Weekend Roundup: May 26 – June 1, 2012

by An Hertogen

This week on Opinio Juris, Roger Alford marked Memorial Day with the Battle of Blenheim poem, and Deborah Pearlstein weighed in on the discussion about Chris Hayes’ controversial suggestion that the label of “hero” is too often used to refer to US service personnel.

Deborah also posted a snippet from the NY Times report on Obama’s “Kill List” in the conflict with al-Qaeda. A few days after the report was published, Julian Ku asked whether the mild fallout can be seen as a solidifying of the legal framework for the US War on Terrorism. Prompted by a second NY Times report, this one on Obama’s authorization of cyberattacks against Iranian nuclear facilities, Julian questioned whether the President has the constitutional authority to do so.

Julian also looked forward to the hearings on the US ratification of the UN Convention on the Law of the Sea and posted a list of questions by Professor Craig Allen.

Kevin Jon Heller discussed the conviction in Pakistan of Dr. Afridi who ran a fake vaccination program to collect DNA evidence to assist the CIA in its search for the bin Laden family. Kevin suppressed snarky comments about Moreno-Ocampo’s new appointment as FIFA’s chief investigator into allegations of match-fixing and corruption. He was shocked to read that Yale University offered a course by Gen. Stanley McChrystal in which students could only take notes on a non-attribution basis, which led to a discussion whether the Chatham House Rule belongs in the classroom. Kevin also argued that the Special Court for Sierra Leone’s decision to sentence Charles Taylor to 50 years’ imprisonment is disproportionate, given that Taylor was not found guilty on the basis of ordering the crimes or of joint criminal enterprise.

Roger Alford updated us on the steps taken by the plaintiffs to enforce the Ecuadorian judgment against Chevron through the Ontario Superior Court in Canada. A guest post by Stephen A. Pitel discussed the relevant precedents in Ontario law.

This week we hosted a symposium on three articles from the latest issue of the Virginia Journal of International Law, introduced here. The first article was Andrew Woods’ Moral Judgments & International Crimes: The Disutility of Desert. Jonathan Barron commented how international criminal law is in transition from second-party to third-party punishment and Adil Haque questioned whether Andrew’s suggestions would make the international criminal law regime no longer a criminal regime or no longer a legal regime. Jens Ohlin debated Andrew’s assumption that international criminal law is fundamentally retributive and his application of social science insights about the power of moral sentiments to crowd out consequentialist calculations. Andrew’s response can be found here.

The second article, by Alvaro Santos, discussed how developing countries can carve out regulatory space in the WTO. Robert Howse’s comments described how NGOs are increasingly challenging the conventional wisdom on the limits on regulatory autonomy that is perpetuated by the lack of independent expertise and by uncritical journalists. Andrew Lang emphasized the need to make the WTO dispute settlement bodies more receptive to developing countries’ arguments. Alvaro’s response can be found here.

Jason Webb Yackee’s article on Investment Treaties and Investor Corruption: An Emerging Defense for Host States? was third in the symposium’s line-up. Andrea Bjorklund’s and Daniel Litwin’s criticized the article’s focus on the “supply side” of corruption and its disregard of the demand side of corruption within the state and his preference to deal with corruption as a jurisdictional issue. Jarrod Wong raised similar issues in his comments and questioned whether a defense had already crystallized in international law. Jason’s response is here.

Roger’s post on the three international law scholars in the list of “most-cited law reviews of all time” may inspire you in your own scholarship, in which case you may want to have a look at our listing of upcoming events.

Finally, if you want to catch up with this week’s news, our Weekday News Wraps can help you with that.

Thank you very much to our guest contributors and have a nice weekend!

Weekend Roundup: May 19-25, 2012

by An Hertogen

This week on Opinio Juris, we continued last week’s book discussion of Laura Dickinson’s Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs, with Laura’s post on the role of organizational structure and institutional structure as a mechanism of accountability and constraint, and her response to Steve Vladeck and to the other commentators.

In a guest post, David Sloss proposed a rule to resolve conduct-based immunity defenses in cases under the Alien Tort Statute and/or the Torture Victim Protection Act.

