In association with the International Commission of Jurists

Symposia

05 Jun

[John C. Dehn is a nonresident senior fellow in West Point's Center for the Rule of Law. The views presented here are his personal views.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Let me first congratulate Claire Finkelstein, Jens Ohlin, and Andy Altman for compiling wonderfully...

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05 Jun

[Richard Meyer is Director, LLM Program, at the Mississippi College School of Law.] This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. In his chapter in Targeted Killings, Col. Mark “Max” Maxwell sets out to solve the gaps left by the ICRC guidance concerning continuous combat function.  His proposal attempts to analogize the terrorist organization to the traditional state and, as a result, find that members of their military arm be treated just like those of the uniformed member of a state’s military.  Maxwell argues that the true message of the ICRC guidance is a return to status based rather than mere conduct based targeting of certain civilians.  Just like the uniformed military, if they are a member of the armed group engaging in hostilities, they can be targeted based on their membership in that group without ever having engaged in hostilities personally.  His three pronged test can be summed up as:  1) determine if a armed group that is engaging in hostilities exists; 2) Using a “totality of the circumstances” analysis, determine if the intended target is a member of this group; 3) Attacks must minimize civilian casualties.  This is certainly a more workable and pragmatic paradigm for the uniformed military than Melzer’s argument that only after an individual has engaged in hostilities (on multiple occasions?) can his continuous targetability be determined.  Further, Maxwell’s chapter serves as an excellent primer on the current confusing paradigm of targeted killing caused by the conflation of human rights law and international humanitarian law.  His desire to evolve IHL is certainly a step in the right direction.  I have one objection to his proposal. Following the bad example of the AUMF, Maxwell’s proposal conflates the entirely segregable legal realms of jus ad bellum and jus in bello.  During WWII, the US declared war on Germany, Japan & Italy.  Thus the armed forces of those three countries, and only those three countries, were targetable on sight by American military forces.  Hypothetically, even if Spanish uniformed military forces were actively providing combat support services to the German military or were proven to have actually sent planes and participated in the attack on Pearl Harbor, the American Soldier, from Private Smith to General Eisenhower did not have legal authority to engage those forces except in self-defense.  Thus, only after the state’s jus ad bellum decision identifies the macro enemy can the combatant’s jus in bello determination identify the individual target.  This is a corollary to the long held principle of the law of war that the merits of a jus ad bellum decision do not alter the legal culpability of a jus in bello act in compliance with that decision.  Said another way, the otherwise eviscerated “following orders” defense is alive and well as it relates to the decision to go to war.  This is necessary, lest the members of a state’s military individually bear the legal culpability for a collective political decision. In an effort to facilitate a conflict with a nontraditional opponent, the AUMF did not identify a status based macro enemy, (e.g. the State of Germany) but instead identified a conduct based “…nations, organizations or persons the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,2001.”  This declaration delegates to the President, in his role as the Commander-in-Chief and (by potential further delegation) the military commander the power and responsibility to make both the jus ad bellum and jus in bello decisions.  Constitutional separation of powers issues aside, if the soldier has any role (other than as a voter or advisor) in the jus ad bellum decision, this severely undercuts the legal and moral justification that soldiers should not be held accountable for collective jus ad bellum decisions.  The soldier is protected from liability because the choice to go to war was not his to make… until now.  Paralleling this error, Maxwell creates a three-pronged analysis that also intermixes jus ad bellum and jus in bello decisions.  The first prong of Maxwell’s analysis requires the finding that there is an organized armed group engaging in combat with the state.  At first blush, it appears that Maxwell presupposes the existence of an armed conflict.  Armed conflicts however, currently require two competing macro entities (be they states or non state groups).  Thus, if the first prong is answered in the negative and there is no such armed and organized group “combating the state,” then there is no armed conflict; IHL does not apply and we are locked into the law enforcement paradigm.  Conversely, if there is such a group, the state might have the option of engaging that group under IHL.  Thus, prong one appears to be within the legal realm of jus ad bellum.  Prongs two and three, however, are both the jus in bello determinations of verification of status (for a status-based attack) and minimizing collateral damage/deaths.  Maxwell could argue that this is parallel to the traditional paradigm.  As noted, in that, the state makes the jus ad bellum decision and individuals make the jus in bello decisions, providing the latter with protection from legal responsibility for the former.  However, Maxwell assigns all three decisions to the collective state and none to the individual combatant.  In theory, this would place the legal culpability for all three decisions on the collective state and none on the individual, which would be a return to a near full-fledged following orders defense. At first blush, this appears to be semantics… Perhaps Maxwell used the term “state” to refer to both the collective and to the individual determinations of its military.  This does not actually solve the conflation issue however, because the first prong also involves currently simultaneous jus ad bellum and  jus in bello determinations.  To illustrate this point, I will divide his first prong into what I believe are the appropriate four steps contained within it.
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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his comments to my chapter “Targeting Co-Belligerents,” Craig Martin asks a very pertinent question: Is the US really in an armed conflict with al-Qaeda?  Or, more abstractly, can a state ever be in an armed conflict with a non-state terrorist organization?  Martin is correct to assume that an affirmative answer to this question is necessary before any of the in bello linking principles are used in my analysis.

