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Weekly News Wrap: Monday, May 30, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

When A.I. Met R.O.I.

by Chris Borgen

Over the years a few of us have written issues concerning battlefield robots. (See, for example: 1, 2, 3, 4, 5.)  Sometimes, we had links to remarkable videos of quadruped robots stomping through forests. Those robots and videos were made by Boston Dynamics, a company that started from an MIT research group.

Besides its designing quadruped robots, Boston Dynamics gained further renown when, in 2013, it was acquired by Google as part of that company’s broad push into robotics. Just last month, one of Boston Dynamics’ new videos wen viral; it highlighted its two-legged Atlas robot walking indoors, on snowy hillsides, lifting and stacking boxes, and being pushed by a human (and righting itself). Yesterday, Google announced that it was selling Boston Dynamics. Why? And what does this say about all the prognostications about the rise of the robots, either on the battlefield or in the workplace?

At its most basic level, the story here seems to be as much about the difficulties of post-acquisition integration of business cultures and goals as it is about robotics. An article in Bloomberg Business notes:

Executives at Google parent Alphabet Inc., absorbed with making sure all the various companies under its corporate umbrella have plans to generate real revenue, concluded that Boston Dynamics isn’t likely to produce a marketable product in the next few years and have put the unit up for sale, according to two people familiar with the company’s plans.

After Boston Dynamics’ 2013 acquisition, it was made part of Google’s broader robotics initiative, called Replicant. (Query whether naming the division after the murderous androids of Philip K.Dick’s dystopian classic Do Androids Dream of Electric Sheep, which became the movie Blade Runner, was a good idea.) Bloomberg Business explains:

At the heart of Replicant’s trouble, said a person familiar with the group, was a reluctance by Boston Dynamics executives to work with Google’s other robot engineers in California and Tokyo and the unit’s failure to come up with products that could be released in the near term.

While the issue inside of Google was less about the technology of artificial intelligence (AI) than about the return on the investment (ROI) of the robotics company acquisitions, according to Bloomberg Business the Atlas video did cause concern among some of the public relations folks at Google over whether humanoid robots  would be perceived as taking jobs from real human. Plus, as one PR person put it, some people found the robot “terrifying.” (Yeah, that “Replicant” name-choice seems increasingly like a bad idea. At least they didn’t call the business unit the “Terminator Division.”)

Many  have spent time writing and talking about the legal issues related to the use of remotely controlled or autonomous battlefield robots. The immediate issues stemmed from the use aerial drones, of course, but on the horizon has been the possibility of robots being deployed in ground combat (as opposed to in bomb demolition, or other areas where remotely controlled units are already deployed). I am all for lawyers anticipating issues caused by technological change. But before we get there, there are a host of legal issues concerning the transactions that will support the R&D that will develop this technology. With the potential sale of Boston Dynamics to Toyota, it bears noting that the immediate legal issues may have to do more with international business transactions than international humanitarian law.

An Obama-Trudeau Agreement Conceding Canada’s Claim to the Waters of the Northwest Passage?

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington, where he directs the university’s Arctic Law and Policy Institute.]

In a March 10, 2016, op-ed in the Wall Street Journal, Canadian professor Michael Byers (along with U.S. co-author Scott Borgerson), reprises an earlier suggestion aimed at bringing legitimacy to Canada’s claim of sovereignty over the waters of the Northwest Passage through a bilateral agreement between Canada and the United States. The article, titled The Arctic Front in the Battle to Contain Russia, leads with a photograph of Russian President Vladimir Putin and closes with the warning that the United States and Canada must reach agreement on the status of the waters “before it is too late,” because “there is little to stop an increasingly assertive Russia from sending a warship through” the passage. To Professor Byer’s disappointment, the suggestion is unlikely to attract any support in Washington, D.C.

The “Northwest Passage” refers to the sea route that connects the Atlantic and Pacific Oceans across the top of North America, via waterways through the islands lying between Canada’s northern continental coastline and the Arctic Ocean (displayed in red below). The Canadian government asserts that the Northwest Passage is part of Canada’s internal waters, and subject to the nation’s full sovereignty. In fact, in 2009 the Canadian Parliament renamed the waterways the “Canadian Northwest Passage.” Under Canada’s view, no other nation has the right to navigate in or fly over those waters unless Canada consents.

