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International Law Movies

by Kristen Boon

After attending a great panel at ESIL in 2014 on International Law and Film, I’ve been thinking about how to integrate film into my public international law class. I’ve compiled a list of international law films (with help from colleagues and fellow bloggers) that make for excellent viewing.  In a subsequent post, I’ll offer some thoughts about teaching international law through film.

Dramatizations

Zero Dark Thirty (Bin Laden)

Team America (Terrorism, North Korea and WMDs) (not on the serious side of international law movies!)

The Interpreter (filmed in the UN)

Argo (Iran Hostage Crisis)

The Reader (War Crimes Trial in Germany)

Battle of Algiers (Algerian War of Independence)

Hotel Rwanda (Genocide in Rwanda)

Woman in Gold (Nazi Art Theft, FSIA)

The Whistleblower (Post-War Bosnia)

Captain Phillips (Piracy)

Blood Diamond (Conflict Diamonds)

Lord of War (Arms Dealing)

War Witch (Child Soldiers)

Star Wars (Trade Dispute prompts Armed Conflict in Outer Space) J

Bridge of Spies (Cold War)

The Constant Gardener (Diplomacy, Pharmaceuticals, British High Commission in Kenya)

Judgment at Nuremberg (Nuremberg Trials)

Documentaries

The Reckoning (The ICC)

Last Station before Hell (UN peacekeeping)

Sons of the Clouds:  The Lost Colony (Western Sahara)

The Gatekeepers (Shin Bet)

Taxi to the Darkside (Torture, Afghanistan)

All Rise (Jessup Competition)

 

An alternate list of international law films compiled by Lyonette Louis-Jacques at the University of Chicago Law Library with more foreign / older content available is here.

Do you have additional movie ideas?  Please add other titles using the comments box below.

Symposium on Ruti Teitel’s “Transitional Justice and Judicial Activism: A Right to Accountability?”

by Chris Borgen

This week it is our pleasure to host a symposium on Professor Ruti Teitel’s article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf).  After an initial post by Professor Tetitel, we will have comments by Dinah PoKempner of Human Rights Watch, Professor Cesare Romano of Loyola, and Professor Chandra Sriram of the University of East London.

We are looking forward to the discussion!

The International Criminal Court’s Assembly of States Parties Meetings: Challenges to the Work of the Court

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, The Center for Global Affairs, NYU-SPS. She attended ICC ASP 14 on behalf of the American NGO Coalition for the ICC and the American Branch of the International Law Association International Criminal Court Committee. The opinions expressed are not necessarily those of AMICC or the ABILA.]

From November 18-27, delegates of states that are parties to the International Criminal Court’s Rome Statute, as well as NGOs and delegates of non-State Parties gathered in The Hague for the 14th annual Assembly of States Parties meetings.

While much of the ASP’s business carried on as usual, two threats to the Court’s work emerged.
The first came in the form of a Kenyan proposal seeking an interpretation or reaffirmation that Rule 68’s amendment made at the ASP in 2013 would not apply retroactively. On its face, the measure Kenya proposed looked harmless enough. The ASP is indeed the body before which amendments to the ICC’s Rome Statute and Rules of Procedure and Evidence are to be brought after prior presentation to the New York working group on amendments.

But the unstated purpose behind Kenya’s proposal appeared to relate to the pending cases against Kenyan Deputy President William Ruto, and Joshua Arap Sang. Each is charged with crimes against humanity in connection with post-election violence in Kenya’s 2007-8 presidential elections in which over 1,000 persons died. (The measure may also have been indirectly aimed at insuring that a prior case against Kenyan President Uhuru Kenyatta – as to whom the charges have been withdrawn without prejudice – will not be reinstated.) A likely goal is to ensure that prior recorded witness testimony of witnesses who subsequently became “unavailable” could not be used in evidence. Given serious and credible allegations of witness tampering and disappearances—there are pending proceedings related to attempts to corrupt ICC witnesses in the Kenya cases—the proposal could be aimed at keeping out information potentially relevant to pending trials. To make matters worse, the issue of whether the Rule 68 amendment applies retroactively is currently pending before the ICC’s Appeals Chamber in the Ruto & Sang case.