Although this is an issue that I largely cabined from my argument in the chapter, it is now a question that very much animates my current research.  Here is my thinking:  At least part of the skepticism regarding the existence of an armed conflict with AQ or other NSAs, stems from an uncertainty regarding classification.  The armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries.  On the other hand, though, it cannot be an international armed conflict (IAC) because one of its parties is not a traditional state actor – presumably a condition-precedent for any IAC.  It not falling into either sub-category, it cannot be an armed conflict at all.

I find this argument suspicious, though my thinking on the issue is still evolving.  I am not quite clear on the supposed legal evidence for the proposition that IAC and NIAC occupy the entire field of the concept of armed conflict.  That’s only true when the concepts are defined in opposition to each other (where NIAC would simply refer to anything that is not a traditional IAC).  That was the style of analysis that the Supreme Court used in Hamdan, and that led them to conclude that the armed conflict against AQ was indeed a NIAC.  I found this argument persuasive.

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04 Jun

[Craig Martin is Associate Professor of Law at Washburn University School of Law, and author of another of the chapters in Targeted Killings]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Jens Ohlin’s chapter in Targeted Killings, “Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument. Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing. Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process.
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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] In April 2011, a group of legal scholars gathered at the University of Pennsylvania Law School for a conference on targeted killings.  The idea was to bring together experts in diverse fields – international law, legal and moral philosophy, military law, and criminal law – into...

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31 May

[Jason Webb Yackee is an Assistant Professor of Law at the University of Wisconsin School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. It’s a pleasure to receive such thoughtful (and in Professor Wong’s case, humorous) feedback on my short VJIL Essay, and I greatly appreciate their engagement with the piece. I intended the Essay to be provocative but not absurd in its policy recommendations. My main suggestion (that states should think seriously about incorporating “corruption defense” in their investment treaties) is, I think, not inconsistent with the views of either commenter. Neither is my more basic suggestion, which is that even in the absence of corruption-specific BIT language, the fact of an investor’s involvement in public corruption related to its investment is likely to be of legal relevance to the investor’s ability to fully access the procedural and substantive protections of BITs. In other words, I think that we would all probably agree that there is already a viable “corruption defense,” and also that it might be useful to better specify the contours of the defense through explicitly corruption-related treaty language. Where we primarily differ is on the desirable contours of the defense. My scheme is self-consciously pro-state. It imposes serious consequences on the investor who engages in corruption. It is, as Professor Bjorklund accurately points out, supply-side in its focus, just as are the U.S. Foreign Corrupt Practices Act and its non-U.S. equivalents. This supply-side focus bothers Professors Wong and Bjorklund. It seems unfair to them to exclusively punish investors when corruption, by its nature, takes two to tango. It doesn’t bother me as much to sanction one partner and not the other. My premise — unstated in the essay, I admit — is that the supplier of corruption (here, the investor) is probably in some meaningful sense the “least cost avoider” of corruption. The tort law equivalent is a liability regime that places the full cost of compliance on the person who throws a banana peel on the sidewalk, rather than on the inobservant pedestrian who slips on it and falls. My sense (and it is just that at this point) is that it is comparatively difficult for developing countries already afflicted with corruption to prevent it, let alone to eradicate it. It is hard for states to monitor and control the actions of their agents, or to adjust incentive structures to discourage corruption. In contrast, corporations have an advantage in implementing effective training and compliance programs, in disciplining corporate actors who violate corruption laws, and in rewarding those who abide by corporate anti-corruption policy. Indeed, corporations are already spending heavily to implement effective corruption-prevention programs in order to avoid violations of or liability under the US and UK anti-bribery statutes, the penalties for violation of which can be immense. I would suggest, in effect, that the BIT regime should piggyback on these efforts by imposing on companies whose compliance systems fail the additional cost of the loss of their BIT privileges, rather than insisting that the high-cost avoider — the state — be expected to successfully duplicate the already expensive anti-corruption investments of multinational corporations.
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31 May