Arctic

[Image courtesy of geology.com]

Canada’s Claim: In contrast to the conflicting maritime claims in the South China Sea, there is no dispute regarding Canada’s sovereignty over the principal islands along the Northwest Passage (the only exception is Hans Island, a tiny uninhabited knoll in upper Baffin Bay near Greenland, which is claimed by both Canada and Denmark). The dispute concerns the status of some of the waterways surrounding the Canadian islands, and whether other nations enjoy navigation rights in those waters. Over the years, Canadian officials and commentators have relied on a variety of theories to support Canada’s claim that the waters of the Northwest Passage are internal waters. They include a claim to historic title over the waters, announced in 1973; a claim based on straight baselines, first established in 1986 (soon after the U.S. Coast Guard Cutter Polar Sea transited the passage); and occupation of the covering ice by Canada’s Inuit people “from time immemorial.”

In a paper prepared by Canada’s Library of Parliament, the Canadian government author cited Donat Pharand, whom the Library’s author describes as “perhaps the most authoritative Canadian legal expert on the question,” for the conclusion that Canada’s historical title argument is weak. By contrast, the author continues, Pharand concluded that the claim based on straight baselines around the offshore islands (a move that Pharand himself advocated in a 1984 article) is Canada’s “best” claim, and “strong enough” in international law. Other states disagree. The United States protested Canada’s claim to straight baselines in the Arctic immediately after the claim was to go into effect on January 1, 1986 (U.S. Department of State, Limits in the Seas: United States Responses to Excessive Maritime Claims, No. 112). That same year, the member-states of what was then the European Community similarly protested that they could not “acknowledge the legality” of Canada’s straight baseline claim (Id.).

In his most recent attempt to provide a legal basis for Canada’s claim to the waters of the Northwest Passage, Byers sidesteps weaknesses in Canada’s claims under existing international law, and advocates instead that President Obama and Canadian Prime Minister Trudeau negotiate a bilateral agreement by which the United States would acquiesce in Canada’s claims, in order to address the two nations’ “shared vulnerability to naval vessels from Russia and other unfriendly nations.”

Byers’ use of a Russian threat to encourage U.S. acquiescence is curious, given his recent statements elsewhere that dismiss, as “hypothetical,” security concerns about Russia raised by others. For example, in a late February 2016 interview by Radio Canada International, Professor Byers argued that Russia has “shown no sign of any inclination towards aggression in the Arctic”; a far cry from the “battle front” posed by an “increasingly assertive Russia” characterization he now offers to spook the U.S. into an agreement.

The Consistent U.S. Position: Recent White House statements make clear that the United States is not going to acquiesce in Canada’s claims to sovereignty over the waters of the Northwest Passage. As reaffirmed in the 2009 U.S. Arctic Region Policy presidential directive, the United States’ position vis-à-vis the status of the Northwest Passage has been clear:

Freedom of the seas is a top national priority. The Northwest Passage is a strait used for international navigation…; the regime of transit passage applies to passage through those straits. Preserving the rights and duties relating to navigation and overflight in the Arctic region supports our ability to exercise these rights throughout the world, including through strategic straits.

Far from signaling a willingness to retreat from its objection to Canada’s excessive maritime claims in the Arctic, U.S. objections to the claims were recently reiterated. Just last week, the Obama White House expressed what might be seen as impatience with excessive maritime claims in the Arctic. In the March 2016 Implementation Framework for the National Strategy for the Arctic Region, the Obama Administration laid out a plan to “promote international law and the freedom of the seas” in the Arctic. The Framework asserts that in the Arctic “the United States will exercise internationally recognized navigation and overflight rights, including transit passage through international straits, innocent passage through territorial seas, and conduct routine operations on, over, and under foreign exclusive economic zones, as reflected in the Law of the Sea Convention” (emphasis added). The Obama Framework goes on to pledge specific steps in the coming years that will include conducting routine Arctic maritime exercises, operations and transits consistent with international law; documenting related U.S. diplomatic communications and Department of Defense freedom of navigation operations; and delivering strategic communications at appropriate opportunities “to reflect U.S. objections to unlawful restrictions in the Arctic on the rights, freedoms, and uses of the sea and airspace recognized under international law; and to promote the global mobility of vessels and aircraft throughout the Arctic region consistent with international law.”

It should also be noted that the kind of bilateral agreement between the U.S. and Canada Byers advocates would have no effect the legal status of the waters under UN Convention on the Law of the Sea (UNCLOS). As a party to UNCLOS, Canada is strictly limited by Article 311 of the Convention in the extent to which it can attempt to alter the effect of UNCLOS by bilateral treaties. Any attempt to do so would have no effect on the navigation rights of Russia, the EU member-states, or any other state. Moreover, any such bilateral agreement would likely be viewed by the other coastal state members of the Arctic Council as inconsistent with the spirit of the 2008 Ilulissat Declaration, in which both Canada and the United States agreed that the “law of the sea,” not bilateral side agreements, provides the relevant rules regarding freedom of navigation in the Arctic.