In oral remarks responding to Kenya’s proposal on Thursday November 19 and then again in the closing plenary session, various States made strong statements about the need to preserve the Court’s independence and not interfere in matters pending before the Court. Yet, it was disheartening to later see delegates willing to attempt to mollify the Kenyan delegation by negotiating language favorable to the Kenyan position. If a matter really is sub judice, there should be no ASP role, period. (The only bright spot is that the language negotiated was included in a final report summarizing discussions of the Assembly, and not in a formal assembly resolution.) What the Court will eventually make of all of this, is, of course, another matter – as the judges do not necessarily need to accept even Rule or Statutory amendments from the ASP if they deem them inconsistent with the Rome Statute or beyond the ASP’s authority. Moreover, judges would likely accord language from a report little weight, if any.

Kenya’s second proposal was to develop an ad hoc mechanism of independent jurists to advise the Prosecutor in her selection of Prosecution witnesses. There is absolutely no precedent for such a measure, which clearly is aimed at stymying the Prosecutor’s work. Such an attempt to interfere with Prosecutorial independence appropriately met with little enthusiasm from other state delegations.

The theatrics of Kenya’s presentation of these proposals on November 19 were amplified when the more than 80-person Kenyan delegation applauded loudly to all of Kenya’s statements. Most of the rest of the room then applauded the interventions by other states who insisted on the Court’s independence, and not interfering in matters pending before the Court. The effect was somewhat like an audience at a sporting event, cheering their two respective teams. It seemed unseemly to say the least, and one can only wonder at the choice of allowing a delegation to be that large. Most other States sent at most a handful of representatives.

Another threat to the Court’s work was far more ordinary and predictable but also serious: seven States Parties holding out not to give the Prosecutor the budget she requested as necessary to do her work. With the Court active in 8 situation countries, with 23 pending cases, and preliminary examinations across the globe, now is not the time to nickel and dime the Prosecutor of the world’s worst atrocity crimes. The Court has a bigger docket than it ever has had before. The blame here also should be extended to the U.N. Security Council, which referred two situations to the Court (those in Libya and Darfur) but refused to pay for them, and has failed to insure that any of the outstanding arrest warrants or other transfers related to the cases are executed. At the ASP, the Prosecutor had requested a budget increase of 17%, but only received a 7.1% increase. If she now has to curtail meritorious investigations, which is anticipated, we have only States to blame, and not the Prosecutor.

These ASP gatherings of NGO’s and State delegates from around the world are in some ways heartening – to see a global network of individuals committed to international criminal justice, and the prosecution of the worse atrocity crimes through the ICC. Complementing the formal sessions are numerous “side events” that range the gamut from attempting to ensure justice locally in Africa, to strengthening the ICC’s work related to victims, and attempting to ensure accountability for crimes in Syria. Yet, the ASP meetings are also disheartening to see such attempts at political interference in the Court’s work (and budgetary shortsightedness). It is also disappointing, although perhaps understandable, to see States attempting to pacify delegates in order to avoid having their State potentially withdraw from the Rome Statute. One wonders whether that Faustian bargain is worth striking.

Crunch Issues in Paris

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the third in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

In an earlier post, I expressed cautious optimism that the Paris conference will succeed in adopting a legal agreement that requires countries to formulate and submit emission reduction plans, provides for international transparency and review, and establishes a process for countries to periodically ratchet up their efforts. But although the broad outlines of the agreement have been apparent for several years, a number of important issues remain to be resolved, on which the conference could still founder.

Here’s a brief summary of the “crunch” issues:

• How to reflect the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC)?

The issue of differentiation has been one of the most controversial since the inception of the UN climate change regime, and plays out across all of the different elements of the Paris agreement: mitigation, adaptation, finance, and transparency. It’s clear that the Paris agreement will move away from the rigid differentiation between Annex I and non-Annex I countries found in the Kyoto Protocol, towards a more global approach. But will any vestige of the Annex I/non-Annex I dichotomy remain?

Developed countries mostly argue that the concept of nationally determined contributions (NDCs) implies self-differentiation and that this self-differentiation is sufficient. But many developing countries would like some continuation of the categorical, annex-based approach found in the UNFCCC and the Kyoto Protocol. The 2014 US-China joint announcement added the phrase “in light of different national circumstances” to the principle of CBDR-RC, apparently to give it a more dynamic quality. This formulation was included in the Lima Call for Action (.pdf), and will almost certainly find its way into the Paris Agreement. But a general reference to CBDR-RC will likely not be enough to satisfy developing countries, so expect to see some additional language on differentiation in particular articles, for example, those on mitigation and transparency.

