Weekend Roundup: October 27 – November 2, 2012

by An Hertogen

This week on Opinio Juris, our thoughts are with our US East Coast readers affected by Superstorm Sandy. We hope you and your loved ones are safe and sound.

Posting was light this week because of the storm, which forced us to postpone a symposium on Duncan Hollis’ edited volume, The Oxford Guide to Treaties, to next week. But Sandy also provided inspiration for a few substantive posts. Kristen Boon highlighted recent developments in international disaster law and Peter Spiro built on this asking whether in the long term there should be a global FEMA.

The Washington Post’s series of articles on “The Permanent War” prompted Ken Anderson to compare the different attitudes of the US political community and the international legal community towards accepting US “counter-terrorism on offense” policies from a legal and policy perspective, and discuss strategic considerations for advocacy groups to challenge the convergence towards acceptance of these policies within the US political community. In another post, Ken mentioned the little-known law of edged weapons.

Kevin Jon Heller posted an abstract of his draft article on the legality of signature strikes. He also wrote about the UK’s Supreme Court rejection of the argument that al-Qaeda operatives are not protected persons under article 49 of the fourth Geneva Convention, as argued in an OLC memo authored by Jack Goldsmith.

Looking forward to next week, Peter Spiro asked whether Americans abroad could determine the US presidential election.

As each week, we brought you daily news updates and a list of upcoming events. Kristen Boon also drew your attention to the upcoming annual conference of the Canadian Council of International Law.

Have a nice weekend!

Weekend Roundup: October 20-26, 2012

by An Hertogen

This week on Opinio Juris, we welcomed Kristen Boon as our newest permanent blogger. In her opening post, she examined why the Security Council’s work on Children and Armed Conflict has turned out to be controversial. She also asked readers’ opinion on a recent report by the UN Special Rapporteur on Torture claiming that there is an emerging customary norm that the death penalty is a form of torture or cruel and degrading treatment. Finally, she discussed a trail blazing class action against the UN over a cholera outbreak in Haiti. The claim was filed by the Institute for Justice and Democracy in Haiti, but the UN has yet to respond. Kristen discussed possible reasons for the delay in the response and also analysed whether the Draft Articles on the Responsibility of International Organizations could provide a basis for liability.

The foreign policy debate in the US Presidential election provided inspiration for our bloggers. Peter Spiro noted how international law was generally ignored during the debate, but at least it wasn’t reviled as during the time of George W. Bush. Julian Ku and Kevin Jon Heller both discussed Gov. Romney’s claim that Iranian President Ahmadinejad should be indicted under the Genocide Convention for incitement to genocide. Julian argued that the ICJ would be the most likely forum or otherwise the ICC if a Security Council referral could be obtained. Kevin disagreed with Julian’s assessment that the US courts would not have jurisdiction. Further on the upcoming US elections, Julian called the threats by Texas officials to arrest OSCE election officials a kerfuffle about nothing.

Julian followed up on earlier posts, arguing that the US could legally engage in military action against the attackers of its embassy in Benghazi, even if the attackers are not linked to al Qaeda.

We also drew your attention to some new and old scholarship. Kevin plugged a new article by James Stewart on “Overdetermined Atrocities” and the release of a paperback edition of his book on the Nuremberg Military Tribunals. At the occasion of the 50th anniversary of the Cuban Missile Crisis, Peter Spiro revisited Abram Chayes’ book on the legal aspects of the crisis. Finally, Duncan Hollis posted about the ALI’s announcement to start work on a 4th Restatement on the Foreign Relations Law of the United States, to be co-ordinated by Sarah Cleveland and Paul Stephan.

As always, we listed upcoming events and provided you with our weekday news wraps.

Have a nice weekend!

