Weekend Roundup: March 30 – April 5, 2013

by An Hertogen

This week on Opinio Juris, we brought you the latest round in the Goodman-Heller debate on capture v kill, in which Ryan Goodman responded to Kevin’s comments on this blog a few weeks ago.

Kevin started his week by pointing to turmoil in Sweden’s prosecution of Julian Assange, following the resignation of the prosecutor and the decision by one of his accusers to fire her lawyer. He also addressed the ICC’s Pre-Trial Chamber’s decision to refer Chad to the Security Council over its non-cooperation in the execution of the ICC’s arrest warrant of Sudan’s President’s Omar al-Bashir. Kevin saw this as a risky move that can threaten the Court’s legitimacy if the Security Council does not act. Kevin also recommended a new casebook on international humanitarian law.

Julian criticized the glacial pace of progress of the ICJ proceedings, arguing that in the case between Australia and Japan on whaling it did nothing to cool the dispute. He also urged the NRA to hold its fire over the Arms Trade Treaty, arguing that the treaty is too weak to affect the right to bear arms.

Deborah hailed new guidelines for Armed Private Security Companies doing business with the UN as significant, and asked our readers for their opinions.

At the end of the week, we hosted a symposium by the NYU Journal of International Law and Politics on Professor Jenia Iontcheva Turner’s article Policing International Prosecutors.  In her comment, Professor deGuzman provided two reasons why international criminal courts should err on the side of the defendant when balancing his right to a fair trial with the rights of victims and the broader international community. Sonja Starr argued that the fairness of the trial is not just one factor in the analysis but rather the threshold question. Kevin likewise argued that the accuracy of the trial is essential, and expressed concerns about the article’s rhetoric. Alex Whiting in turn feared that a balancing approach might make the courts too willing to find procedural misconduct, particularly when their are differences in litigation culture between the judges and the defence counsel. These cultural differences were also raised by James Stewart who credited the article with changing his mind about prosecutorial misconduct.  Professor Turner’s response to the comments can be found here.

One of the commentators in the symposium, James Stewart, also provided a guest post in two parts (12) over the ICTY’s approach to complicity in the Perišić judgment.

Many of you are probably at ASIL’s Annual Meeting. In preparation, Jessica highlighted some of the main events. Chris posted about the newly establish Space Law Interest Group of which he is the co-chair and Deborah shared her notes on the discussion on targeted killing.

Finally, as always, we listed upcoming events and announcements and summarized international law related news in our weekday news wraps

Many thanks to our guest contributors and have a nice weekend!

Weekend Roundup: March 23-29, 2013

by An Hertogen

This week on Opinio JurisPeter wrote about the unlikely advocates of international law in amicus briefs submitted in the gay marriage cases before the Supreme Court this week.

Julian was disappointed that despite all the reporting on the Amanda Knox retrial, nobody in the media had bothered to read the US-Italy extradition treaty. Kevin also took aim at the media’s lack of knowledge of international law. He argued that recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare grossly overestimates the likelihood that a hacker can legally be killed.

Further on cybersecurity, Roger argued that new restrictions on US federal agencies’ purchase of IT equipment produced in China by companies affiliated to the Chinese government are compatible with the US’ WTO obligations, because of the self-judging nature of the national security exceptions in the GATT and the GPA.

We also hosted a book symposium on Economic Foundations of International Law by Eric Posner and Alan Sykes. In his comment, Andrew Guzman focused on why states should accept more delegation to international institutions. Emilie Hafner-Burton and David Victor discussed how the book helps to identify new areas of international law open to empirical research. Rachel Brewster asked whether a liability rule is always the best option to operate remedies under international law, and Steve Charnovitz disagreed with some of the book’s analysis of the WTO. The authors response to the comments can be found here.

In other posts, Julian updated us on the appointment of a second arbitrator in the Philippines-China arbitration under UNCLOS, and James Hathaway’s  guest post announced the Summary Conclusions of the Roundtable on the Future of Refugee Convention Supervision, proposing the establishment of a Special Committee of Experts to oversee compliance with states’ obligations under the Refugee Convention.

If you’re keen to read more over what for many of you will be the long Easter weekend, check out Deborah’s post about her Foreign Policy article, co-authored with Phil Carter, Obama’s first Deputy Assistant Secretary of Defense for Detainee Policy, on the use of criminal courts in counter-terrorism efforts. Ken also recommended the series on contemporary issues of IHL over at the ICRC’s blog Intercross. And, as usual, we had our weekday news wraps, which celebrated its first birthday this week.