Ironically, in arguing that a bilateral agreement between the U.S. and Canada is needed to bring legitimacy to Canada’s Northwest Passage claims and provide a legal basis for preventing Russia from sending warships through the passage, Professor Byers has implicitly acknowledged the weakness in Canada’s claim absent such an agreement, while at the same time undermining his otherwise consistent position that Russia poses no threat to security in the Arctic.

Article 87(5) of the Rome Statute – It’s Complicated…But Not Bizarre

by Patricia Jimenez Kwast

[Patricia Jimenez Kwast is completing her doctoral research on wrongful non-cooperation in international law at the University of Oxford, where she also co-convenes the Oxford Public International Law Discussion Group.]

In a recent post on Russia’s announcement that it will not cooperate with the ICC’s investigation into the Georgia situation, Kevin Jon Heller noted his puzzlement as to why Russia did not simply “milk a little goodwill by at least pretending to cooperate with the ICC” and simply “stop cooperating” if incriminating evidence was found. In response, I suggested that “[o]nce Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute.” I commented that “pretending to cooperate or stopping cooperation after agreeing to cooperate does carry legal consequences.”

Article 87(5)(b) of the Rome Statute provides:

Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

I should admit that I posted my comment without giving the precise implications of Article 87(5)(b) much thought at this point (I planned to consider them in a later journal article). I simply recalled Article 87(5) from writing an earlier post on a non-cooperation finding against Sudan. Like Sudan, Russia is a non-party, but the situation in Darfur was referred to the ICC by the SC whereas the Georgia situation is not. So the SC option in 87(5)(b) is irrelevant to questions of Russian non-cooperation. As Heller points out, “the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties.”

But what about my suggestion that Russia can face other steps under Article 87(5)(b) for its non-cooperation if it fails to cooperate after agreeing to do so? In the follow-up post Article 87(5) of the Rome Statute – Bizarre and Possibly Counterproductive, Heller comments:

I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.

My first impulse is to agree entirely with the suggestion that Article 87(5)(b) should be read to apply “only when a non-party-State makes a formal commitment to cooperate with the Court and then breaks that commitment.” A formal commitment was the scenario of initial Russian cooperation that I had in mind, at least in so far as the phrase “or any other appropriate basis” – i.e. other than agreements and ad hoc arrangements – of 87(5)(a) is omitted from 87(5)(b).

However, (more…)

Seeking the Regulatory High Ground: the International Civil Aviation Organization and Commercial Spaceflight

by Chris Borgen

In 1958, Air Force Chief of Staff Thomas D. White wrote: “For all practical purposes air and space merge, form a continuous and indivisible field of operations.” White later coined the term “aerospace” and used it in a Congressional hearing. Later it was used in policy papers to explain why the U.S. Air Force would also have the responsibility for space issues. (William Burrows, The New Ocean, 248.)

The International Civil Aviation Organization, a specialized agency of the UN, has just made a similar giant leap from air into space. Agence France Press reports that in a March 15 speech at the Second Annual Aerospace Symposium (there’s that word again) co-sponsored by ICAO and the UN Office on Outer Space Affairs (UNOOSA), ICAO Council President Olumuyiwa Benard Aliu said:

The International Civil Aviation Organization “recognizes that sub-orbital and outer space flights will foster new tourism and transport markets, and that investments in related research and development remain at a very healthy level,”…

“Personally, as an engineer, I am very excited to see the dream and theory of normalized space flight now becoming such a tangible reality,” he told an aerospace symposium in Abu Dhabi.

In making its case, the agency noted an uptick in the number of spacecraft designs that have made the leap from concept to reality, saying more will follow.

As SpaceNews put it: ICAO is “spreading its wings into commercial spaceflight.” Thinking holistically about the continuum of air and space activities does make sense. Virgin Galactic’s space planes and SpaceX’s and Blue Origin’s returnable, reusable rockets will have significant activities within the atmosphere as well as in space. And, so, we see domestic and international organizations adapting.

That adaptation is itself an interesting story. ICAO’s mandate is focused on aviation. Its vision statement is to “[a]chieve the sustainable growth of the global civil aviation system.” Even its 2014- 2016 strategic objectives make no mention on of space– or aerospace. However, Agence France Press reports that at the ICAO/ UNOOSA conference, the ICAO leadership stated that:

Rules must be put in place soon to ensure safety and security in space, as well as prevent the creation of a patchwork of regulations by individual states..

The agency suggested adapting the existing regulatory framework for aviation, for which the ICAO and national governments are responsible.

ICAO, as it stands, does not have enforcement authority. It studies,  fosters coordination and  develops policies and standards.