Until he found a searchable version, Kevin Jon Heller was floored by the Special Court for Sierra Leone’s 2499 page judgment in the Charles Taylor case, and asked whether the length would affect the length of Taylor’s sentence. Kevin also commented on Mauretania’s indictment of former Libyan spy chief al-Sennusi, and he wrote about his proposal for a new book entitled A Genealogy of International Criminal Law.

Julian Ku posted a video link to the US Senate Foreign Relations Committee’s hearings on the UN Convention on the Law of the Sea that took place on Wednesday, but reportedly ended in a decision to postpone the vote until after the November elections. UNCLOS was also the theme of Peter Spiro’s post on the use of the term “sovereignty” by the American Sovereignty Campaign advocating ratification.

Peter Spiro also discussed how non-state actors are increasing their influence in international organizations, including formally intergovernmental ones such as the WTO and the ITU.

As every week, we also provided a list of upcoming events and the weekday news wrap.

Have a nice weekend!

Weekend Roundup: May 12-18, 2012

by An Hertogen

This week on Opinio Juris, Chris Borgen posted about Peter Watts’ short story on the legal and ethical questions relating to the use of autonomous aerial combat drones; Julian Ku shared Cato Institute’s Walter Olson’s observations on the revolving door between the UN and the US legal academy; Kevin Heller gave an account of his PhD viva at Leiden; and Roger Alford made us guess which six countries were the focus of the AP Comparative Government this week.

Peter Spiro continued last week’s discussion on US taxation of US expats with a post about Eduardo Saverin’s renunciation of US citizenship shortly before Facebook’s IPO, and the implications thereof for his future travels to the US. Peter also discussed a legislative proposal in response to it, the ex-PATRIOT Act, and its legality under domestic law and international human rights law if it were to become law. Following Michelle Bachmann’s acquisition and subsequent renunciation of Swiss citizenship, discussed last week, he also asked why some progressives hate dual citizenship.

Leila Hanafi’s guest post discussed the role of the ICC in providing transitional justice in Libya. Further on Libya and the ICC, Kevin Heller discussed the contrasting, and counter-intuitive, motions of the ICC’s Office of the Prosecutor and the Office of the Public Counsel for the Defence on the issue whether Libya should surrender Saif Gaddafi to the ICC. Kevin also addressed the question whether the ICC can prosecute NATO forces for war crimes in Libya, and argued that UNSC Resolution 1970 which grants exclusive jurisdiction over the actions in Libya by nationals of non-ICC members to their home state is incompatible with the Rome Statute.

In another guest post, Ruti Teitel criticised Sam Moyn’s op-ed in last Sunday’s New York Times as unduly nostalgic about the past.

The main event this week was a book discussion on Professor Laura Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. The symposium, introduced here, addressed the implications of the rise of private military contractors for the protection of public values. Laura’s first post argued how public values are threatened. In her comments, Allison Stanger warned about the implications of the inevitable clash between market and civic values when important government functions are outsourced to the private sector. Deborah Pearlstein’s comments situated the issue of liability of private military contractors against the broader background of waning legal and political accountability in the use of American war power more generally. Scott Horton looked at how debates on the accountability of private military contractors complicated negotiations on Status of Forces Agreements in Iraq and Afghanistan.

Laura followed up with a post on the obstacles when trying to hold private military contractors accountable for their abuses through criminal prosecutions or civil tort suits. Steve Vladeck’s comments added to this by pointing to a series of recently decided or argued cases on contractor liability, included the lesser noticed United States v. Brehm, and questioned whether US jurisdiction might in some cases be too broad. Laura also posted about another suggestion from her book: to instill public values through government contracts. In his comments, Chris Borgen’s comments addressed the question of how to shift from the current lax contracting standards to new types of foreign affairs contracts that incorporate public law standards. Chris also provided a colorful example of the potential dangers with outsourcing. His St. John’s colleague, Jeffrey Walker, offered a view from practice on the feasibility of such contracts. Ken Anderson’s comments focused on the limits of contractual mechanisms in ensuring accountability.