[Jarrod Wong is an Associate Professor of Law at the University of the Pacific McGeorge School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. This intriguing Essay by Jason Yackee proposes that host states may well have a corruption defense against claims brought by investors under bilateral investment treaties (BITs) based on underlying investment contracts that, while facially unobjectionable, have been procured by bribing public officials. The argument extrapolates nicely from the denial of claims in an arbitration, decided in 1963 by Judge Lagergren, involving a politically well-connected Argentine seeking to enforce a “commission” contract guaranteeing some percentage of state contracts awarded by Argentina to the foreign investor, and in the World Duty Free ICSID case, in which the investor sought compensation for expropriation by Kenya of a concession acquired by bribing the then President of Kenya. While neither claim arose under BITs, both were denied on grounds of violating international public policy, which one --- or least these tribunals --- might conceivably extend to BIT claims. However, I wondered whether Yackee, in his determination to clear a path to the promised land, sufficiently acknowledges the perils on the road. For instance, neither tribunal above was expressly authorized to apply international law; indeed, ICSID tribunals --- which determine many BIT claims --- are to apply “applicable” international law only “in the absence of [the parties’ agreement on applicable law].” While noting this fact, Yackee was prepared to interpret the willingness of both tribunals to invoke (with how much deliberation?) international law as indicating an inherent authority to do so, rather than question the assumption. All the more troubling when the supposed “rule” of international law applied is of the nebulous variety conveniently labeled “international public policy.” (The wry among us might freshly inquire as to how this description differentiates other international law rules.) Shouldn’t we require such policy to crystallize into something akin to customary international law before permitting its application under these tenuous circumstances? Further, should the host state bear no responsibility when a state official accepts the bribe and is equally culpable? The World Duty Free tribunal neglected to weigh this fact in the context of international public policy, although it considered the issue under applicable national laws, only to hide behind Latin maxims ---- the in pari delicto and ex turpi causa principles --- in refusing to calibrate the equities more precisely. (Really? The President of Kenya walks off with $2 million, and the best the Tribunal’s got is a dead language?) Would the World Duty Free outcome not perversely incentivize host states to encourage bribery behind dummy anticorruption legislation since this gives license to flout BIT obligations?
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31 May

[Andrea K. Bjorklund is currently the Visiting Professor (Guest of the L. Yves Fortier Chair in International Commercial Arbitration), McGill University Faculty of Law; she is also a Professor of Law at the University of California, Davis. Daniel Litwin is a B.C.L./LL.B. Candidate, McGill University Faculty of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this series of discussions. We are very happy to participate. Jason Yackee’s Essay takes what might be described as an orthodox position on corruption. It rests on a long line of international commercial arbitration precedents whose focus has consistently been on the “supply” side of corruption and not on its “demand” side. (We are grateful to McGill student David Rapps for this nomenclature). This focus on the “bribe payer” (supply side) is reminiscent of the approach taken by the US Foreign Corrupt Practices Act and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Professor Yackee adopts this same focus in suggesting that an investor’s corrupt or fraudulent behavior should prevent it from taking advantage of the protections afforded by any applicable investment treaty. Yet experience in the fight against drug trafficking suggests that seeking to limit supply without eradicating demand will never be successful. The UK apparently takes this view: its recently-adopted Bribery Act penalizes both bribing (supply side) and receiving bribes (demand side). The same even-handed approach to fighting corruption is present in the anti-bribery laws of Germany and of China. We too believe that if both an investor and a host state engage in corrupt behavior, sanctioning both is the best way to achieve the goal of eradicating corruption that has animated the international community (at varying levels of enthusiasm) for the past several decades. Like Professor Yackee, we agree with the position taken by the tribunal in World Duty Free v. Republic of Kenya that corruption is properly viewed as a violation of transnational public policy or truly international public policy. We cannot, however, agree with his refusal to adopt a balanced approach that would proportionally ascribe blame to all parties involved in a corrupt exchange. Penalizing only the party actively committing the wrong is reminiscent of the approach taken in the investor misconduct cases cited by Professor Yackee. But in both Inceysa Vallisoletana S.L. v. Republic of El Salvador and Plama Consortium Ltd. v. Republic of Bulgaria the investors were guilty of misrepresentation, a unilateral offense involving a single guilty party. Since corruption is normally bilateral, any parallels between cases involving misrepresentation and corruption should be properly nuanced.
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30 May