Weekend Roundup: October 13-19, 2012

by An Hertogen

This week on Opinio Juris, we hosted a book discussion on Informal International Lawmaking, a new volume edited by Joost Pauwelyn, Ramses Wessel and Jan Wouters, hot of the presses from OUP. In a post on the conceptual approaches adopted by the authors, Joost Pauwelyn explained what they mean by “informal” international lawmaking and what the book hopes to add to the debate on non-traditional forms of international law. David Zaring asked where the boundaries of “informal” law stop and discussed the legitimization technique used in the book, a move away from the traditional state consent.

Ramses Wessel discussed the legal nature and impact of informal international law. In his comment, Tai-Heng Cheng focused on the relationships between international social norms, legality and normativity. Ramses Wessel’s reply argued that the notion of ‘presumptive law’, developed by Jan Klabbers, could be useful to understand the important normative role that informal law can play, and that actual effects and the acceptance of norms in legal orders are important factors to determine normativity.

Jan Wouters summarized the findings on the accountability and domestic implementation under informal international lawmaking. Chris Brummer’s comment added to this from the perspective of international financial law, and also flagged how courts are often side-lined by the non-binding nature of informal law.

To conclude the symposium, Joost Pauwelyn argued why we are now seeing more informality than ever before, and pointed to the recent WTO Decision in US-Tuna II as an example of how informal international law can affect dispute settlement by courts, and Jan Wouters and Sanderijn Duquet closed off with some further thoughts on accountability.

In what can be seen as an example of informal international lawmaking, Peter Spiro and Duncan Hollis discussed the negotiations of the International Telecommunications Union’s regulations later this year in Dubai. Peter pondered different models for the participation of the large number of industry representatives on the US delegation to the negotiations on an international telecommunications treaty. Duncan reported on a set of White Papers on cyber norms, resulting from a series of interdisciplinary workshops in which he has been involved.

Also of interest in relation to our book symposium is Harold Koh’s recent speech on 21st century international lawmaking to which Duncan drew our attention. In his speech, the legal advisor to the US State Department also explored alternatives to formal treaties and the role of non-state actors.

Another event that attracted attention on the blog was the DC Circuit’s opinion in Hamdan v. United States, holding that material support for terrorism was not a war crime before 2001. Kevin Jon Heller welcomed the decision, and in a later analysis argued why the historical case against considering conspiracy as a war crime is even stronger than that against material support for terrorism. Deborah Pearlstein discussed what Congress should take from Hamdan.

In other posts, Kevin dealt with a lot of quotes this week. First, he gave the award of Orwellian Quote of the Day to a US government request for a protective order in the 9/11 trials at Guantanamo Bay to avoid the publication of details about torture of the defendants. In the aftermath of the second US Presidential Debate, Kevin reviewed the transcript of the debate and of Obama’s speech in the Rose Garden to check what was said and what wasn’t about the Benghazi attacks. He also posted about a claim by the head of the American Family Association that Hitler’s Stormtroopers were male homosexuals.

Julian Ku felt little sympathy for Argentina whose naval training ship, the ARA Libertad, is the subject of an attachment claim in Ghana, brought by investors trying to recoup money they lost when Argentina defaulted on its sovereign bonds in 2002.

As always, we provided you with daily news wraps and a list of upcoming events. Julian also reminded us about the upcoming International Law Weekend in New York City, organized by the American Branch of the ILA, from October 25-27.

Finally, we look forward to next week, when Kristen Boon will join us as a new regular contributor. Welcome Kristen!

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

Weekend Roundup: October 6 -12, 2012

by An Hertogen

This week on Opinio Juris, Eric Posner’s Slate article about the legality of US drone strikes in Pakistan attracted the attention of Julian Ku and Kevin Jon Heller. Julian wondered whether Koh’s “conversion” on the issue will serve as a shield against international arguments about the illegality of the strikes. Kevin in turn expressed hope that Posner’s rejection of the “unwilling or unable” test will stop the spread of this standard from the US into non-US opinio juris.

Kevin reflected, twice, on how history tends to repeat itself, drawing parallels between the definition of combatant in the Vietnam War and for present day ‘signature strikes’, and about the use of the ‘water cure‘ during the war in the Philippines (which was however found to constitute torture in later reviews).  A picture of that water cure was posted on a new blog, called Geographical Imaginations, which Kevin welcomed to the blogosphere.