Finally, our list of upcoming events and calls for papers can be found here, and our latest news wrap is here.

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

Weekend Roundup: May 5-11, 2012

by An Hertogen

This week on Opinio Juris, Kevin Jon Heller posted on Khalid Sheikh Mohammed’s refusal to participate in his Military Commission trial, on the censored time-delayed video and audio feed from the trial and on the irony of an op-ed complaining about “false information about the detention” in the media coverage. Deborah Pearlstein addressed the question whether things might have gone differently had a regular criminal court been the forum for this trial.

Kevin also wrote about moves by the Office of Public Counsel for the Defence to disqualify Prosecutor Moreno-Ocampo from the Saif case and posted about a new law passed by Libya’s National Transitional Council (NTC) granting blanket amnesty to pro-revolution rebels. The (aspiring) Law Professors or Law PhDs/JSDs amongst our readers will undoubtedly be interested in Kevin’s post on Doctors, Professors and (North) American exceptionalism.

The ongoing tensions around the Scarborough Shoal in the South China Sea were often featured in this week’s news wraps. Julian Ku analysed what the US’ reaffirmation of its 1951 Mutual Defense Treaty with the Philippines entails. He argued that the treaty’s obligations for the US may not be merely theoretical, following escalating Chinese rhetoric. Julian also explained why he does not find the arguments for and against the US joining the UN Convention on the Law of Sea compelling. He also posted a critique on the US Agency for International Development‘s efficiency.

Roger Alford posted an exchange of views on sovereignty in the age of globalization between John Yoo, John Cerone and himself over at the Liberty Forum. Roger also asked when an arbitral panel qualifies as an international tribunal for the purposes of Section 1782, the statute that authorizes US federal courts to order discovery in aid of proceedings before foreign courts and international tribunals.

Peter Spiro argued that his fourth grader learning about the Convention on the Right of the Child means that international law must be getting some traction… at least at “a lefty Quaker school in the Northeast”. He also discussed how dual citizenship is a fact of life in globalization, prompted by Michelle Bachmann’s recent acquisition, and subsequent renouncing, of Swiss citizenship. American citizens abroad are however increasingly renouncing their US citizenship to avoid the administrative burden and penalties under the Foreign Account Tax Compliance Act which taxes US citizens, even if they do not reside in the US.

Duncan Hollis was puzzled by a disclaimer on the UNIDROIT’s website prohibiting the unauthorised reproduction of treaties.

In a guest post, Doug Cassel described the different hurdles that Venezuela would have to clear if it decides to withdraw from the Inter-American Commission on Human Rights, and the influence it would have on other states.

Finally, we brought you an overview of upcoming events and calls for papers.

Have a nice weekend!

Weekend Roundup: April 28 – May 4, 2012

by An Hertogen

This week on Opinio Juris, Chen Guangcheng’s escape to the US Embassy in Beijing did not go unnoticed. In a first post, Julian Ku discussed how Chen would not get political asylum at the Embassy. Peter Spiro followed up with his thoughts on diplomatic asylum. After Chen’s departure from the US Embassy, Julian asked whether the US or China violated international law.

Julian also had a closer look at the content and legal status of the US-Afghanistan Strategic Partnership Agreement that Obama went to sign in Afghanistan.

Duncan Hollis posted three first impressions from a recent conference at the US Naval Academy on the Ethics of Military Cyber Operations. Further on novel military operations, Ken Anderson posted a summary of his recent article, co-authored with Matthew Waxman, on the Law and Ethics for Robot Soldiers.

Kevin Heller welcomed Communis Hostis Omnium, a blog on maritime piracy, to the blogosphere. He posted on Benjamin Netanyahu’s terrible week and analysed Libya’s challenge of the admissibility of the ICC cases against Gaddafi and Al-Senussi. He then addressed the question, raised in the comments by recent Opinio Juris guest contributor Mark Kersten, whether Libya is “able” to prosecute Gaddafi and Al-Senussi given that neither of them is currently in Libya’s custody. Kevin also discussed how the Nuremberg defense is popping up in the NFL’s bountygate.