While there has been a focus on certain potential future space activities, such as asteroid mining, and their relation to the Outer Space Treaty, is there a need for a new treaty covering launches and activities such as space tourism? In the U.S., there seems to be a concern that too much regulation of the space tourism and orbital launch services could stifle the nascent industry. According to R&D:

Both the Federal Aviation Administration and the recently passed commercial-space competitiveness legislation from the U.S. Congress keep their distance from regulating space tourism, “as long as passengers receive explicit warnings about the hazards and the vehicles have basic safeguards,” the Wall Street Journal reported.

And so there are likely two discussions that will be taking place in the coming months. The first will concern the an institutional question: should ICAO become a norm-setter in regards to space activities? The second will address a set of regulatory issues: do we need a new treaty on aerospace activities, space tourism, and launch activities? Could consultation and coordination among national regulators be enough?

Stay tuned…

Torturing and Raping ‘Brothers in Arms’: International Law and Intra-Party Violence

by Tilman Rodenhauser

[Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva. He worked with different international and non-governmental organizations on the implementation of international humanitarian and human rights law.]

It is uncontroversial that international law prohibits and criminalizes appalling crimes such as summary executions, torture, or rape and other forms of sexual violence. An understudied but increasingly relevant issue is to what extent these international law prohibitions also apply to intra-party violence, meaning if fighters commit such crimes against their brothers or sisters in arms. As I discuss in more detail elsewhere, this question has been raised – but not decided upon – in the ICC’s decision on the confirmation of charges in the Ntaganda case. In this case, Ntaganda is charged with the war crimes of rape and sexual slavery committed by members of the Forces Patriotiques pour la Liberation du Congo against child soldiers in their own ranks. If child soldiers were considered members of armed groups and not civilians, one result could be that violence against these children by their ‘own forces’ falls outside the scope of IHL (the status of child soldiers under IHL has recently been discussed here and here). Likewise, US president Obama reports that Daesh (IS, ISIL, ISIS) summarily executes defectors, and testimony of a German former Daesh member – who recently stood trial in Germany for membership in a terrorist group – confirms that Daesh has a intelligence unit torturing and executing dissidents or deserters in Daesh’s ranks. This post raises the question of whether intra-party violence by armed groups amounts to international human rights law (IHRL) and international humanitarian law (IHL) violations, and should be considered a war crime.

Intra-party violence under international human rights law

If state actors rape, torture, or summarily execute subordinates in their own armed forces, these acts normally constitute crimes under national law as well as IHRL violations. Likewise, similar acts by members of non-state armed groups violate national criminal law. However, it remains somewhat controversial to what extent they also violate IHRL. It is widely agreed that armed groups with quasi-state capacities, such as Daesh, have at least some human rights obligations (for example, the Committee against Torture condemned Daesh’s ‘severe human rights violations’ (para. 11), and UN Special Rapporteur Emmerson considers Daesh ‘bound under international law to respect core human rights obligations’ (para. 30)). In contrast, it is less clear whether at least some norms of IHRL also apply to armed groups that are not ‘state-like’. Some UN expert commissions argued that any non-state armed group must, at a minimum, respect peremptory human rights law obligations (for discussion, see here). Recognizing that armed groups acting beyond state control commit severe human rights violations and not only national crimes or moral wrongs would first be important to reaffirm fundamental rights of all human beings, including those in the hands of armed groups. Second, it may also have legal consequences. While at present regional human rights courts or UN treaty mechanisms do not have jurisdiction over non-state groups, if human rights violations such as torture or extrajudicial executions were considered ‘in violation of the law of nation’, they may fall under national civil or criminal jurisdiction in some states, such as the US Alien Tort Statute (for discussion on non-state actors under the ATS, see here). Yet, at present armed groups’ IHRL obligations remain debated, and condemnations by states in the UN Human Rights or Security Council, human rights experts, or non-governmental organizations are primarily politically significant.

Intra-party violence: an international crime?

While rape, torture, or arbitrary killings could, in certain circumstances, form part of crimes against humanity or genocide, it is difficult to see that intra-party violence alone constitutes an attack against a civilian population or be committed with the intend to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. In contrast, the mentioned acts arguably all violate article 3 common to the four Geneva Conventions and could amount to a war crime under article 8(2)(c) and/or (e) of the Rome Statute of the International Criminal Court.

The Special Court for Sierra Leone (SCSL) discussed the question of whether intra-party violence violates IHL and constitutes a war crime. In the Sesay case, the SCSL argued that ‘the law of armed conflict does not protect members of armed groups from acts of violence directed against them by their own forces’ (para. 1451) because IHL was never intended to criminalize intra-party violence (para. 1453). Prima facie, this approach seems convincing: most IHL rules were developed to regulate hostilities between opposing forces and to protect persons that do not or no longer participate in hostilities against a party to which they do not belong. Upon closer examination, however, Kleffner criticized the Court for ‘rather cursory reasoning’, and Sivakumaran suggested that ‘things are not quite as self-evident as the traditional position suggests’.