I don’t see the US and other developed countries accepting a reference in the Paris agreement to the UNFCCC annexes, which they view as outmoded, but my guess is that negotiators will find some language to bridge the gap – for example, in the context of mitigation, a principle of progression, which provides that countries that have previously pledged absolute economy-wide targets should continue to do so and that all countries should aim to do so over time. This formulation, in effect, differentiates between Annex I countries (which all pledged absolute, economy wide emissions targets in Copenhagen) and non-Annex I countries, without any explicit reference to the annexes, and thus might be acceptable to both sides.

• Whether to include a long-term decarbonization goal?

In Copenhagen, states agreed to a goal of limiting climate change to no more than 2° C. There is considerable – but not universal – support for supplementing this goal with a long-term decarbonization goal, like that included in the G-8 Leaders Statement last June, to provide a signal to business and investors. Many countries would like to include a decarbonization goal in the Paris agreement itself, but if consensus cannot be reached to do so, a possible fallback would be to include the goal in the Conference of the Parties (COP) decision that adopts the Paris agreement, which would give the goal a slightly lesser political status.

• Whether to include a commitment that parties implement their nationally determined contributions (NDCs)?

A central issue in the negotiations has been what commitments to include with respect to NDCs. There is broad agreement to include procedural commitments – for example, to formulate, submit, and periodically update NDCs. And even countries that seek to make NDCs legally binding seem to accept that the agreement will not commit countries to achieve their NDCs (thus distinguishing the Paris agreement from the Kyoto Protocol). But the European Union and some developing countries wish to include a commitment relating to implementation of NDCs.

A duty to implement, as compared to a duty to achieve, is an obligation of conduct rather than result. But if the Paris agreement contained a straightforward obligation on parties to implement their NDCs, then the difference between the two approaches appears small, since, arguably, the test of whether a state has implemented its NDC is whether it has achieved its NDC. This has led to a search for softer formulations of the commitment to implement: for example, a commitment to adopt measures “aimed” or “intended” to implement a country’s NDC, or a commitment to adopt implementing measures “related to” a country’s NDC. The trick is to find some formulation that (more…)

Keeping up with the UN’s On-Line Lectures on International Law

by Duncan Hollis

We wanted to pass along a quick update from our friends at the UN Office of Legal Affairs who continue to build out an on-line international law research portal that can hopefully have lasting impact:

The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge.

The latest lectures were given by Sir Michael Wood on “International Law and the Use of Force: What Happens in Practice?”, Professor Djamchid Momtaz on “La sécession en droit international” and by Professor August Reinisch on “The Evolution of WTO Dispute Settlement”.

On the Legitimacy of the Settlements: A Legal and Historical Perspective

by Lorenzo Kamel

[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]

It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.

The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.

In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.

But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”.

On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.

This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the

(more…)

Reminder: Deadline for the Fifth Annual Junior Faculty Forum

by Kevin Jon Heller

JFF2016_CoverOnlyJust a reminder that the deadline for applications for the Fifth Annual Junior Faculty Forum for International Law, which will be held at NYU from June 27-29, 2016, is fast approaching. Applications are due December 15. Those who are keen to make an application can find the details of the application procedure set out here. As always, I highly recommend that young scholars apply!

State Department Confirms that Senators Rubio and Cotton were Right, Professors Ackerman and Golove were Wrong

by Julian Ku

I can’t resist one final post to complete an earlier discussion between myself and professors Bruce Ackerman and David Golove on the legal status of the Joint Comprehensive Plan of Action (JCPOA), also known as the Iran Nuclear Deal.  As several others in the blogosphere have noted, the U.S. State Department has confirmed, in a letter to Congress, the following:

The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JPCOA reflects political commitments between Iran and the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.

(Thanks to Michael Ramsey at the Originalism Blog and Matthew Weybrecht at Lawfare for noting and posting this letter).

