University of Copenhagen, Denmark is seeking applications for two or three positions as postdoc within the research area of one of the Faculty’s research centres – iCourts (the Center of Excellence for International Courts). The positions are available from 1st February 2016, and for duration of two (2) years. Start date is negotiable under special circumstances.
  • A new blog has joined us in the ether, Rights! a free, open online platform to read, write, discuss, share and act on human rights and democratisation: On one single platform, Rights! gathers together think pieces, comments from the field, case studies, interviews, critiques and provocations from established and emerging human rights professionals from all regions of the world. Find more here.

Calls for Papers/Abstracts:

  • The Leuven Centre for Global Governance Studies is organizing an international conference on global public goods, global commons and democracy (22-23 February 2016, Leuven, Belgium). The conference will explore the economic, legal and political underpinnings, premises and implications of global public goods and global commons for global governance institutions and international organizations, especially in relationship with the debate on their (non)-democratic nature. The aim is to assess, from an interdisciplinary perspective, how the respective discourses surrounding global public goods and global commons diverge in their relation to global democracy, and, in particular, to the advancement of democracy in global governance and international organizations. Abstracts (no longer than 500 words) should be submitted by the 8th of October 2015. More information can be found here.
  • The Russian-Armenian (Slavonic) University (RAU) in cooperation with the Delegation of the International Committee of the Red Cross (ICRC) in Armenia announce the 8th Yerevan International Conference for Young Researchers on International Humanitarian Law, which will be held from 19 November to 21 November 2015 in Yerevan, Republic of Armenia and will be held under the theme “IHL Development: New Agenda and Reality Check”. The Yerevan Conference is a unique international platform for the discussion of contemporary issues and perspectives related to IHL development among the young scholars. Over the years the conference hosted a number of renowned international experts in the field of IHL, international criminal law and constitutional law thus providing a unique possibility to the young participants not only to be heard by the established professionals and experts, but also to engage with them in the open discussion over their opinions and views. Finally, the Conference provides the unique cultural experience of visiting always beautiful and hospitable Armenia and meeting old and new friends from all over the world. More information about the Conference can be found here. Young researchers in the field of IHL under the age of 35 are invited to take part in the Conference participants pre-selection process. In order to apply the applicants should submit a research paper strictly within the scope of the announced conference topics presented in the Call for papers found here. The deadline for submitting the application package is October 18, 2015.
  • The Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXV), which will be published in June 2016. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works. Submissions should not exceed 15,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal. All details about submission procedure and required formatting are available at the PYIL’s webpage. Please send manuscripts to pyil [at] inp [dot] pan [dot] pl. The deadline for submissions is 31 January 2016.


  • International Conference: “International Humanitarian Law and Modern Warfare” Rome, 23-24 October 2015. The relationship between warfare and international humanitarian law is an ever-evolving one. New combat methods, novel technologies and the evolution of weaponry pose critical challenges to international humanitarian law; at the same time, the high task of protecting the principles of humanity during wars requires an evolution and an adaptation of the law. International humanitarian law is “law in motion”. Carabinieri are involved in a number of international missions and operations, so we have decided to organize this conference, because we consider it as an important objective to contribute to fostering the study and understanding of such important issues, in the interest of members of the military and society at large. The conference in Rome will last two days and the debate will spread across four panels: one will deal with new weaponry and the law; one will focus on the relationship between human rights and humanitarian law in the context of modern warfare; another will cover recent judicial developments in international humanitarian law and the last one will address the evolving relationship between the general principles of international humanitarian law and the features of modern warfare. Each panel will be composed of four/five experts, and it will be moderated by a young scholar in the field. The deadline for registration is today! For more details, please click here.
  • The American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA) present: International Law Weekend 2015This year’s conference will be held in New York City on November 57, 2015. The theme of International Law Weekend (ILW) 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. ILW 2015 will explore the many roles that international law plays in addressing global challenges. The conference will offer engaging panels on current problems and innovative solutions in both public and private international law. Register Now for ILW 2015. ILW begins Thursday evening, November 5, with a distinguished opening panel at the New York City Bar. The opening panel, “The Rule of Law and the Post 2015 Development Agenda,” will feature dialogue with senior UN officials and representatives of member states on efforts to advance the UN Rule of Law Initiative and to achieve the Sustainable Development Goals (SDGs) over the next fifteen years.  A reception will follow and is open to all conference attendees. The conference continues Friday, November 6 and Saturday, November 7 at Fordham University School of Law. Friday’s activities feature a keynote address by Miguel de Serpa Soares, United Nations Under-Secretary-General for Legal Affairs and United Nations Legal Counsel. View the ILW 2015 Program (subject to change).

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