Indeed, in my view at least three arguments – especially if considered together – could be raised for arguing that intra-party violence could violate IHL and be prosecuted as a war crime.

First, IHL’s personal scope of application is not as clearly restricted to the relation between adversaries as one may think. Since its early codifications, IHL contains certain rules applicable amongst brothers in arms. Notably, the obligation to respect and to protect the wounded and sick under article 12 and 13 of the First Geneva Convention applies to all ‘[m]embers of the armed forces of a Party to the conflict’. As Pictet pointed out, this obligation applies to ‘friend or foe’. This interpretation is confirmed in article 10(1) of Additional Protocol I.

Second, in light of changing conflict patterns, overly strict textual interpretations should be avoided. As the ICTY has repeatedly argued, IHL should not only be interpreted in accordance with its text and drafting history, but its object and purpose must be considered. Based on this argument, the Tribunal famously suggested that a protected person under the Fourth Geneva Convention is not only defined by nationality but also by ‘allegiance’. More recently, in the Prlic case Trial Camber III applied a similar reasoning to conclude that members of the Croatian Defence Council, who were detained by their own forces because they were perceived as loyal to the enemy, were protected under IHL (paras 608-611).

Third, article 3 common to the four Geneva Conventions, which prohibits all above-mentioned acts, applies to persons who do not, or no longer, take an active part in hostilities. As Kleffner asserts in a recent commentary on the article: ‘No requirement, other than that the person concerned abstains from actively participating in hostilities, conditions the protection under Common Article 3.’ Indeed, the imperative that such persons ‘shall in all circumstance be treated humanely, without any adverse distinction’, suggests that any member of an armed force who is hors de combat falls under the article’s protective scope, no matter which force he or she belongs to. Under this provision, reasons for being hors de combat may include ‘sickness, wounds, detention, or any other cause’. In line with the plain meaning of being hors de combat, it is generally understood that persons only fall under this category if they no longer pose a threat to the adversary and harming them no longer provides a military advantage.

Returning to the cases of torture and summary executions of dissidents and deserters, or rape against child soldiers in an armed group’s own ranks, it can be argued that a person detained and ill-treated by his or her own forces is hors de combat. Likewise, at least during the act of rape, a child soldier is in the hands of the perpetrator and not posing a threat to anyone. As a result, these forms of intra-party arguably fall under the scope of Common Article 3 and could constitute war crimes.

Letter Criticising the UK’s Snooper’s Charter

by Kevin Jon Heller

Along with more than 200 other lawyers and academics, I have signed an open letter to the UK government criticising the UK’s investigatory powers bill — aka the “Snooper’s Charter.” Here is the text of the letter:

The UK’s investigatory powers bill receives its second reading on Tuesday. At present the draft law fails to meet international standards for surveillance powers. It requires significant revisions to do so.

First, a law that gives public authorities generalised access to electronic communications contents compromises the essence of the fundamental right to privacy and may be illegal. The investigatory powers bill does this with its “bulk interception warrants” and “bulk equipment interference warrants”.

Second, international standards require that interception authorisations identify a specific target – a person or premises – for surveillance. The investigatory powers bill also fails this standard because it allows “targeted interception warrants” to apply to groups or persons, organisations, or premises.

Third, those who authorise interceptions should be able to verify a “reasonable suspicion” on the basis of a factual case. The investigatory powers bill does not mention “reasonable suspicion” – or even suspects – and there is no need to demonstrate criminal involvement or a threat to national security.

These are international standards found in judgments of the European court of justice and the European court of human rights, and in the recent opinion of the UN special rapporteur for the right to privacy. At present the bill fails to meet these standards – the law is unfit for purpose.

If the law is not fit for purpose, unnecessary and expensive litigation will follow, and further reform will be required. We urge members of the Commons and the Lords to ensure that the future investigatory powers legislation meets these international standards. Such a law could lead the world.

Here is a Guardian article on the letter. It’s pathetic that Labour intends to abstain on the bill, instead of opposing it. To their credit, both the Lib Dems and the SNP will oppose the bill.