[Alvaro Santos is currently an Associate Professor of Law at the Georgetown University Law Center.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. I am grateful to Professors Robert Howse and Andrew Lang for their comments on my Article. I am an avid reader of their work and am honored for the opportunity to have this exchange. My Article argues that contrary to the commonly held assumption that WTO legal obligations overly restrict countries’ regulatory autonomy, there is still flexibility in the system for countries to carve out regulatory space and pursue heterodox domestic economic policies. The Article seeks to show that often the biggest obstacles to experiment in domestic economic policy are not the trade legal obligations but the beliefs that assign to the WTO a specific form of trade liberalization. These habits of thought assume a determinate meaning in what constitutes a trade distortion when these determinations are in fact the result of policy and value-laden choices. One concrete implication is that contrary to what is often assumed, the hands of the policy decision-makers in developing countries are not tied. Both Professors Howse and Lang seem to agree with the Article’s thesis about the existence of greater policy flexibility in the WTO and raise important points about its implications. I would like to respond by highlighting three themes that stem from their comments: the role of technical expertise, the institutional strength of the WTO’s Dispute Settlement Body (DSB) and the conceptual scope of policy autonomy. First, let me say a word about technical expertise. Professor Robert Howse’s work has been at the forefront of showing the wider range of policy choices available under the WTO agreements. In his response Howse provides an excellent example of narrowing down of policy flexibility using the TRIPs agreement. Although compulsory licensing is often interpreted as being available only in cases of emergency, it is indeed generally available. Howse emphasizes the importance of independent expertise on WTO law for developing countries. A kind of expertise that does not take for granted the conventional wisdom prevalent in the global trade policy elite, the WTO Secretariat or powerful interest groups but that looks instead at how to serve the needs of developing countries. This point relates to the concept of “development legal capacity”, which I use to argue that knowledge and expertise can be deployed to contest dominant interpretations of WTO to experiment domestically with heterodox economic policies. Howse makes clear that different political, social and philosophical views animate different interpretations of what the WTO obligations mean. Here, as in much of his work there is an impetus for the democratization of the global trade regime and for a vibrant public debate about the values we want the system to embrace that I find compelling. Similarly, Professor Lang notes that if developing countries are to be successful in advancing their economic agendas they ought to pay attention not only to their legal capacity in litigation but to the structural conditions that influence the receptivity or the impact that their arguments will have on legal interpreters. I agree and indeed regard countries’ developmental legal capacity as encompassing that kind of work. Lang points to the role of public criticism in the environmental cases. Similarly, one could see the access to medicines campaign in the context of the AIDS epidemic as another important example. Developing countries like South Africa and Brazil, as well as many NGOs, managed to reframe the understanding of TRIPs so that it could not be read to limit states’ rights to pursue their public health objectives. Thus, I agree that countries’ legal capacity and lawyering strategies can’t be limited to litigation. Countries need to devise strategies that would make their arguments gain traction in Geneva and among the trade policy network. This could include very visible work like public campaigns and forging political coalitions as well as the less visible and more gradual work of WTO committees, as Lang has examined elsewhere.
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30 May

