In association with the International Commission of Jurists

International Human Rights Law

01 Nov

[Michael D. Goldhaber serves as Senior International Correspondent and "The Global Lawyer" columnist for The American Lawyer and the ALM media group. His writes widely on human rights and corporate accountability, international arbitration, and global multiforum disputes. His e-book on Chevron will be published next year by Amazon. His first post can be found here.] I'm grateful for the very gracious and insightful comments shared by the eminent arbitrator Christoph Schreuer, the scourge of eminent arbitrators Muthucumaraswamy Sornarjah, and the wunderkind of arbitration scholarship, Anthea Roberts. Having solicited a wide range of commentary on my Article, I now must defend myself from friendly jabs on both flanks. Dr. Schreuer and Professor Roberts both argue thoughtfully that the relationship between tribunals and courts should be understood in a broader context. Along the way, Dr. Schreuer questions my realist view that arbitrators effectively review judges. In the course of a bracing systemic critique, Professor Sornarajah calls my desire for proportionality analysis and a plenary appeal within arbitration naive. I stand by my position that arbitrators are increasingly at odds with judges, and that they functioned like reviewing judges in several of the final awards surveyed (although I perhaps could have been more attentive to terminology). Dr. Schreuer helpfully distinguishes between vacating a decision (in an annulment) and replacing it (in an appeal), and argues that arbitrators do neither. But consider the results. When the treaty tribunal in Saipem v Bangladesh reinstated a contract arbitration award that had been nullified by a national court, it effectively vacated the court decision, and replaced it with a decision confirming the commercial arbitration. In White v. India, the tribunal stripped the national courts of jurisdiction because they were too slow, and effectively stepped in to confirm a commercial arbitration award. In Chevron v. Ecuador I, the tribunal stripped the courts of jurisdiction for being too slow, and expressly decided the court cases de novo under Ecuadorian law. Surely these results were functionally equivalent to appellate review. Likewise, when ATA v. Jordan finally terminated an ongoing court proceeding, it emphatically resolved the case in ATA's favor. I'm not sure how such a remedy should be categorized, but I cannot agree with Dr. Schreuer that it's "much weaker" than appellate review. I readily agree with Schreuer and Roberts on their main point: that judges and arbitrators interact in multifarious ways. My Article's opening passage acknowledged as much, and explained that I would dwell on arbitral review because it is the most neglected facet of their relationship Professor Roberts astutely observes that the relationship between tribunals and courts is triangular -- in the sense that arbitrators tend to review judges from poor nations, but to be reviewed by judges from rich nations. What she leaves unsaid is that judges in rich nations have historically deferred to arbitrators (whether out of ideology, correct interpretation of the law, or sensitivity to cross-border competition among the arbitration elites). I would therefore predict that the U.S. Supreme Court will overturn the D.C. Circuit's encroachment on arbitrators' turf in BG v. Argentina. If not, arbitration will simply flow away from UNCITRAL tribunals sited in the U.S., toward tribunals that are governed by either ICSID or the laws of arbitration-friendly European states. But either way, if they wish to sustain their power, arbitrators should take the hint: At least some courts in rich nations are deferring less because they perceive arbitrators as overweening. A lack of internal review may lead to external review. Although Professor Sornarajah and I share many perceptions -- for instance the need for transparency --, he views me as any self-respecting revolutionary views a reformer. He cannot understand why I would wish to fix an edifice with rotten foundations, rather than to blow it up.
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01 Nov

The most significant problem with the Order, of course, is the one I identified in my previous post: namely, that Rule 15bis applies only to "part heard" cases -- not cases that have been over for nearly two years. But it's worth noting that the Acting President has also disregarded a number of procedural requirements of Rule 15bis. Recall the...

