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[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University] In the upcoming days, you will find food for thought with regard to four articles featured in issues 26-2 and 26-3 of the Leiden Journal of International Law, covering a wide range of contemporary discussions in international law. The first discussion stems from Janina Dill’s article entitled “Should International Law Ensure the Moral Accountability of War?. In this piece, the author discusses recent just war theories that argue the need of international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability by moving away from the collective dimension of protected status. The author posits that such proposal is not realizable, and suggests ways to improve the current system. In their thoughtful discussions of the article, Gabriella Blum of Harvard Law School, and Christopher Kutz of Berkeley Law, invite the author to forward her argument yet further. Specifically, Gabriella Blum suggests that individual human rights can and should be taken into account in the context of war, while Christopher Kutz questions Dr. Dill’s premise that the collective approach to war in IHL is in contradiction with the general evolution of International Law towards taking into account individual rights. The second discussion revolves around Maarten den Heijer’s article, Diplomatic Asylum and the Assange case, where he argues that granting such asylum contradicts a number of principles of international law. Gregor Noll, from Lund University, and Roger O’Keefe, from Cambridge University, challenge the author’s premises, both in relation to his historical analysis and in relation to his evaluation of the legal framework. The third discussion focuses on Devika Hovell’s proposals in A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making. In the article, the author discusses the ways in which domestic and regional judges (EU, ECHR) deal with United Nations Security Council Resolutions and suggests the need to go beyond the classical notions of bindingness and hierarchy.  She proposes instead a more subtle and elaborate “dialogue model”. Erika de Wet, of the Universities of Amsterdam and Pretoria, and Piet Eeckhout, from University College London, draw attention to the limits of the author’s model within the current international law structure and in context of the states’ international legal obligations. In a nutshell, the professors argue dialogue is not always possible. Finally, the fourth discussion is an interchange between Zoran Oklopcic and Brad Roth, from Wayne State University, on the former’s challenge in “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary to the latter’s allegedly “empty” concept of self-determination. Brad Roth defends his “empty” notion of self-determination, pointing out the difficulties of actually identifying the substance of such principle. Aside from the in-depth and engaging appraisal of the specific issues contained in the articles, the various discussions all either directly or indirectly touch upon what has historically been at the heart of international law:

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability: I don't really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why?...

Peggy, Julian, Duncan and I took a stab at a podcast discussion of Tuesday's Supreme Court arguments in Bond v. United States.   [audio mp3="https://opiniojuris.org/wp-content/uploads/oj-podcast.mp3"][/audio]   You can now find an audio of the argument itself here. Mentioned in the course of the discussion are related posts by David Golove and Michael Ramsey here and here. The Nick Rosencranz Harvard Law Review article that...

[Michael W. Lewis is a Professor of Law at Ohio Northern University. He is a former Navy aviator and Topgun graduate.] Human Rights Watch and Amnesty International released reports last week criticizing the use of drones in Yemen and Pakistan.  Both reports have significant flaws in the way the factual information was presented and in how they characterize international law and US...

Lots of commentary today here and elsewhere on yesterday's oral arguments in Bond v. United States, with vote-counters quick to predict the Court will retreat from Missouri v. Holland and the question is only how much.  I have views on the merits, but, frankly I'm having trouble getting passed the fact that two Supreme Court justices, the Solicitor General, and one of...

[Marty Lederman is an Associate Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. Lederman and  law professors David Golove and John Mikhail filed an amicus brief in Bond.]   Some preliminary reactions that occurred to me as I was listening to the...

Lyle Denniston is first out of the gate with his take on the oral argument in the much-anticipated U.S. Supreme Court decision in U.S. v. Bond.  His general take: The argument in Bond v. U.S. (docket 12-158) reached the grand constitutional scale that has been its potential all along.   At the end of an hour-long hearing, it appeared that the government might just have...

November 5, 2013 is U.S. National Treaty Day.  Well, not really, but it might as well be given how much treaties are going to be in the news tomorrow.  For starters, the United States Supreme Court hears oral argument in the case of Bond v. United States (for the pleadings, see SCOTUS blog's as-always-excellent round-up).  As we've blogged previously (a lot), the case...