Weekly News Wrap: Monday, March 14, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: March 13, 2016

by Jessica Dorsey

Calls for Papers

  • The Utrecht Journal of International and European Law is issuing a Call for Papers on ‘General Issues’ within International and European law. The Board of Editors invites submissions addressing any aspect of International and/or European law. All types of manuscripts, from socio-legal to legal technical to comparative, will be considered for publication. The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online and should conform to the journal style guide on our website. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information, or for consultation on a potential submission, you can email the Editor-in-Chief at utrechtjournal [at] urios [dot] org. Deadline for submissions is 18 April 2016.
  • The Journal of International Peace and Organisation (“Die Friedens-Warte”) is calling for papers for its upcoming issue of volume 91 (2016). The Journal adapts an interdisciplinary approach to all matters relating to peace research, with international law and political science as lead disciplines. All submissions are assessed through double-blind peer review by two experts in the field. The topic of the upcoming issue’s focus section is ‘Flight and Refuge’. Abstracts may be submitted until 24 April 2016. For more detailed information, please see the Call for Papers or the Journal’s website.
  • It is with great pleasure that the International Society for Military Law and the Law of War and Exeter Law School invite subject matter experts to submit their proposals for presenting a paper at the conference: “The International Law of Military Operations: Mapping the Field” from 21–23 June 2016, Exeter, United Kingdom. Proposals addressing the following topics are particularly welcome: the concept, meaning and scope of the international law of military operations;the place of the international law of military operations within the system of public international law as a potential lex specialis regime; the relevance and impact of particular branches of public international law—such as the law of the sea, air law, the law of international responsibility, international human rights law, the law of State jurisdiction and immunity—on the conduct of overseas military operations and vice versa; the legal framework of information and influence operations, both during and outside of armed conflict; current legal developments and legal challenges facing the conduct of overseas military operations, such as the emergence of hybrid threats; training needs in the area of the international law of military operations and how best to address them. Please submit proposals for papers by 8 April 2016 to opslaw-conference [at] exeter [dot] ac [dot] uk. Proposals should contain the name and contact details of the applicant, the title of the paper to be presented and an abstract not exceeding 600 words. Applicants should also attach a brief CV.
  • The SMU Dedman School of Law’s Tsai Center for Law, Science, and Innovation invites junior scholar submissions of 10,000 – 25,000 words for a workshop on the legal, policy, and ethical aspects of emerging military technology to be held in Dallas, Texas May 27-28.  Junior scholars will receive detailed commentary on their work from established scholars, including Professors R.E. Burnett of National Defense University, Eric Talbot Jensen of BYU Law, Tim McCormack of Melbourne Law School/US Navy War College and Sean Watts of Creighton Law.  For more information, please see the Tsai Center Call for Papers.
  • The Editorial Board of the EtYIL, a peer-reviewed academic journal, is pleased to make a call for papers for the 2017 Edition of the Yearbook. The deadline for article submissions is November 30, 2016. If you have ideas, abstracts or a work in progress that you would like to share with the editorial team please get in touch at ethiopianyearbook [at] gmail [dot] com. For more information about the EtYIL and for submission guidelines please consult the Springer website here.

Announcements

Events

  • The School of Law of the University of Buenos Aires holds a colloquium entitled “Emotions & International Law” in Buenos Aires, Argentina, from 25-26 August 2016. The event is organized by the Permanent Seminar on the Theory and History of International Law and the DECyT Research Project “The feelings in the history of ius gentium”, under the direction of Prof. Emiliano J. Buis. Registration for the conference is now open. For more information please visit the colloquium website or email emocionesDI [at] gmail [dot] com or ebuis [at] derecho [dot] uba [dot] ar. The colloquium is intended to create an opportunity to reflect and debate the conceptual discussion on feelings such as hatred, resentment, compassion, nostalgia, fear, empathy/sympathy, jealously, shame, humiliation, affectation/love, among others, which are considered as possible keys of interpreting international law on a broad sense, involving States and non-State actors, as well as the generation of rules regulating them.
  • 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 upcoming session of the Joint International Humanitarian Law Forum. The session will be held on Wednesday, March 30, 2016, 18:30,  in room C110, Arazi-Ofer Building, IDC Campus, Kanfei Nesharim St., Herzliya, Israel. In this session we will focus on: Autonomous Systems and Autonomous Weapons. Dr. Eliav Lieblich, Assistant Professor in the Radzyner Law School, Interdisciplinary Center, Herzliya (IDC) will discuss his article (Written with Eyal Benvenisti): “Robot Warfare and the Problem of Bound Discretion.” Dr. Liran Antebi, Research Fellow at the The Institute for National Security Studies (INSS) will discuss: “Autonomous systems- will destroy mankind, or save us from ourselves?” Following the presentation, there will be an open round-table discussion. Please note that the session will be conducted in Hebrew. 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.

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.

The Recent Letter of John Kerry and its Impact on the Joint Comprehensive Plan of Action (JCPOA)

by Abdollah Abedini

[Abdollah Abedini is an Assistant Professor of International Law at the Faculty of Law, Farabi College at the University of Tehran.]

