Weekend Roundup: November 25-30, 2012

by An Hertogen

This week on Opinio Juris, Kevin Jon Heller wrote about Niger’s offer to extradite Saadi Gaddafi to the ICC, should this be requested. Kevin also discussed the conditions attached by the UK for a vote in favour of Palestine’s “non-member state” bid in the UN General Assembly. The requirement that the Palestinian authority does not apply for ICC or ICJ membership most likely proved to be a dealbreaker, as the UK ultimately abstained. Following the vote, Kevin argued that Palestine can accept the ICC’s jurisdiction retroactively by making a simple declaration, which triggered a long discussion in the comments.

Membership of international courts was also discussed by Julian Ku, who pointed to Colombia’s decision to withdraw from the 1948 Bogota Treaty’s provision granting jurisdiction to the ICJ over disputes between the parties. Further on Latin American states and international courts, Julian posted a link to his Forbes.com op-ed on Argentina’s arguments against Ghana concerning the seizure of the ARA Libertad, and a link to the webcast of the oral hearings on the case at the International Tribunal on the Law of the Sea.

Two of our bloggers were critical of reporting by the Associated Press. First, Julian argued that the AP’s conclusion that Columbia’s withdrawal from the ICJ does not reduce the ICJ’s authority was incorrect. Kevin also put AP to shame over a fraudulent graph used to report Iran’s alleged efforts to build a nuclear weapon.

Ken Anderson drew our attention to a report by Human Rights Watch and the Harvard Law School Human Rights Clinic calling for a ban on autonomous weapons systems, and contrasted this with the conclusion he and Matthew Waxman have reached in a recent policy essay. In a related post he discussed the incremental approach advanced by a DOD Directive on the topic, released almost simultaneously as the HRW Report.

Efforts to create a legal framework for targeted killings prompted Deborah Pearlstein to ask what the end game is and what strategy determines the choice of targets. Ken chimed in with excerpts from a speech delivered on Friday by DOD General Counsel Jeh Johnson. Deborah followed up by welcoming Johnson’s reflections about the need to challenge the assumption of war as the new normal.

In a guest post, Chris Jenks argued that the negotiations of a status of forces agreement between the US and Afghanistan are likely to stumble over the question of foreign criminal jurisdiction over US service members, as they did in Iraq.

In other posts, Peter Spiro questioned the motives behind Spain’s decision to extend citizenship to Sephardic Jews whose ancestors were expelled 500 years ago, and contrasted this with the stringent naturalization requirements for Moroccan migrants, and Kevin linked to a summary of the Lago Agrio case.

As always, we also provided you with daily news wraps.

Have a nice weekend!

Weekend Roundup: November 17 – 24, 2012

by An Hertogen

Posting was light this week due to the Thanksgiving holiday in the US. We hope all our US readers had a very happy Thanksgiving holiday!

Peter Spiro commented on the territorialist approach in Obama’s speech on citizenship during this week’s visit to Burma.

Deborah Pearlstein posted about the ABA’s recent journalists’ guide on national security law, to which she contributed a chapter on international law in US courts.

Kristen Boon reported on the UN Security Council’s debate on maritime piracy, and the resulting presidential statement, and wondered about the role of the Security Council in this area. Continuing on this “watery” theme, Ken Anderson wrote about a new set of amendments agreed by Mexico and the US to the 1944 Colorado River Pact and Julian Ku blogged again about Argentina’s claim under the UNCLOS against the seizure of its naval training ship in Ghana. In his post, he agreed with Matthew Happold’s argument that the ITLOS does not jurisdiction because this is not an UNCLOS question.

Julian also pointed out that Colombia is already looking for alternative legal mechanisms to resist this week’s ICJ judgment in its dispute with Nicaragua, and was critical of the suggestion by Geoffrey Robertson QC that international law might be able to resolve the Iran nuclear crisis.

Kevin Jon Heller posted about an interview with Judge Sow about the Charles Taylor trial. Further on Africa, Ken Anderson discussed how the UN is considering deploying surveillance drones in Eastern Congo.

As always, we listed upcoming events and provided daily news wraps. Our readers may also be interested in the job of Assistant Dean for International Affairs at the University of Michigan Law School, mentioned by Peter.