In my previous post, I mocked Scotland Yard's assertion that David Miranda, Glenn Greenwald's partner, committed an act of terrorism by transporting documents stolen from the US government by Edward Snowden. Mockery remains the appropriate response, given the vast chasm that separates Miranda's actions from any defensible conception of terrorism -- such as the one I quoted from UN General...

The ICC's Public Affairs Unit has brought to my attention that the Sudan Tribune erroneously reported what Judge Chile Eboe-Osuji said to Ruto concerning his public statements about his case. The unofficial transcript makes clear that although the Judge warned Ruto not to make additional statements, he did not suggest that Ruto would be arrested if he did so: 7 It has...

[Muthucumaraswamy Sornarajah is the CJ Koh Professor of Law, National University of Singapore and a Visiting Professor, Centre for the Study of Human Rights, London School of Economics.] Michael Goldhaber’s well-argued piece on the extent of the powers that investment arbitration tribunals are arrogating to themselves is evidence of a general malaise that afflicts investment arbitration. The arbitrators have assumed powers far in excess of what states intended them to have when they made investment treaties and created a unilateral power in the investor to arbitrate disputes. Consistent with prevailing ideas generated by the Washington Consensus and its desire to bring about standards of global governance, arbitrators promoting their own self-interest went on a rampage of expansionist interpretation of treaties. Goldhaber highlights one of the most glaring instances of this neoliberal expansionism, the making of interim orders restraining a respondent state from enforcing judgments of their domestic courts made in cases involving third parties. This phenomenon is but an aspect of a project to build up a neoliberal regime of inflexible investment protection. In the aspect of this project that Goldhaber describes, there has been an assiduous effort made by leading members of the “college of international lawyers”, entrusted the task of being bulwarks against injustice, promoting sectional interests of investors to the detriment of other values such as the protection of human rights and the environment. The downsizing of the notion of denial of justice so that it could accommodate lesser standards enabling easy review of domestic judicial orders is a definite project that arbitrators and “highly qualified publicists” embarked upon. Arbitrators, whose legal competence is not tested or uniform, embarked on a course of review of domestic decisions. Golhaber describes these processes with competence. As he points out, while purporting not to act as appellate courts, this is precisely what the tribunals were doing.

[Anthea Roberts holds a joint appointment as a Professor of Law at Columbia Law School and a Senior Lecturer in Law at the London School of Economics and will be in residence at Columbia Law School from 2013-2015.] Michael Goldhaber has written an interesting and timely article charting the rise of international arbitrators exercising power over and with respect to domestic courts. He gives examples ranging from Chevron to Saipem to White Industries. This is an important and growing phenomenon that has not yet received adequate attention. I believe that the rise of arbitral power over domestic courts that Goldhaber describes is the first stage in what will ultimately become a longer and more contested saga about the respective powers of arbitral tribunals and domestic courts. That is because arbitral tribunals not only exercise power over domestic courts, but their own power is also dependent on domestic courts. The power of arbitral tribunals ultimately comes down to whether their decisions will be enforced by domestic courts. While Goldhaber charts the first stage in the battle between arbitral tribunals and domestic courts where arbitrators are in the position of authority, we are likely to witness a second stage when domestic courts are asked to pass judgment on whether arbitral tribunals have exceeded their jurisdiction or violated public policy by hearing these sorts of cases or ordering certain relief. Arbitral tribunals will sit in judgment of domestic courts and domestic courts will sit in judgment of arbitral tribunals. Neither reigns supreme. BG Group v Argentina represents an early example of this type of phenomenon. The tribunal in that case chose not to enforce the requirement in the treaty that the investor resort to the domestic courts for 18 months prior to bringing an arbitral claim. Many other tribunals adopted the same approach, often painting the issue as one of admissibility rather than jurisdiction or viewing domestic remedies as futile rendering resort to them unnecessary. But when the Court of Appeals for the District Court of Columbia was asked to enforce the resulting award, it refused to do so on the basis that the tribunal had exceeded its jurisdiction because Argentina had only consented to arbitration on certain conditions, one of which was not met.