On December 19, 2015, John Kerry, the United States Secretary of State, sent a letter to Mohammad Javad Zarif, the Foreign Minister of Iran, on the US government’s firm intention to implement the JCPOA. The letter was issued pursuant to an Act adopted by the House of Representatives (H.R) entitled “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.” Then, the Act included by Congress in the “Consolidated Appropriations Act, 2016.” According to Iranian authorities, the Act contains a provision which may jeopardize the implementation of the JCPOA. In this respect, Mr. Zarif is of the view that: “Acting exactly based on the congressional law, it will definitely mean violation of the JCPOA.”

Having been inspired by terrorist attacks of Paris on November 13, 2015, the Act mainly governs acts of terrorism. According to the Act, an individual with any of the nationalities of the 38 countries (or in the language of the Act, “aliens”) involved in Visa Waiver Program (VWP) may not be permitted to enter the US, when he or she “has been present, at any time on or after March 1, 2011: (I) in Iraq or Syria; (II) in a country that is designated by the Secretary of State…or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism.” It is to be noted that the month before enacting Visa Waiver Act, the H.R adopted an Act on November 19, 2015 entitled “American SAFE Act,” in which there were many provisions similar to those of the Visa Act; however, the point that countries specified by the Secretary of State as States sponsors of terrorism has been added.

Some commentaries suggest this could be a ban for whomever wants to go to Iran, including businessmen, tourists, scientists, educational activists and so on. It is noteworthy that some of the supporters of the VWP raised protest to the Act.

The ambassadors of 28 EU countries, for instance, have declared in a common note: “such indiscriminate action against the more than 13 million European citizens who travel to the U.S. each year would be counterproductive, could trigger legally-mandated reciprocal measures, and would do nothing to increase security while instead hurting economies on both sides of the Atlantic.” It is noteworthy that under a Regulation adopted in 2013, the EU may take into account appropriate measures on the different treatment taken by countries which have reciprocally waived visa requirements for the specific time.

Kerry’s letter, in such circumstances, is a response to Iran’s concerns on the future of the JCPOA in general, and its implementation in particular. The piece, therefore, is sought to indicate whether and to what extent the letter will impact on the JCPOA.

The Letter as a Unilateral Declaration

Kerry’s informal letter, which has been neither printed on the Secretary’s official letterhead, nor found on the US Secretary of State’s official website, has been published by many other websites on the Internet. However, the US Secretary of State’s spokesperson, John Kirby has observed officially: “the Secretary noted the concerns by Foreign Minister Zarif. You saw that he addressed that in his letter. There’s no violation of the JCPOA or our commitments by dint of this new legislation.”

The International Court of Justice (ICJ) in one of its most renowned cases, the Nuclear Tests case, upheld the view that: “declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.”

Hence, without a doubt, the letter can be categorized as a unilateral act under international law. In fact, the letter is a unilateral declaration, as a form of a unilateral act that obliges the US not to give effect to the Act to the extent that jeopardizes the implementation of the JCPOA. In addition, the ICJ has pointed out: “…interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.”

The International Law Commission, in “Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations” adopted in 2006, points out: “any unilateral behavior by the State producing legal effects on the international plane may be categorized as a unilateral act.”

Moreover, a unilateral declaration must be issued by authorized officials explicitly and publicly. As established in international law, foreign ministers’ statements, by virtue of their functions, may create obligations for their respective countries. The US Secretary of State has explicitly maintained in the letter that: “we remain fully committed to the sanctions lifting provided for under JCPOA.”

Giving assurance to his Iranian counterpart, John Kerry affirmed the US intention to JCPOA commitments. In another part of the letter, he points to the US Government’s power to waive the Act and confirms that: “the recent changes in visa requirements passed in congress…will not in any way prevent us from meeting our JCPOA commitments…” The letter indicates that the US Government would not permit potential impediments which may be created by the Act to affect in the implementation of the JCPOA.

On the other hand, some Congressmen have been dissatisfied and have observed that: “we…express our strong opposition to your commitment to waive a newly-enacted reform to the Visa Waiver Program that was clearly intended to cover individuals who have traveled to Iran in the past five years.” Unfortunately, it seems that enacting the Visa Waiver Act and the following reactions do not signify an optimistic future for the JCPOA implementation.

Impact of the letter on the future of the JCPOA

The Conclusion of the JCPOA in an atmosphere which there was little hope to reach an agreement made “a fundamental shift in [the UN Security Council] consideration of this issue, and its desire to build a new relationship with Iran strengthened by the implementation of the JCPOA and to bring to a satisfactory conclusion its consideration of this matter.”

