Weekend Roundup: June 23 – 29, 2012

by Jessica Dorsey

This week on Opinio Juris, Kevin Jon Heller continued coverage of the Melinda Taylor situation in Libya, pointing out a special report in the Guardian detailing her detention and that so far, the “non-apology apology” issued by the ICC has not helped the situation. In other ICC-related news, he pointed out John Bellinger’s editorial on the Court at 10 years old. Kevin additionally gave an informative look at how Amnesty International and Human Rights Watch do not, in fact, ignore labor rights, as Kathleen Geier might have us believe and pointed us to his playlist of the best anti-war songs ever.

Peter Spiro followed a couple of US Supreme Court stories looking at them from an international law perspective, including how the Court studiously avoided it entirely in the recent Miller v. Alabama case (striking down laws mandating juvenile offenders be sentenced to life without parole) and calling attention to Justice Scalia’s dissent in the SB 1070 case.

In other US news, Julian Ku pointed out that on the same day the Supreme Court ruled on the Affordable Health Care Act, other employees in Washington were debating the UN Convention on the Law of the Sea ratification during a Senate Foreign Relations Committee hearing and highlighted a letter to the editor at in the Wall Street Journal that previewed China’s argument about the dispute involving the Scarborough Shoal/Huangyan Island. Additioanlly, Duncan Hollis put out an open sollicitation for novelists looking for advice on international law in response to Brad Thor’s new novel, Full Black.

This week, we hosted a Symposium for the Yale Journal of International Law’s Volume 37:2, wherein two articles from the issue were discussed at length. First, in Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law, Margaux J. Hall and David C. Weiss discuss how international human rights law can inform and guide policy decisions regarding climate change adaptation. Hall and Weiss introduced their article with a post here and Bonnie Docherty and Tyler Giannini offer comments regarding climate change refugees, and specifically how human rights can affect the underlying principles of a climate change refugee instrument here.

Robin Kundis Craig discusses the inherent temporal complexities related to climate change as an example of how complex the human rights approach to climate change could be and discusses the role and burden of women and girls in adapting to climate change and J.B. Ruhr also adds to the discourse raising many questions regarding the issue of whether the international right to equity in climate change is substantial or procedural.  Siobhan McIneney-Lankford contributed thoughts regarding the value added of human rights law with respect to climate change and Hall and Weiss respond to the comments raised by the other posts here.

The second article of the Symposium is Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values, wherein Robert Howse and Joanna Langille analyzed in how far countries can use animal welfare concerns and morals, generally, to justify restrictions on international trade under the law of the WTO. The authors begin by introducing their article here and as a first response, Simon Lester discusses the seal dispute as it related to the boundaries of international trade law.

Isabel Feichtner adds an analysis of the article focused on a critical look at TEFU and European regulations before Tamara Perisin pointed out a few subtleties about which she disagrees with the article’s authors and opens several questions for discussion regarding the aims, coherence and necessity of the EU’s seal product regulations. Howse and Langille respond to the comments on their article in a post here.

And last but not least, it’s not too late yet to participate in our readers’ survey and enter the sweepstakes to win a $100 Amazon gift voucher.

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

Weekend Roundup: June 16-22, 2012

by An Hertogen

This week on Opinio Juris, we continued last week’s discussion on the US debate on ratification of the UN Convention on the Law of the Sea with a follow-up post by Craig Allen, addressing the Convention’s extended continental shelf revenue sharing and its compulsory dispute settlement. John Noyes’ response to last week’s post by Steven Groves discussed why ratification would create more stability for US claims with respect to the extended continental shelf. He also responded to Jeremy Rabkin’s concerns about compulsory arbitration, but the latter didn’t find the precedents on compulsory arbitration reassuring.

Another symposium this week focused on Paul Schiff Berman’s book “Global Legal Pluralism: A Jurisprudence of Law Beyond Borders”. The symposium, introduced here by Peter Spiro, kicked off with a post by Paul Berman outlining the book’s argument. Jeff Dunoff criticized the book for paying insufficient attention to the issue of international regime interaction; Janet Levin offered suggestions of how the work could push beyond its own boundaries; and David Zaring applied Berman’s cosmopolitanism to international financial regulation. Peter Spiro offered two thoughts on community formation and the role of international law to test, and if necessary, limit community practices. Hari Osofsky commented that there are multiple visions possible of global scale and worried about inequality in legal orderings. Paul Berman’s closing post offered “three responses and a quibble”.

A stand-alone guest post by Jonathan Hafetz discussed how habeas reviews of Guantanamo detentions turn a blind eye to the length of the detention.

In our regular posts, Duncan Hollis discussed the parallels between the Enrica Lexie dispute between India and Italy and the seminal Lotus case; Roger Alford discussed how extraterritorial application of the US Foreign Corrupt Practices Act could jumpstart anti-corruption prosecution in other OECD countries, and Julian Ku posted about Germany v Greece in the Euro 2012.

Peter Spiro asked whether the pending Supreme Court ruling on Arizona’s SB1070 will make any difference and whether Julian Assange will live out his days in the Ecuadorian Embassy in London. Peter also pointed to the plight of persons of South Sudanese descent residing in Sudan who have become stateless after South Sudan’s secession.

As always, Kevin Jon Heller kept us up-to-date with ICC news, discussing the ICC’s Appeals Chamber’s “farewell present” to Moreno-Ocampo. He continued to write about Melinda Taylor’s detention in Libya, criticizing Australian’s foreign minister’s radio interview on the issue as well as the reporting on the reasons for her detention in the Libya Times. He followed up with a Guardian article reporting that Melinda Taylor is being interrogated. Kevin also thought that the ICC was risking its credibility with its statement on Melinda Taylor’s detention. In a more technical post, Kevin explained his argument regarding article 89(2) Rome Statute and the obligation to surrender.