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31 Oct

Dov Jacobs calls attention today to an ICTY press release announcing that the Acting President of the ICTY has assigned a new judge to the Seselj case, Mandiaye Niang, pursuant to Rule 15bis of the Rules of Procedure and Evidence. Here is the text of the rule, in relevant part (emphasis mine): (C) If a Judge is, for any reason, unable to...

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29 Oct

I refer, of course, to the British Navy's use of the music of Britney Spears to scare off Somali pirates: In an excellent case of "here's a sentence you won't read every day", Britney Spears has emerged as an unlikely figurehead in the fight against Somali pirates. According to reports, Britney's hits, including Oops! I Did It Again and Baby One More Time, are being employed by...

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28 Oct

[Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law at the George Washington University Law School. He is a member of the United Nations' International Law Commission.] For the next two weeks, the Sixth Committee of the U.N. General Assembly will be debating the Annual Report of the International Law Commission, covering its 65th session in Geneva held...

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28 Oct

The Sudan Tribune is reporting that the presiding judge in William Ruto's trial has threatened to have Ruto arrested if he continues to comment publicly on his case: October 2013 (THE HAGUE) – Kenya’s Vice President William Ruto was on Friday warned by the presiding judge in his trial at the International Criminal Court (ICC) to desist from making statements about...

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27 Oct

[Anupam Chander is Professor of Law at The University of California, Davis]

I am honored to have such a brilliant and prominent set of interlocutors from across the world discussing my book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. I am grateful for the sharp insights each of my commentators brings, and humbled by the praise they offer. Each of the commentators has selected a different aspect of the book to focus on in his or her remarks, and so I will respond to each in seriatim, chronologically.

Professor Michael Birnhack (Tel-Aviv) focuses on glocalization—the conforming of a global service to the local laws of the countries that it serves. Professor Birnhack is familiar with this phenomenon, having studied it himself in connection with the transfiguration of global copyright as it encounters local norms. Both glocalization and and its limiting principle—harmonization—are highly complicated processes. Professor Birnhack wisely observes that glocalization and harmonization are both subject to power variations across the world. This is an important insight—certain countries, industries, corporations, transnational organizations or interests are likely to hold more sway than others in determining any eventual balance between glocalization and harmonization. That would probably be true even if there were a global plebiscite, a possibility that seems quite remote. But Professor Birnhack notes that these shortcomings in the glocalization and harmonization principles I suggest do not render them unwise, as other alternatives are likely to prove worse along the metric he describes.

The University of Bern’s Mira Burri , editor with Professor Thomas Cottier of an important collection of papers on digital trade governance, elegantly describes the major shifts in international trade made possible by the Internet. Her broad perspective makes her an ideal interlocutor. She strikingly observes that “we are faced with a radically ‘messy’ governance landscape with many and overlapping institutions and actors of state and non-state nature, the effects of whose actions transcend national boundaries and cannot be neatly contained and controlled.” She characterizes the principles proposed in The Electronic Silk Road as follows: “The freeing of trade is matched by a batch of principles of regulating trade that are meant to ensure balance, provide for security and trust in cyberspace.”

I proposed that Opinio Juris invite Professor Paul Stephan (Virginia) because I admire his writing and hoped for a critical voice, and he hasn’t disappointed.

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26 Oct

I had the privilege last week of speaking in London at a superb Chatham House/Doughty St. Chambers symposium on the ICTY's recent high-profile acquittals in Perisic, Gotovina, and others. My co-panelists were John Jones, QC, Saif Gaddafi's ICC-appointed lawyer, and Elies van Sliedregt, the Dean of Vrije Universiteit Amsterdam. Chatham House's Elizabeth Wilmshurst was the moderator. I don't believe the symposium...

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25 Oct

In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence. It's decisions like these that make...

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23 Oct

Just Security has been kind enough to post my reply to an excellent post by Ryan Goodman. Here is the introduction: In a recent post here at Just Security, Ryan Goodman offered a novel – and characteristically intelligent – defense of the US position that it is involved in a non-international armed conflict (NIAC) not only with al-Qaeda, but also with al-Qaeda’s “associated forces.”...