This letter confirms that, contra the argument advanced by Professors Ackerman and Golove in the Atlantic and on this blog, the JCPOA is NOT a congressional-executive agreement authorized by Congress when it passed the Iran Review Act last spring.  Rather, the entire JCPOA is a “political commitment.”

As Professor Ramsey correctly notes, this means that Senator Marco Rubio was quite right in saying that, if elected President, he could withdraw the JCPOA without violating U.S. or international law.  It also means that Senator Tom Cotton was quite right, as a practical matter, in his famous open letter saying that the next US president could withdraw the agreement.  And it means (less importantly in the grand scheme of things but important for me), that I was right in saying that the JCPOA is not a congressional-executive agreement.

The larger issue is this: If the President is going to go around making political commitments, that’s fine.  But he should be clear that this is what he is doing so that smart people like Professors Ackerman and Golove don’t get confused into thinking he is making a binding agreement..  As Dan Bodansky explains, the U.S. is going to make the Paris Agreement a political commitment (at least with regards to emissions reductions).  As I’ve been arguing here and elsewhere, the U.S. should be clear about what it is doing in Paris, and what it is not.

The Legal Character of the Paris Agreement: A Primer

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He will be in Paris for the climate change negotiations. This is the second in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

Confusion reigns supreme about the legal character of the Paris agreement.  Last month, Secretary of State Kerry made waves in Europe when he said that the Paris agreement would “definitely not be a treaty.”  This prompted President Hollande to respond, “If the deal is not legally binding, there is no accord, because that would mean it’s not possible to verify or control commitments that are made.”  And just yesterday, the New York Times reported that the Paris agreement will not be “a legally binding treaty” that needs ratification by governments to have force, but will instead consist of “voluntary plans” that “avoid the legal definition of a treaty.”

So here is a quick primer on the legal character of the Paris Agreement:

First, there appears to be no question that the agreement will be a “treaty” within the meaning of the Vienna Convention on the Law of Treaties, that is “an international agreement concluded between States in written form and governed by international law” (VCLT art. 2.1(a)). As the VCLT expressly states, whether an agreement constitutes a treaty does not depend on what the agreement is called.  Rather, it depends on whether the agreement’s contents manifest an intent by the parties that the agreement be governed by international law. The current negotiating text includes final clauses addressing such issues as signature, ratification, entry into force, and depositary, which make sense only if the parties wish to make the agreement a treaty under international law.

Second, although the VCLT provides that agreements are binding upon the parties and must be performed by them in good faith (VCLT art. 26), not every provision in a treaty necessarily creates a legal obligation, the breach of which entails non-compliance. Often, treaties contain a mix of mandatory and hortatory elements.  For example, the emissions target set forth in Article 4.2 of the UN Framework Convention on Climate Change was expressed as an “aim.”  So, even though the Paris agreement will be a treaty, not every element of it need be legally binding on the parties.  For example, countries’ “nationally-determined contributions” (NDCs) – that is, their emission reduction targets – could take the form of a political aim rather than a legal obligation.

Third, the term “treaty” has a narrower meaning in US law than in international law, referring to agreements that the President sends to the Senate for advice and consent to ratification under Article II of the Constitution.  The vast majority of treaties in the international sense are not adopted as Article II “treaties;” rather they are adopted as “executive agreements,” in most cases with the approval of Congress, but in some cases by the President acting alone.  So even if the Paris agreement is a treaty under international law, it need not be adopted by the United States as a “treaty” under Article II of the Constitution.  (For more on the issue of US adoption, see Julian Ku’s recent post, A Treaty or Not a Treaty.)  This may have been what Secretary Kerry meant when he said that the Paris agreement would “definitely not be a treaty.”

Fourth, whether the Paris agreement is adopted by the United States as an Article II treaty, with the advice and consent of the Senate, or as an executive agreement, by the President acting alone, would not affect its character under international law or the ability of a future President or Congress to withdraw.  Regardless of the procedure for adoption, as a matter of international law, the right of the United States to withdraw would be governed by the agreement’s withdrawal clause, and, as a matter of US law, US participation could in practice be terminated by a future president through executive action or by Congress through the enactment of a later-in-time statute.

