Events and Announcements: November 2, 2015

Announcements International Organisations and the Rule of Law: Perils and Promise, Victoria University of Wellington Faculty of Law, New Zealand, 7-8 December 2015. This symposium will take a fresh look at the resources that international law possesses to ensure that international organisations (IOs) are held accountable for their errors and excesses, while remaining relevant and effective in the face of ever...

I've received a few emails over the past couple of days wondering why I have not joined the now 500 scholars at UK universities who have pledged to boycott Israeli universities. The answer is that although I wholeheartedly support BDS in its economic and cultural forms, I am much more ambivalent about academic BDS. I agree with the boycotters that Israeli universities...

I have been curious to see how China would respond to yesterday's UNCLOS Annex VII Arbitral Tribunal's ruling finding it has jurisdiction to hear the Philippines South China Sea related claims.  Well, the Chinese Ministry of Foreign Affairs was ready with this blistering response: Q: The Arbitral Tribunal established at the request of the Republic of the Philippines rendered the award...

It's been a rough week for China's South China Seas policy. In addition to facing a US Freedom of Navigation operation near one of its artificial islands, the arbitration tribunal formed under the United Nations Convention on the Law of the Sea has decided that it has jurisdiction to proceed to the merits on the Philippines' legal challenge to certain...

[Ardevan Yaghoubi is a Ph.D Student at Princeton University's Department of Politics.] 
"As we speak, China wants to write the rules for the world’s fastest-growing region. That would put our workers and our businesses at a disadvantage. Why would we let that happen? We should write those rules."  - President Obama, State of the Union Address, January 20, 2015
Proponents of the recently-concluded Trans-Pacific Partnership (TPP) typically argue that the agreement will do one of two things: increase economic growth through exports and jobs, or advance favorable geopolitical and national security objectives. The economic perspective on the agreement sees a rational-choice model of expected economic utility; the geopolitical frame emphasizes the TPP’s role in creating reputation, prestige, and soft power. But the strictly material and abstractly ideational explanations of the TPP both miss an important feature of the agreement: that the TPP is designed to create norms that spread across the international system. It is not only intended to bring about economic benefits or directly buttress American allies in Asia to counter a rising power. In the study of international politics, this process is called norm diffusion. I argue that understanding norm diffusion helps to articulate the implicit theory behind President Obama’s metaphor of “writing the rules”. By melding insights about norm diffusion to the frame of a traditional trade agreement, the TPP is a unique and noteworthy innovation in international law and institutionalism. Whatever one’s thoughts about the merits of the TPP, the basic hypothesis undergirding its intended effects deserves greater clarity. In this post, I explore the logic of norm diffusion in the TPP: Is norm diffusion an objective of the TPP? If so, how exactly is the process of diffusion expected to occur? And what obstacles might block the reproduction of the TPP’s rules? I will address these questions in turn. Is the TPP Really About Norm Diffusion? Alongside their traditional role of merely cutting tariffs and lowering trade barriers, today’s FTAs are a tool of international economic competition: the rules contained in these agreements regulate and shape industries from agriculture to manufacturing to finance. It is hardly controversial, then, that FTAs will tend to reflect the economies and economic priorities of the states who have negotiated them. States don’t have total latitude in determining the content of FTAs, since WTO rules still exert substantial influence. But there are many parts of the world economy where the WTO’s influence is limited. What norms are these? Well, the TPP text agreed on in Atlanta contains chapters regulating norms spanning the right to organize, the illegal trade of wildlife and environmentally protected species, generic medicines, copyright infringement, 3D printing and manufacturing, financial investments, state-owned enterprises and government procurement, and of course, tariffs and non-tariff barriers to trade. But the TPP came into being at the end of a two-decade period in which American influence in the global trade system has been waning. While the number of new agreements negotiated has increased dramatically since the millennium, the U.S. has signed just a handful of notable new FTAs: with Korea (2012), Dominican Republic-Central America or DR-CAFTA (2005), Singapore (2004), Chile (2004), and Australia (2004). Taking stock of the total number of agreements by region, the U.S. lags behind the Asia Pacific, South America, Eurasia, Europe, the Middle East, and Africa. Seen against this economic and geopolitical backdrop, the necessity of the TPP from an American policy perspective should be evident: it represents approximately 40% of global GDP across North and South America and the Asia Pacific, and nearly one-third of global trade. Without it, the U.S. loses leverage and potential economic opportunities in a century where its percentage share of the global economic pie will continue to shrink. It also brings post-war allies, like the U.S. and Japan, closer together as a key element of the “pivot to Asia”, while integrating non-allied states like Vietnam and Malaysia. Many geopolitical analyses of the TPP end with vague references to “soft power” or U.S. national security interests and little explanation of how the TPP will actually further those aims. What these narratives miss is that the logic of the agreement is based on a theory of norm diffusion. In its essence, norm diffusion (or sometimes called norm “cascade”) refers to “an active process of international socialization intended to induce norm breakers to become norm followers”. International relations scholars have given careful attention to the way in which norms and rules circulate and achieve legitimate compliance in international politics and international law. But what is striking about the TPP is that its architects are themselves conscious of these socialization effects. For instance, here is a representative statement by USTR Ambassador Michael Froman writing in Foreign Affairs:

I'm delighted to announce that -- at long last -- Oxford Bibliographies Online has finally published an annotated bibliography on the Nuremberg Trials that I co-authored with Catherine Gascoigne, an utterly brilliant young PhD student in law at Cambridge. The bibliography covers both the IMT and my beloved NMTs; here is the introduction: The “Nuremberg trials” generally refers to a series of...