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16 Oct

[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies, part of the Law Faculty of the University of Leiden.] The debate on the legality of a U.S. strike in Syrian territory is unlikely to produce consensus, in part because those involved in the debate take fundamentally different approaches to international law.  Unless the underlying commitments of each approach are brought to the foreground, contributors to the debate risk talking past each other.  As a result, an important opportunity will likely be lost. Prof. Harold Hongju  Koh, formerly of the U.S. State Department and now back at Yale, argued in favor of the potential legality of a U.S. strike in Syrian territory, as outlined by the U.S. government before the plan was placed on indefinite hold.  Prof. Carsten Stahn of Leiden University critiques Koh’s argument, ultimately supporting the bar on the use of armed force absent self-defense or U.N. Security Council authorization.  Koh then responded to Stahn and others, largely reiterating his earlier points, and Stahn provided a further rejoinder. I will not argue the merits of the debate, but rather highlight issues central to each scholar’s approach that merit further discussion by both sides.  Koh’s emphasis on the unacceptable results of a “rigid” approach is not likely to persuade a positivist focused on existing law.  Stahn’s exposition of possibilities and restrictions within the existing law may seem slightly beside the point for a reader who finds the likely results of restrictions on the (just) use of force intolerable. For the debate to continue productively, a good first step would be to candidly recognize the potential limitations of both positions.  Restrictions on the use of force, necessary to limit international armed conflict, may result in the commission of atrocity crimes that cannot be deterred by non-violent means.  Loosening restrictions on the use of force, even with the best of intentions, not only increases the potential frequency and intensity of armed conflict, but also may weaken the authority and function of international law more generally.  These are issues that should be tackled head-on, not minimized. I focus primarily on these blog posts by these two professors because I think they are exemplary in both senses of the word.  They are among the most well-argued pieces on the subject, and they demonstrate the strengths of their respective positions. Koh's Approach: Koh’s emphases—normative values, connecting law and policy, and a lawyer’s duty to play a leading and constructive role in interpreting law—are no accident.  They are a direct outgrowth of his long and fruitful engagement with the New Haven School of International Law.  In Koh’s 2007 evaluation of the New Haven School, he identifies a number of commitments the School has made, including normative values and connecting law and policy.  He emphasized that competing schools of international law such as those espousing a commitment to a “new sovereigntism” hold a depressing vision of international lawyers as yes men or scriveners, rather than architects, public servants, or simply “lawyers as leaders.”  In Koh’s 2001 An Uncommon Lawyer, he lovingly recalls examples of lawyers as “moral actors” who “guide the evolution of legal process with the application of fundamental values.”  In one of the most cited international law articles of all time, Koh’s 1997 Why Do Nations Obey International Law, he notes that the New Haven School “viewed international law as itself a decisionmaking process dedicated to a set of normative values” in contrast to “a set of rules promulgated by a pluralistic community of states, which creates the context that cabins a political decisionmaking process.”   (He also, notably, critiques past failures of the New Haven School and notes the critiques of others, demonstrating his own intellectual flexibility.)  In Koh’s 1995 A World Transformed, he recalls the 1974 founding of Yale Studies in World Public Order (which later became the Yale Journal of International Law) and recalls the demand for an evaluation of an ethical World Public Order, refreshed through the decades by scholars, including Koh himself.
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14 Oct