In fact, the JCPOA has satisfied what its parties, namely, the E3+3 and Iran, hope for. In this situation, some actions taken by some parties, such as enacting Visa Waiver Act, could frustrate all endeavors to reach JCPOA aims. However, Kerry’s letter is a sign that the US government intends to continue to implement the JCPOA. Some of the letter’s sentences could be interpreted as an hindrance to this path. Thus, it is necessary to focus on the related words of the letter.

When it comes to the Kerry’s letter, he states: “we will implement them [JCPOA commitments] so as not to interfere with legitimate business interests of Iran.” He suggests some solutions and further observes that: “to this end, we have a number of potential tools available to us, including multiple entry ten-year business visa, program for expediting business visa, and the waiver authority provided under the new legislation.”

One may well ask what does he mean by “legitimate business interests”? And who should determine such “legitimate business interests”? According to the letter itself, the answer would be that the US would determine what the business interest is and whether it is legitimate. The logical follow-up question regards the exact meaning of the legitimacy, whether as a point of fact or law.

Generally speaking, these are the issues which would arise during the implementation of the JCPOA. It is proposed that JCPOA parties bring these questions to the Joint Commission contemplated by JCPOA to resolve them, before endangering the JCPOA’s implementation. The JCPOA has established a dispute resolution mechanism in its Annex IV under which a Joint Commission is comprised of respective parties, (China, France, Germany, the Russian Federation, the United Kingdom, and the United States, with the High Representative of the Union for Foreign Affairs and Security Policy, and Iran) would consider any kind of disputes concerning JCPOA. Section 2 of Annex IV states the relevant functions of the Joint Commission: “review and consult to address issues arising from the implementation of sanctions lifting as specified in this JCPOA and its Annex II’ and ‘consult and provide guidance on other implementation matters that may arise under the JCPOA.”

The JCPOA, pursuant to the adoption of the UN Security Council resolution 2231, is considered as a part of international peace and security which requires unanimity as well as leaving any unilateral approach of all parties, particularly the US as a key partner.

Can/Will President Sanders Withdraw the U.S. from the WTO?

by Julian Ku

It’s been a rough U.S. presidential campaign season for free traders.  Very few of the candidates are willing to voice broad support for free trade and free trade agreements.  Populist candidates like Senator Bernie Sanders and Donald Trump have made some pretty ugly noises about either violating or withdrawing from existing trade agreements.

Although Donald Trump’s proposal for 45% tariffs on China would violate WTO obligations (as Roger detailed here), it is Senator Bernie Sanders who might be more radical on free trade.  Although he doesn’t mention it much on the campaign trail, Senators Sanders (as a congressman) has introduced bills in Congress that would have withdrawn the U.S. from the World Trade Organization.

Today, Congressman Bernie Sanders will urge his colleagues in the U.S. House to support a plan to have the United States withdraw from the World Trade Organization.

Sanders acknowledges that the proposal probably won’t pass, but he hopes it will stimulate debate over the nation’s growing trade deficit.

Here a youtube video of his speech defending his proposed bill to withdraw the U.S. from the WTO.

What is interesting is that if elected President, Sanders could probably unilaterally withdraw the U.S. from the WTO with six months notice pursuant to Article XV of the Agreement Establishing the WTO (An earlier version of this post erroneously referred to Article XXXI of the WTO Agreement, which is really the 1947 GATT Agreement. Thanks to the commenter below for the correction).  I think that a President has broad delegated authority to terminate such agreements, although as I noted back in 2008, it is a bit uncertain whether Congress must also approve.    Still, given that the president arguably has such powers, shouldn’t someone ask Senator Sanders whether he still wants to withdraw the U.S. from the WTO, and if so, would he promise to do so if elected?  I have a feeling he has backed off this position (hopefully!), but it is certainly worth asking!

Transcript of Haiti Cholera Appeal Hearing

by Kristen Boon

A transcript is now available for the Haiti Cholera Appeal:    Georges, et al. v. UN Oral Argument_ActiveUS(153242982)_ActiveUS(1)-Final

In addition, the audio recording is available here.

Of particular note were questions from the judges that addressed (i) whether domestic courts should have the right to determine the adequacy of remedies in tort actions involving the UN, (ii) why states parties have not done more to insist the UN create the mechanism envisioned by Art. 29 of the CPIUN, (iii) how this would be dealt with in the US if it had been the US army that had introduced cholera; and (iv) whether an ICJ advisory opinion is possible.

For my take on this case and the scope of UN immunities in mass torts cases, see  The UN As Good Samaritan:  Immunity and Responsibility,  in the most recent volume of the Chicago Journal of International Law.