[Andrew Lang is a Senior Lecturer in Law at the London School of Economics and Political Science.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. It is a pleasure to be asked to comment on Alvaro’s most recent paper on ‘Carving out Policy Autonomy for Developing Countries in the World Trade Organization’. I spent a happy few hours reading and digesting the thoughts that Alvaro offers in this paper, and am richer for the experience. I am in sympathy with essentially all of the starting points of the analysis: that WTO law is more ambiguous than is usually appreciated; that it therefore is potentially more flexible than is commonly acknowledged; and that law is not epiphenomenal to relations of power in global trade politics but rather partly constitutive of them. And I appreciate the importance of what I take to be the article’s core point: that building the ‘legal capacity’ of developing countries in the trade regime should mean more than just building their capacity to bring and win cases in the WTO, but more broadly to integrate developing countries’ WTO legal strategies much more closely with their development goals and policies, to shape the terms of their integration into the global trading order. One thought that occurred is that if this project is to be successful, then work on building the ‘capacity’ of developing countries in WTO dispute settlement needs to be complemented by research into the ‘receptivity’ of the dispute settlement system to the arguments that developing countries make. The power to shape the interpretation of the law in WTO dispute settlement, in other words, is not just a function of the legal capacities of the parties to a dispute, but also about the structural conditions which make certain legal arguments appear more convincing, persuasive, institutionally appropriate, textually grounded, and so on to legal interpreters. Alvaro tells the story of the evolution of the law through US litigation of the Tuna and Shrimp disputes as an illustration of the winning strategies of Repeat Players, which might usefully be replicated by developing countries. But isn’t it also possible to explain the change in the law over the course of these cases as in part a response on the part of the regime to its greater public visibility and the rise of public criticism of the WTO? Presumably both play a role – the point is simply to say that building the capacity of developing countries to use the WTO dispute settlement system strategically would ideally be complemented by work on the conditions which make the dispute settlement system receptive (or not) to the strategies that developing countries thereby pursue. A related thought has to do with the pressures that this project will place on the WTO dispute settlement system. Alvaro, and other writing in this area, are right to say that struggles over the interpretation of WTO law are likely to become an even more central aspect of global trade politics over the next decades, partly as a result of more and more Members building their legal capacity in precisely the way Alvaro describes. Is the dispute settlement system equipped at present to respond to the challenges that this will pose? Does it currently possess a sufficient set of juridical tools and techniques to carve out both a legitimate and effective role for itself as it finds itself ever closer to the centre of trade politics? One of the tasks for the next decade or so it to try to craft a way of ‘doing law’ in international economic governance which bears the weight that strategies such as those described in this article will necessarily place on it.
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30 May

[Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Professor Alvaro Santos's Article brilliantly illustrates how developing countries can use effectively the WTO dispute settlement system not only to defend but to promote their chosen economic developing strategies, even where these (as in the case of Brazil) diverge considerably from the neo-liberal, Washington Consensus approach that is often assumed, partly erroneously, to be embedded in the WTO treaties. His Article raises the question of whether the policy space available under the treaties is inadequate or whether in fact developing countries have been in some cases overly-influenced by what elites with a neo-liberal orientation have told them the provisions in question mean. To my mind, one of the clearest examples of the problem of who controls the understanding of what the treaty means is that of compulsory licensing under TRIPs. I hear it again and again suggested that TRIPs only allows compulsory licensing if there is some kind of emergency or crisis. This is simply not so. The TRIPs agreement merely imposes fewer conditions in the case of an emergency. But it makes compulsory licensing generally available. In some countries, there is no independent expertise about WTO law. The government and the people only hear the views of officials who have been more or less inducted into the global trade policy elite, or those of the WTO Secretariat, or those of interests who are using the notion of WTO illegality to block a policy they oppose for other reasons. Today, however, NGOs are playing an increasingly useful role in entering policy debates and contesting interpretations that are particularly restrictive of policy space (ICTSD's work on TRIPs is a good example). To be able to do this NGOs had to reposition themselves at least partly from being anti-globalization advocates trying to oppose and delegitimate the system to knowledgeable and shrewd lawyers who see the tensions, flexibilities, and balances in the existing norms that can be a basis for contestation within the legal framework as it stands. I am still struck by how journalists (many, though not all), who can be important in transmitting the meaning of WTO law in a domestic policy debate, will go to the same experts-mostly trade officials, lobbyists, or retired officials, and a few professors who are also consultants or closely connected to the WTO Secretariat-and take their views as the correct ones concerning the meaning of WTO law. When they are writing about questions of criminal law or constitutional law, journalists are much less naive: They often will try and get the views of experts with conflicting opinions, and they know that, at some level, political or social or philosophical views can matter to how one thinks the law should be interpreted and applied. In the case of trade law, they are often just looking for the conventional wisdom.
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