I  have finally made my way through the OTP's 162-page request to open an investigation into the situation in Georgia. I hope to write a few posts in the coming days on various aspects of the request; in this post I simply want to note my surprise that the OTP has not alleged that Georgia is responsible for two interrelated war crimes:...

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled "The Weaponisation of Human Rights." More than 100 people showed up, and I was privileged -- along with Heidi Matthews, a British Academy postdoc at SOAS -- to respond to Chase's comments. Here is Chase's description of the talk: Human rights, once a rallying cry to free prisoners of...

Announcements The EIUC and KU Leuven are launching a new MOOC (massive open online course) on the EU and Human Rights. A short description from their website: "Whether you are an EU citizen or not, this course concerns you! The EU is a major global actor in the field of human rights. EU treaties state that human rights are a fundamental...

[Andrés Guzmán Escobari is a former Bolivian diplomat, Master in Conflict Resolution and Governance of the University of Amsterdam and associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.] The ICJ recently delivered its judgment on Chile’s preliminary objection to its jurisdiction in the case “Obligation to negotiate access to the Pacific Ocean”, initiated by Bolivia in...

Yesterday, my colleague Chris Borgen posted ASIL's call for submissions for the 2016 Francis Lieber Prize, which is awarded annually to one monograph and one article "that the judges consider to be outstanding in the field of law and armed conflict." I think it's safe to say that the Lieber Prize is the most prestigious award of its kind. But there's a catch: you are...

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.] As Kevin noted last week, the ICC Prosecutor has officially requested authorization to proceed with an investigation into alleged crimes committed during the 2008 Russo-Georgian war. Anticipated by ICC observers for some time, the announcement has prompted speculation about the prospects of a full-blown investigation involving a P5 country (Russia), as well as the geopolitical ramifications of the ICC finally leaving Africa. In this post, I would like to focus on a discreet legal issue with ramifications that may turn out to be equally important in the long run: the Prosecutor’s charges relating to crimes against peacekeepers and why this matters for the future of peacekeeping operations. In her submission to the Pre-Trial Chamber (PTC), the Prosecutor identifies two primary sets of war crimes and crimes against humanity that fall within her jurisdiction. In addition to the forcible displacement and persecution of ethnic Georgians, the Prosecutor plans to investigate “intentionally directing attacks against Georgian peacekeepers by South Ossetian forces; and against Russian peacekeepers by Georgian forces (Request PTC, para. 2).” Under the ICC Statute, attacks on peacekeepers are criminalized directly as war crimes. The two relevant provisions are articles 8 (2) (b) (iii) and 8 (2) (e) (iii), which apply to international and non-international armed conflict respectively: Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict (emphasis added). If, as is expected, the Pre-Trial Chamber grants the request to open an investigation, the key question facing the Prosecutor will be whether the peacekeepers in the 2008 conflict were really just that – peacekeepers? While this may seem like an unusual question, it should be emphasized that the facts are highly unusual, too. The Joint Peacekeeping Force (JPKF) in South Ossetia, which was established by the 1992 Sochi Agreement, comprised three battalions of 500 soldiers each provided by Russia, Georgia and North Ossetia. Though not formally a UN-mandated mission, it appears both the Security Council and the Organisation for Security and Cooperation in Europe recognized the JPFK as a peacekeeping operation (para. 149). However, the key point is that, unlike UN-mandated peacekeeping, the peacekeepers in South Ossetia were nationals of two of the three parties to the 2008 conflict: Russians and Georgians (South Ossetians were not allowed on the premises of the JPKF). In other words, the ICC Prosecutor’s charges relate to attacks against Russian and Georgian troops – deployed as part of a peacekeeping mission – in the context of an armed conflict where Russian, Georgian and South Ossetian troops fought against one another. Why does this matter? Although it appears that peacekeeping involving parties to a conflict is not prohibited (e.g. the UN does not appear to have an explicit policy against it, even if peacekeeper nationality has, in the past, been a contentious issue in UN operations), the composition of the JPKF in South Ossetia raises important questions about the application of international law to peacekeeping, and in particular the applicability of international humanitarian law and international criminal law to the attacks that the ICC Prosecutor plans to investigate. Irrespective of whether such peacekeeping is allowed ‘on paper’, I argue that the unusual composition of the JPFK will likely negate some protections that peacekeepers normally enjoy. The key legal issue that is likely to come before the ICC is who is entitled to peacekeeper status under international law? Although there is no international convention on peacekeeping (the UN Charter is silent on the matter as well), the rules applicable to peacekeeping are derived from over half a century of military practice, and it is generally accepted that three core principles apply: 1) consent of the parties, 2) impartiality and 3) non-use of force beyond self-defence. While there is much debate about the scope of these three principles, especially in recent peace operations, for the purpose of the Georgia investigation the important question will be whether the impartiality criterion was met.