Finally, although most people, including President Hollande, assume that the Paris agreement will be more effective if countries’ NDCs are legally binding, this is not necessarily the case.  The effectiveness of an international regime is a function of three factors:  (1) the ambition of its commitments; (2) the level of participation by states; and (3) the degree to which states comply.   Those who argue for the importance of a legally binding outcome in Paris focus primarily on compliance.  But the legally binding character of parties’ NDCs could also affect ambition and participation, potentially in negative ways.  Moreover, even if the legally-binding character of a provision does enhance compliance – a plausible hypothesis but one that has resisted empirical demonstration – other factors can also promote compliance, including transparency and accountability mechanisms, which make it more likely that poor performance will be detected and criticized, thereby raising the reputational costs for the state concerned.  Contra President Hollande, these verification procedures do not depend on the legal character of parties’ NDCs; non-binding provisions can also be subject to a strong system of monitoring, reporting and verification.   So the question is how much additional compliance would result from making NDCs legally binding, and whether this value-added for compliance might be outweighed by a diminution in participation and/or ambition.

For more on the legal status of the Paris agreement, see Bodansky and Rajamani, Key Legal Issues in the 2015 Climate Negotiations (Center for Climate and Energy Solutions 2015), Bodansky, Legally Binding vs. Non-Legally Binding Instruments, in Scott Barrett, Carlo Carraro & Jaime de Melo, eds., Towards a Workable and Effective Climate Regime (VoxEU eBook 2015), and Bodansky, Legal Options for US Acceptance of a New Climate Change Agreement (Center for Climate and Energy Solutions 2014), from which this post is drawn.

What Would Constitute Success in Paris?

by Daniel Bodansky

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He will be in Paris for the climate change negotiations. This is the first in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

The latest episode of the long-running drama known as the UN climate change negotiations begins this week in Paris. Commentators are touting the Paris conference as “historic”, “pivotal,” the “last chance” for the world to address the climate change problem. So what would constitute success?

For the past couple of decades, political scientists and international lawyers have debated how to measure the effectiveness of international environmental regimes. The gold standard of effectiveness is whether an agreement solves the problem that it seeks to address. That would require the Paris conference to prevent “dangerous anthropogenic climate change” – the explicit objective of the UN Framework Convention on Climate Change. No one is exactly sure how much global warming would be compatible with this objective; to the extent severe weather events like the 2003 Paris heat wave (.pdf) or Hurricane Sandy can be attributed to global warming, then perhaps we are already in the dangerous zone. At the Copenhagen Conference, the international community defined the goal less stringently, as warming of less than 2° C above pre-industrial levels. But some think that 2° itself would be too much, arguing for limits of 1.5° or even .

So far, the world has warmed by about 1°, according to the latest data from the UK Met Office. This might suggest that we’ve still got some headroom, measured against the 2° temperature. But the climate system has tremendous inertia, so the effects of past emissions have been only partially realized. Even if we stopped emitting completely right now, the world would still warm by another half degree or more before leveling off. And, of course, global emissions continue to go up rather than down, and peak emissions, let alone zero emissions, are still more than a decade away.

The bottom line is that there is no prospect that the Paris conference will, in itself, put us on a pathway to meeting the below-2° limit. The emission reduction goals that countries have submitted as part of the Paris process (known in climate change argot as “intended nationally determined contributions” or INDCs) instead put the world on a pathway to global warming of around 3° or 3.5°. So if we take problem-solving effectiveness as our measure of success, then we are bound to be disappointed.

But few public policies fully solve the problem that they address; by that standard, virtually every public policy falls short. In my view, the more reasonable test is whether the Paris conference results in a significant improvement over what would have happened otherwise. And by this measure, the Paris conference is likely to be successful.

How should we assess whether Paris is moving us in the right direction? I would suggest four elements:

• First, is the Paris agreement global in its coverage?
• Second, have countries pledged to make significant reductions in their emissions?
• Third, does the agreement establish mechanisms to promote transparency and accountability, so that we will know whether countries do what they say?
• Fourth, does the agreement provide a process to to ratchet up its level of ambition over time?

On the first element, the Paris process can already be counted a success. More than 150 countries, representing more than 85% of global emissions, have come forward with INDCs – that is pledges of what they’re going to do to reduce emissions. Compared to the Kyoto Protocol, which even in its prime covered only about 25% of global emissions, this a major step forward.