Finally, we also listed upcoming events and announcements, and Anupam Chander provided a guest post on the newly established ASIL Interest Group on International Law and Technology that will meet after next week’s ASIL Annual Meeting.

Many thanks to our guest contributors and enjoy your (long) weekend!


Weekend Roundup: March 16-22, 2013

by An Hertogen

This week on Opinio Juris, CIA drone strikes remained in the spotlight. Continuing on last week’s post, Kevin tried to get to the bottom of the CIA’s involvement in drone strikes and whether it is sufficient to trigger criminal liability, which sparked a long discussion in the comments with John C. Dehn. Deborah welcomed news reports about a possible transfer of the CIA’s programme to the Defense Department, whose targeting authority she argued is better constrained. She added, though, that the organizational shift would not solve all problems unless transparency improves to ensure political accountability.

We also kept you up-to-date with recent developments in international law. Kristen reported on the decision of the parties to the Convention on International Trade in Endangered Species to expand the scope of the Convention, and Kevin wrote about the latest episode in the battle between Libya and the ICC over al-Senussi. And of course, there were our daily weekday news wraps.

In other posts, Duncan wondered whether high school cyberwar teams include legal advisors; Ken upheld his yearly tradition of posting Joan of Arc’s Declaration of War in 1429; and Roger posted the Google rankings of the most influential international law journals.

If you need inspiration on topics for articles to submit to these journals, check out our events and announcements for a collection of conferences and calls for papers.

Have a nice weekend!

Weekend Roundup: March 9-15, 2013

by An Hertogen

Our main event this week was a book symposium on Curtis Bradley’s new book “International Law in the US Legal System“. On the first day, the symposium focused on treaties with comments by David Moore and Jean Galbraith.  Attention turned to international delegations on day two. Julian welcomed the book’s attention to questions of constitutional structure, but disagreed that accession to the International Criminal Court would not create delegation problems. Kristina Daugirdas asked whether the presumption of non-self-execution as a solution to questions of delegation could make it harder for the US to comply with its international obligations. On day three, Bill Dodge and Mark Weisburd discussed the position of customary international law in the US legal system. Finally, Mike Ramsey and Ingrid Wuerth discussed war powers and international law, and Curtis Bradley responded to all comments.

All commentators wholeheartedly recommended the book, so maybe it can follow in the footsteps of Duncan’s book “The Oxford Guide to Treaties“, about which we had a symposium late last year, and win an ASIL Certificate of Merit.

Deborah asked whether the US needs a new authorization to use force against the new jihadist groups in North Africa and the Middle East that are only distantly related to the “original” Al Qaeda, or whether other options that are already legally available would be sufficient.

Our bloggers have been active lately: Kristen Boon posted the abstract to her essay on lex specialis and the responsibility of international organizations, while Roger’s teaching took him to the Philippines where he witnessed first hand how microfinance had helped transform a mountain village.

Speaking of affecting change,  if this post on Lawfare, pointed out by Ken, is correct, Kevin may have achieved every academic’s dream of our work (a blog post even!) affecting government policy. In a follow-up post, Kevin argued why a CIA drone operator cannot invoke the public authority defense. In other posts, Kevin continued the debate on the power to capture or kill  with his response to Ryan Goodman’s rebuttal over at Lawfare. Kevin also posted about Philippe Sands’ decision to quit the LibDems over their support to the UK’s new justice and security bill, counted the legal errors in an article in the Jerusalem Post reporting about the request by an Israeli law firm to the ICC Prosecutor to open an investigation against the Palestinian President Abbas and nine Hamas members, and updated us on Libya’s latest procedural steps in slowing down the admissibility challenge.

As every week, we listed events and announcements  and provided you with daily weekday news wraps.

Many thanks to our guest contributors and have a nice weekend!

Weekend Roundup: March 2-8, 2013

by An Hertogen

This week on Opinio Juris, Kevin argued why the OPCD’s small victory over the return of documents seized by Libya may be important in the longer run because of its consequences for Libya’s admissibility challenge. He also quoted from Libya’s latest submission on the admissibility challenge to argue why it should lose the challenge. Shifting his focus to the US, Kevin asked three questions about AG Holder’s response to Rand Paul.

Tactics were the key word for Julian this week. He assessed two proposals for legal tactics that the US could use to win the cyberwar with other countries, and discussed Argentina’s tactics in the NML v. Argentina sovereign bond litigation.