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project. An earlier post on this appears here.] Harold Koh and Daniel Bethlehem deserve credit for having launched this important and timely debate. Koh has formulated an excellent reply to critiques to his post which stands in the best tradition of debate over the prohibition of the use of force. As we all known, Article 2 (4) has been declared dead and rejuvenated too many times. It is thus legitimate to have struggles as to the proper way forward. I see merit in the need to map ‘current law onto modern reality’.  But I would argue that some of the underlying elements of his existing proposition of an ‘affirmative defence are rooted in tensions that are unlikely to be solved through discourse over the creation a new substantive exception to the prohibition of the use of force. A case-by-case assessment may be ultimately better than an abstract rule to accommodate the problems inherent in a formulation of a doctrine that has been controversial for centuries.  I would like to highlight three aspects that may require deeper reflection in the debate: (i) narratives regarding ‘progress’, (ii) the relationship between ‘threat of force’ and ‘use of force’, and (iii) the choice of the appropriate methodology for the way ahead.   1. Observational standpoints and narratives of progress Firstly, it is important to clarify observational standpoints. Koh presents change to the rule a ‘progress’ and adherence to it as stalemate. I have doubt whether the debate can be adequately addressed, let alone resolved, based on the dichotomy between a progress-adverse ‘absolutist’ view, represented by the illegal per se rule, and a modern ‘reformist ‘view’ which would argue that the rule is not ‘black and white’. It is an oversimplification to divide scholarly opinion into these two camps. Most international lawyers would acknowledge that the Charter is a ‘dynamic instrument’. It is a given, and not a point of controversy’ that it should be interpreted in light of its objectives and purposes. There are cases in which Art. 2 (IV) does not prohibit the use of force, such as intervention by invitation which raises difficult issues of the legitimacy consent in the context of civil war (as noted by Jordan Paust). The ICJ recognized in Nicaragua (Judgment, 27 June 1986, para. 175) that conventional and customary law on the use of force are not necessarily identical in content.  Even proponents of a strict interpretation of Article 2 (4) recognize ‘shades of grey’ and options for development. There may thus more agreement than divide. In my view, Koh takes a shortcut by criticizing international lawyers for having ‘become more comfortable stating rules than in figuring out how international law might help to push unfolding events towards the right resolution’. The roots of the controversy lie deeper. Koh’s position is based on a specific approach towards international law. His argument is based on the premise that international law is an instrument of problem-solving and a tool to facilitate decision-making processes over war and peace. This approach advocates different prerogatives than a more systemic vision of international law that regards norms and institutions as the centre of a normative system that protects collective interests and values and constrains behavior. This tension has been inherent in approaches to international law for decades. The main problem with Koh’s position is not so much the normative content of the proposition, i.e. the claim that use of force may in some circumstances be in the spirit of Charter principles and help ‘protect human rights. The fundamental difficulty of Koh’s argument is that it reduces the options for accountability of military action.  It shifts the balance from a centralized enforcement system to a decentralized system where nations become the arbiters over the legality of their claims to intervention. This causes fears and anxieties among many UN members. Koh’s plea for new abstract regulation would give formal recognition to the claim that the Council is an option à la carte than can be turned on and switched off in ‘hard cases’ where there is no agreement. Giving up this constraint weakens leverage for compliance and the need to justify choices of behavior before a collective forum, in circumstances in which international law is most important in debate. This is a position that many nations will be reluctant to sacrifice for the gain of greater clarity on the rule. One of the main dilemmas of ‘humanitarian intervention’ has been the question of ‘agency’, i.e. that action is carried out in the name of others. It has been inherent in humanitarianism since it its inception. R2P mitigated this dilemma through recourse to collective response schemes.  Koh’s suggested new rule turns a ‘blind eye’ to this. It fails to engage with the question how intervening nations could claim authority to speak for others/victims.  In the African Union, this dilemma has been mitigated by an institutional solution, i.e. consent under Articles 4 (h) and (j) of the Constitutive Act which recognizes
‘the right of the Union to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances, namely; war crimes, genocide and crimes against humanity’.
Koh’s suggested norm does not address such institutional safeguards.  It simply uses institutional support as one optional parameter to support the claim for legality. He suggests that the claim for exemption from wrongfulness would be  ‘strenghtened’ if intervening nations could demonstrate ‘that the action was collective’. This may simply not be enough.
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