Second, the INDCs that countries have submitted represent a significant improvement over current policy. According to a recent analysis by the UN Climate Change Secretariat, they would reduce emissions by about 3 gigatons (GT) CO2e in 2025 and 4 GT in 2030, as compared to the business-as-usual trajectory. Although this falls well short of putting the world on a below-2° pathway, global warming of 3° C would still be better than 3.5°, and 3.5° better than 4°, and 4° better than 5°. So if Paris moves us down the scale of likely warming, then this represents progress.

Third, countries seem likely to agree to a relatively robust system of reporting and review. While transparency in itself does not ensure that countries will comply, at least it would allow the international community to assess whether countries are living up to their pledges, and to exert peer pressure if they don’t.

Finally, countries also look likely to agree to come back every five years to take stock of what’s been achieved and how that compares to the 2° goal, and to put forward new, more ambitious emission reduction plans.

So I am cautiously optimistic about the Paris conference. Of course, one shouldn’t underestimate the capacity of the UN climate change process to seize defeat from the jaws of victory. And the victory would, in any event, be only partial. But if Paris establishes a durable framework that is global in scope, provides for transparency, and pushes to strengthen ambition over time, then, for me, that would be a significant achievement and would constitute success.

Whale Wars Truce is Over! Japan Will Resume Whaling Despite ICJ Ruling

by Julian Ku

Reports suggest that the Japanese government will resume whaling in the Southern Ocean near Antarctica early next year.  This news is causing lots of teeth-gnashing and anger in Australia and New Zealand, whose governments had brought and won a recent International Court of Justice decision finding Japan’s previous whaling program in violation of the International Whaling Convention.  The news also reveals (again) the limits of the ability of international dispute settlement system to change a country’s behavior.

Japan had previously said it would abide by the ICJ decision.  It did so by canceling whaling for one season and ending the program that the ICJ had said did not satisfy the “scientific research” exemption.  But Japan’s resumption of its whaling program signals that it believes its new program is consistent with the “scientific research” requirement.  I believe that it has the right to resume a new whaling program under the scientific research exemption without violating the ICJ’s judgment.

Of course, it might turn out that the new program is also in violation of the IWC’s “scientific research” provision, but the ICJ decision from 2014 does not require Japan to completely give up all whaling.  Indeed, although Australia sought a remedy from the ICJ requiring Japan to “refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article VIII..,” the ICJ simply noted that Japan was already under this obligation (see para. 246). Therefore, the ICJ explained: “It is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII of the Convention.”  It looks like Japan has done so, and it has now granted more permits under Article VIII.

Australia’s Environment Minister has said that Japan cannot “unilaterally” decide that its new whaling program is in compliance with Article VIII of the IWC.  Actually, legally speaking, Japan can do just that.  The only legal remedy Australia is left with is another ICJ lawsuit.  But that is going to be a problem since as of October 6, 2015, Japan has withdrawn from the compulsory jurisdiction of the ICJ with respect to “any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.”  I think Australia might simply argue that Japan is in violation of the previous ICJ decision, but this will be a tricky argument on jurisdiction (and will take another five years to resolve).

So what’s the lesson here? It is risky to place too many of your eggs in the “international court” basket, even when you are suing a liberal, generally international law-abiding country like Japan (Philippines, take note!). It is too easy to either ignore or simply work around the obligations of international courts in these types of cases. And, importantly, while the cost to a country’s reputation may be severe when it violates or works around an international court order, reputation costs are seldom high enough to actually change a country’s behavior.  (For a very good summary of this whole saga, see Philip Clapham’s essay here).  Australia and New Zealand should probably think about some other remedies besides international court litigation.  And I guess the Whale Wars truce is over.

Events and Announcements: November 29, 2015

by Jessica Dorsey

Announcements

  • The coordinators are pleased to announce the establishment of the Ghent Rolin-Jaequemyns International Law Institute (GRILI). The Institute builds on a long tradition in the area of international law at Ghent University and brings together ca. 30 faculty members and doctoral and post-doctoral researchers. Its activities span the entire realm of public international law, ranging from the law of armed conflict and international human rights law, to the law of the sea, international environmental law, international criminal law, and international economic law, as well as the history of international law. GRILI strives to be a vibrant and recognized centre of academic excellence, generating qualitative and innovative contributions to existing legal scholarship. The Institute combines doctoral research and contract research. Its members provide consultancy to (national, European and international) governmental and non-governmental bodies on issues of international law and contribute amicus curiae briefs to legal proceedings. The Institute frequently organizes lectures, workshops and international conferences. An overview of these events, including the ongoing International Order & Justice Lectures Series, can be found here. For further information on the Institute’s membership, activities, events and research output, please visit our webpage at http://www.grili.ugent.be/ or follow us on twitter (@GRILI_Ugent).