Kristen Boon pointed out topics of interest at the Human Rights Council’s 22nd session, while Ken Anderson flagged the ongoing debate over at Lawfare and at Jens Ohlin’s Lieber Code about Ryan Goodman’s EJIL article on the power to kill or capture enemy combatants, as well as Jens’ response essay on SSRN.

We also had a wide range of guest posts this week. In a post that unsurprisingly attracted a lot of comments, Sigall Horovitz described how Israel can legally avoid, at least for seven years, an ICC investigation into the West Bank Settlements.

William Dodge updated us on Samatar’s certiorari petition to the US Supreme Court with a post summarizing the who, what and exceptions to state, status-based and conduct-based immunity.

We hosted a symposium on the latest issue of the Harvard International Law Journal. The first article, by Ginsburg, Elkins and Simmons, dealt with an issue that also got some attention on the blog last week: the impact of international human rights treaties on domestic constitutions. Christopher N.J. Roberts’ comments wondered whether the UDHR can be considered a template for domestic changes and what the impact of domestic legal culture is on the understanding of similar rights. Tom Ginsburg responded here.

The second article of the symposium was Natalie Lockwood’s article on International Vote Buying, for which William Burke-White provided the response. He questioned whether a legal prohibition on vote buying would be effective, but applauded the article for its re-examination of the role of economic power in the international community. Natalie’s response addressed whether vote buying and diplomacy can be separated as well as the difference between economic coercion and vote buying.

The third article discussed was Ashley Deeks’ one on Consent to the Use of Force and International Law Supremacy. Comments were provided by Opinio Juris’ own Duncan Hollis. He responded in two posts: one on issues of international law supremacy and another on whether international law should be able to invalidate consent if it manifestly violates the domestic law of the consenting state.

The final article was Moira Paz’ The Failed Promise of Language Rights: A Critique of the International Language Rights Regime, with Efrat Arbel as commentator. Moira’s response is here.

As always, we also provided a listing of events and announcements and weekday news wraps.

Many thanks to our guest contributors and have a nice weekend!


Weekend Roundup: February 23 – March 1, 2013

by An Hertogen

This week on Opinio Juris, it was too early for Talk Like a Pirate Day, but we certainly talked a lot about pirates. The reason of course was the Ninth Circuit’s decision to agree with Japanese whalers that the Sea Shepherd’s activities amount to piracy. Julian wasn’t fully confident that “private ends” are broader than financial enrichment, and Kevin strongly disagreed with Judge Kozinski’s argument that a “rich history” supports the conclusion that all acts not taking on behalf of a state are for private ends. In two later posts, Kevin responded to comments disagreeing with his claim that politically-motivated acts are traditionally excluded from the definition of piracy, and added his final word (for now). Kevin also described another problem with qualifying the Sea Shepherd’s actions as piracy: that some states -not including the US- do not consider the area where the events are taking place as part of the high seas, but rather as under Australia’s sovereignty.

Kevin also revisited Libya’s admissibility challenge in the Saif Gaddafi case. Considering Libya’s decision to let the trial in Zintan go ahead before the trial in Tripoli on the same charges as the ICC case, he argued that Libya is unable to obtain custody over Saif, and followed up with a post asking whether Libya is even willing to prosecute Saif.

Following a call by Chinese lawyers for the Chinese government to ratify the ICCPR, Julian asked whether international human rights treaties are a suitable vehicle for domestic legal reform. His post was censored from his China Weibo account, on which you can read more here. Roger addressed Julian’s question with a post on a recent empirical article concluding that there is no clear evidence that the leading international human rights instruments have influenced domestic constitution writing, although he argued that the evidence shows that the agreements may have had an impact during their drafting process.

Jennifer Trahan provided a guest post on recent speeches by former State Legal Advisor Harold Koh on the Obama administration’s policy towards the Rome Statute and the ICC.

Ken advertised his C-SPAN Book TV interview, which will air again today, and can also be watched online here. Also competing for your attention this Saturday is the Annual Conference of the Duke Law, Ethics, and National Security Center, which is live-streamed on the web. If more reading is what you’re after, Roger posted a link to his new article applying the Broken Windows Theory to international corruption, and Duncan recommended a series of draft papers on the ILC’s recent Guide to Reservations that are made available on EJIL:Talk! in preparation of a special EJIL issue on the topic. He also looked forward to the return of IntLawGrrls to the blogosphere this coming International Women’s Day. If a picture is worth a thousand words, this cartoon on Drone Heroes, posted by Kevin, says a lot more than that.

Finally, as always, we posted our weekly events and announcements and the weekday news wrap.

Have a nice weekend!