Duncan Hollis flagged that the case of Carol Anne Bond is back on the US Supreme Court’s radar screen following an application for certiorari and, if accepted, may provide an opportunity to revisit Missouri v. Holland.

We also provided a platform this week to the Leiden Journal of International law, for a symposium on its latest issue. A first article discussed was the editorial by Jean d’Aspremont who lamented the diffused power of interpretative power in international law and the resulting ‘wordfare’ about naming. Comments were provided by Francesco Messineo and Michael Kearney. Jean’s response is here.

A second article, by Jean Galbraith, assessed to what extent good deeds are taken into account in sentencing in international criminal law. Meg deGuzman and Mark Drumbl provided commentary, to which Jean replied here.

Finally, as every week we provided you with a list of upcoming events and with our weekday news wraps.

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

Weekend Roundup: September 29 – October 5, 2012

by An Hertogen

This week, there was no escaping the second oral argument in the Kiobel case that kicked off the US Supreme Court’s term on Monday. If you are not familiar with this case, it concerns the enigmatic Alien Tort Statute which, as part of the Judiciary Act 1789, holds that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” SCOTUSblog provides more background on the case here and here.

First of the mark here at Opinio Juris was Deborah Pearlstein posting on the early consensus about how oral argument was going. Peter Spiro posted a link to the transcript of the oral argument, and argued that things did not go that well for Shell, but stopped short of making predictions about the final outcome. Roger Alford predicted that the Supreme Court will limit application of the ATS to claims by foreign plaintiffs against foreign corporations for conduct on foreign soil. In a later post, Deborah discussed three possible readings of an exchange between Justice Scalia and the US Solicitor General on whether the Court should give deference to the views of the State Department.

During our special Kiobel Roundtable, Curtis Bradley argued that the presumption against extraterritorial application is a better fit than the stronger presumption against extraterritoriality to limit the scope of the ATS. In his post, William Dodge also pointed out that suggestions by respondents to apply the presumption against extraterritoriality did not appear to gain traction with the justices. He also touched on the questions of the availability of alternative fora and of corporate liability for human rights violations. Chimène Keitner focused on transitory torts, rejected Shell’s claims that federal courts should not consider any claims arising outside the US and discussed how much deference should be given to the political branches to avoid offending foreign countries.

A few contributors raised the issue of the purpose of the ATS. Julian Ku expressed disappointment that the parties did not offer a persuasive theory of the purpose of the ATS. Meir Feder asked whether the ATS addresses national or universal interests. In a similar vein, Beth Stephens discussed how to define a coherent limit on ATS cases, and argued that the devil is in the details. Thomas Lee argued that the real purpose of the ATS was about protecting safe conducts and not about piracy or ambassadorial infringements, as is often assumed.

Doug Cassel argued that the Supreme Court should only require the prior exhaustion of foreign and international remedies “in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies”. He added that any exhaustion requirement should respect the exceptions recognized by international law.

Aside from our Kiobel posts, Kevin wrote about the passing of historian Eric Hobsbawn. Ken Anderson reposted part of Gary Bass’ review of John Witt’s book “Lincoln’s Code“, discussed Aryeh Neier’s call for a no-fly zone over Syria, and examined the differences between the targeted killing of Anwar al-Awlaki and the landmark case of Reid v CovertJulian discussed reports that the US is preparing a retaliatory military strike into Libya over the killing of Ambassador Stevens, and posted about the refusal by the Japanese PM to submit the Senkaku/Diaoyu dispute to the ICJ. Finally, Duncan Hollis posted about a recent decision by the Nevada Supreme Court to implement the ICJ’s Avena judgment, despite there being no requirement to do so, as the US Supreme Court held in Medellin v. Texas.

As always, we also brought you a list of upcoming events and our weekday news wraps.

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