     

Calls for Papers

  • The Bernard and Audre Rapoport Center for Human Rights and Justice at The University of Texas at Austin, School of Law has extended the deadline for submissions for our interdisciplinary conference on the theme “Inequality and Human Rights,” to be held April 7 – 8, 2016. The new deadline is December 13, 2015.
  • The organizers are pleased to announce the call for papers for the Conference “Law Between Global and Colonial: Techniques of Empire“, hosted by the Erik Castrén Institute of International Law and Human Rights on 3-5 October 2016 in Helsinki. The conference will close the four and a half-year period of the Finnish Academy research project on “International Law, Religion and Empire” headed by Martti Koskenniemi, supported by Paolo Amorosa, Mónica García-Salmones, Manuel Jimenez and Walter Rech as research fellows. The conference proposes to discuss the legal languages and techniques through which colonial powers ruled non-European territories and populations throughout the modern age.  The aim of the Conference is to examine in detail the juridical practices and discourses of colonial powers when they exercised their supremacy over colonial subjects and disciplined them. Keynote speakers: Lauren Benton, Isabel. V. Hull, Luigi Nuzzo. The deadline for submitting abstracts is March 1st, 2016. For the full call for papers please refer to the link below. For further information contact the organizers at monica [dot] garcia [at] helsinki [dot] fi or paolo [dot] amorosa [at] helsinki [dot] fi.

Events

  • ALMA – Association for the Promotion of International Humanitarian Law and the Radzyner Law School of the Interdisciplinary Center (IDC) would like to invite you to a special session of the Joint International Humanitarian Law Forum. The session will be held on Monday, November 30, 2015, 18:30, in room C110, Arazi-Ofer Building, IDC Campus, Kanfei Nesharim St., Herzliya. In this session, Adv. Tom Gal will present her article: Applicability of the Law of Occupation to War by Proxy. Tom will discuss the implication of classifying a prima facie non international armed conflict as international, and the legal and practical outcomes regarding the law of occupation and its applicability to non-state armed actors. Adv. Tom Gal is ALMA’s vice chairman and co-founder. Tom is a PhD candidate in International Criminal and Humanitarian Law at the University of Geneva and working as a teaching and research assistant at the Geneva Academy for Humanitarian Law and Human Rights. For this article Tom received the Journal of International Criminal Justice Prize for 2014.  Following the presentations, there will be an open round-table discussion. Please note that the session will be conducted in English. The meeting is free and open to the public. If you wish to attend the meetings of the Joint IHL Forum please register in advance via forum [at] alma-ihl [dot] org.

  • Roger O’Keefe, Professor of Public International Law at University College London since September 2014, will be giving his inaugural lecture entitled: “Curriculum Vitae: A Prequel,” in which he will tease out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet. This takes place on Thursday 10 December. For more information and to register, please click here.
  • Frankfurt Investment Law Workshop: ICSID at 50: Investment Arbitration as a Motor of General International Law? (11-12 March 2016). For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (Frankfurt), Stephan W. Schill (Amsterdam), and Christian J. Tams (Glasgow) – has been a forum for the discussion of foundational issues of international investment law. As ICSID reaches its half-century, the next workshop asks whether and to what extent international investment law and investor-State arbitration are ‘motors of general international law‘? No doubt, investment law in its ‘BIT era’ operates within a framework of general international law – it does not exist, to take up a phrase coined in relation to WTO law, in ‘clinical isolation‘. But how about the reverse effect? Do investment law and investment arbitration have radiating effects? Do they shape international law more generally? The program and more information is available here; for edited collections that have grown out of earlier Frankfurt Investment Law Workshops see here, here and here. If you are interested in participating, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, E-Mail: S [dot] Schimpf [at] jur [dot] uni-frankfurt [dot] de by 28 February 2016.

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.