Deborah Pearlstein drew our attention to Anne-Marie Slaughter’s candid article about work-life balance for professional women. Since you’re probably reading this during the weekend, I will stop interfering with your work-life balance and just quickly point out that it’s not too late yet to participate in our readers’ survey and enter the sweepstakes to win a $100 Amazon gift voucher.

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

Weekend Roundup: June 9 – 15, 2012

by An Hertogen

This week on Opinio Juris, we launched our first Readers’ Survey. Your input is valued so we hope you will find a spare ten minutes to complete yours if you have not yet done so. If you want, you can enter your e-mail address in the draw to win a $100 Amazon gift voucher.

In our regular posts this week, Kevin Jon Heller asked about publishing etiquette when reviewing a journal essay that has already been published as a substantial blog post. Many readers offered their views in the comments. Kevin also discussed Moreno-Ocampo’s heated exchange with the Sudanese Ambassador at the UN and argued that diplomatic immunity should extend to lawyers with the ICC’s Office of Public Counsel for the Defence based on para. 5 of SC Res. 1970.

Deborah Pearlstein discussed two commentaries on the NY Times reports on targeted killings and argued that what is necessary to advance the debate is a stable definition of what it means to be at war, and Duncan Hollis discussed a debate addressing whether there should be an international treaty on cyberwarfare.

Julian Ku asked whether the equality guarantee under the ECHR requires the Church of England to perform same sex marriages and noted how Public Citizen’s objections to the negotiations on the Trans-Pacific Partnership Agreement are similar to those traditionally made by right-wing sovereigntists. He also discussed a change in stance by the US government in the Kiobel case, as it now argues that the complaints lack a sufficient nexus to the US.

Two guest posts discussed the Charles Taylor sentencing judgment, published last week. Mark Drumbl remarked how the judgment reflected traditional international law by taking into account as aggravating factors the extra-territoriality of Taylor’s acts and his status as a head of state. Dov Jacobs focused on the limits of international criminal law in addressing mass atrocities.

Another focus this week was the debate in the US on accession to the UN Convention on the Law of the Sea. Julian Ku discussed an op-ed by Donald Rumsfeld announcing his opposition. Julian then introduced the Opinio Juris discussion here. Favoring accession, Craig Allen criticized the argument that the US has nothing to gain from accession since the most of the Convention reflects customary international law; James Kraska argued that UNCLOS is a force multiplier for American power; and John Noyes defended the Convention’s regimes on fisheries, oil and gas, and seabed minerals, as promoting US interests. On the second day of our debate, introduced here by Julian, Jeremy Rabkin cautioned against accession because of the risk that compulsory arbitration might interpret treaty rules in ways contrary to US interests. Steven Groves partially agreed with the arguments in favor of accession but argued that the overall benefits are outweighed by the costs.

As always, we also had our two regular features: the overview of upcoming events and the weekday news wraps.

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

Weekend Roundup: June 2-8, 2012

by An Hertogen

This week on Opinio Juris, we are happy to announce that the blog is now available on Kindle devices to our US readers. This new feature allows you to read the blog even when you are not wirelessly connected, and we hope that those of you who are often on the road will appreciate it. We of course welcome any feedback.

As always, you could rely on Kevin Jon Heller this week to keep you up-to-date with developments at the International Criminal Court. On Saturday, he was not convinced by the ICC’s Pre-Trial Chamber’s decision that article 95 of the ICC Statute applies to requests for surrender, and it was not only because they did not agree with him on this point. Later in the week, he was more positive about the OTP’s response to Libya’s challenge to the admissibility of the cases against Saif Gaddafi and Abdullah al-Senussi. Further on international criminal law issues, Marina Aksenova argued in a guest post why Charles Taylor’s sentence is adequate.

Kevin congratulated the Chief International Co-Prosecutor of the ECCC, Andrew Cayley, on taking silk in England, and the editors of a new book on International Prosecutors to which he contributed a chapter.

Other recent scholarship by our permanent bloggers includes Roger Alford’s recent article on the WTO Security exception, which although self-judging is rarely invoked in bad faith by WTO Members. Julian Ku’s book with John Yoo was discussed in a podcast with Martin Flaherty and at an American Enterprise Institute conference on the impact of globalization on US sovereignty of which Julian posted a video that also featured Opinio Juris’  Peter Spiro.

In other posts, Julian placed a bet that the EU would eventually give in to political pressure over its controversial decision to include international aviation in its Emission Trading Scheme, Ken Anderson discussed the alphabet soup of UN agencies and Duncan Hollis welcomed Cyber Dialogue to the blogosphere.

At the start of the week, we hosted a symposium on the new edited volume on Targeted Killings, introduced here by Jens David Ohlin. On Monday, Craig Martin and Jens discussed whether in the armed conflict paradigm jus ad bellum or jus in bello principles should govern the legality of targeted killings, and the related question whether an armed conflict with al-Qaeda exists. The distinction between jus ad bellum and jus in bello, was also central to Richard Meyer’s comments on Tuesday of Col. Maxwell’s chapter on status-based targeting. John C. Dehn provided the response. On Wednesday, the discussion dealt with the distinction between the armed conflict paradigm versus the law enforcement paradigm. Andrew Altman commented on Fernando Tesón’s proposal to take a middle ground between the two paradigms to which Fernando Tesón responded here.

Continuing on the subject of targeted killings, John C. Dehn provided another guest post criticizing John Yoo’s statements that Obama is micro-managing the drone attacks.

Finally, as usual, we also brought you the weekday news wrap and a list of upcoming events and call for papers.

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

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!