Weekend Roundup: November 10 – 16, 2012

by An Hertogen

This week on Opinio Juris, we finished last week‘s symposium on the Oxford Guide to Treaties, recently edited by our own Duncan Hollis. Peter Spiro discussed Kal Raustiala’s chapter on NGOs and treaty-making, and argued that we should look beyond traditional treaties to understand the full scope of NGO participation in international lawmaking. A final set of posts discussed the increasing public nature of treaties. Geir Ulfstein argued that treaty law alone cannot answer all the important legal questions that arise as a result of treaty bodies exercising public powers, but needs input from institutional law. Catherine Brölmann’s post also discussed the combination of contractual and institutional elements in constitutive treaties. Geir and Catherine’s posts led Duncan Hollis to reflect on how treaty law can lead to “secondary fragmentation” – fragmentation in the “rules on rules”.  Christian Tams argued that this “fragmentation” indicates the limits of general treaty law which often only provides residual rules or no rules at all.

In our regular posts, Julian Ku questioned whether Argentina’s claim under the UNCLOS against the seizure of its naval training ship had any chance of success. Peter Spiro discussed the status of honorary consuls after Jill Kelley, one of the central figures in the Petraeus scandal, demanded “diplomatic protection” based on her status as Korea’s honorary consul in Tampa. Kevin Jon Heller was appalled by the assumptions of the online “Tell Me How This Ends” game, as all available strategies required a blatant violation of jus ad bellum, and Kristen Boon wrote about a panel on the Responsibility to Protect she chaired during the Canadian Council of International Law conference.

R2P was also the topic of Spencer Zifcak’s article discussed as part of the latest Melbourne Journal of International Law symposium. The article examines the current standing of coercive intervention under the R2P doctrine after Libya and Syria. In his response, Ramesh Thakur pointed to three points missing from the analysis. Thomas Weisz argued that R2P is only an emerging norm and that its enforcement will depend on a confluence of political circumstances and military capacity. Spencer Zifcak’s reply to the comments can be found here.

A second article, by Darryl Robinson, examined why command responsibility had become so complicated, and blamed one early misstep. Ilias Bantekas’ response focused on causality whereas Jens Ohlin proposed to consider command responsibility as both a separate offence and a mode of liabilityDarryl Robinson responded to these comments here. James Stewart wondered whether a failure to punish subordinates could be assimilated to ex post aiding and abetting. Darryl Robinson responded here.

The final article of the MJIL Symposium, by Michelle Foster, argued why Australia’s MOU with Nauru about the processing of refugee applications is at risk of violating the Refugee Convention. Mary Crock agreed with this assessment and discussed the effects that the new arrangements have already had. Susan Kneebone examined the application of principles of state responsibility. Michelle Foster’s response can be found here.

As always, we kept you up to date with a listing of upcoming events and our daily news wrap.

Have a nice weekend!

Weekend Roundup: November 3 – 9, 2012

by An Hertogen

With the US elections dominating the headlines this week, Peter Spiro argued that the impact of the US president on populations who are unable to vote in the election, and are not even allowed to make campaign contributions, reveals another limit of state-based institutions. Deborah Pearlstein asked whether President Obama’s promise that a “decade of war is ending” includes the “war” against al-Qaeda, and started thinking about the law and policy implications as the US shifts from the war paradigm to a counter-terrorism framework.

Two posts dealt with immunity from criminal jurisdiction. Kristen Boon discussed the sensitivity and the legal significance of head of state immunity, which was on the agenda this week at the UNGA’s Sixth Committee. In a guest post, William Dodge tried to make sense of the Fourth Circuit’s decision in Yousuf v. Samantar.

The main event on the blog this week was the symposium on the Oxford Guide to Treaties, edited by our very own Duncan Hollis, who introduced the symposium on Thursday morning. The symposium continues on Monday, so stay tuned for more!

A first series of posts dealt with the question of reservations. David Stewart addressed objections to reservations and  severability, and argued that the severability rule could be a disincentive to broad treaty adherence. Harold Koh asked what happens when a treaty reservation is invalid? Ed Swaine also addressed the severability issue and asked how it could be made less severe. Marko Milanovic defended the compromise reached by the International Law Commission in its 2011 Guide to Practice on Reservations to Treaties, and described the conceptual moves made to achieve the compromise.

A second series of posts focused on treaty interpretation. Richard Gardiner started the conversation pointing to various considerations beyond those listed in article 31 VCLT that can inform treaty interpretation. Jean Galbraith discussed the diverging ways taken by international and US domestic approaches to treaty interpretation, with international law accepting a strong teleological approach in contrast to the textual approach that has re-emerged in the US.

Finally, as always, you can find a list of upcoming events and our daily news wraps.

Have a nice weekend!

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!