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21 Nov

[Brad R. Roth is a Professor of Law at Wayne State University in Detroit, Michigan, where he teaches international law, comparative public law, and political and legal theory] In “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary,” Zoran Oklopcic gives an enlightening account of a set of related approaches to the international norm of self-determination of peoples.  In this rendering, I have the honor of being cast as the representative of “Empty”:  that is to say, my approach to international legal pluralism “empties” the self-determination norm of the contents that might otherwise be supplied by ethno-nationalism or by “the democratic ideal of the consent of the governed.”  Although the expression had not occurred to me, I am pleased to defend – indeed, perhaps, to insist on – an “empty” conception of self-determination in preference to the alternatives on offer. In a superficial sense, the term “self-determination” necessarily implies an emptiness as to the substance of what is determined; otherwise, the determiner would not be the “self.”  Yet on closer examination, externally-dictated substance inevitably creeps into the emptiness. The self-determination formula generally withholds judgment about what should count as legitimate public order in particular territories, but in addressing myriad local political struggles – struggles not only over what is determined, but over the delimitation of the self – it nonetheless deviates from impartiality in two ways.
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20 Nov

[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian...

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20 Nov

Columbia University's Jagdish Bhagwati and Francisco Rivera-Batiz have an excellent piece in the November/December issue of Foreign Affairs in which they throw up their hands at the prospect of comprehensive immigration reform and look to the states for some progress on the issue. The piece served as the basis for Bhagwati's delivery last week of the 2013 Emma Lazarus Lecture,...

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20 Nov

[Devika Hovell is a Lecturer at the London School of Economics] Academics should be in the business of proposing new ideas, though it is only through close scrutiny that deep truths can be winnowed from deep nonsense. I am very grateful to the LJIL and Opinio Juris blog editors for providing the opportunity for closer scrutiny of the ideas in my article, ‘A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-making’. I am particularly grateful to Professor Eeckhout and Professor de Wet for their generous and insightful engagement with these ideas. I respond to their comments below. The main idea motivating the article is that it may be necessary to re-conceptualize the judicial function of domestic and regional courts when courts engage in the review of decision-making by international institutions such as the Security Council. Never has this been more evident than in the wake of the decision by the European Court of Justice in Kadi II where the Grand Chamber assumed the power to engage in the ‘full review’ of sanctions listings by the Security Council Sanctions Committee, including a determination as to whether the reasons for sanctions listings by the Council were well founded in fact. I argue that the assumption of such authority by courts to review decisions sourced in international institutions could be regarded as a move as revolutionary as Marbury v Madison and equivalent kairotic moments across domestic jurisdictions. It is not a move that should be made without significant thought being given to the legitimizing foundations of judicial authority in this context. When domestic and regional courts engage in such review, they cannot ignore the broader system in which they operate and the powers and limitations of the domestic judiciary as defined within that broader system. In particular, I argue that two traditional features of the domestic judicial function, namely (1) the notion of bindingness (restricting courts to the application of existing binding law) and (2) the use of hierarchy (as a description of the relationship between judicial and political organs as in judicial supremacy or parliamentary sovereignty) can prove problematic when applied to the review of international decision-making. I argue for a reconceptualization of the judicial function in these circumstances: in brief, domestic courts should recognize that they have enhanced power in this context stretching beyond law enforcement to law-making, though more limited authority in the sense that the persuasive value of their decisions is more important than their binding nature. Domestic courts engaging in review of Security Council decision-making play a valuable role, but their role is not the traditional one of acting as ‘transmission belts’ for domestic law. Instead, domestic courts act as ‘junior partners’ in a broader collaborative enterprise to determine legal principles applicable to international decision-makers.
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20 Nov

[Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law, University of Pretoria, as well as Professor of International Constitutional Law, Universiteit van Amsterdam.] The article has a refreshing perspective on the relationship between courts and the UNSC in a decentralized international legal order. Devika aptly notes ‘that the reliance by (domestic) courts on a public law model of the judicial function has served to distort and fragment applicable international law’ [p 580]. She tries to find middle ground and an appropriate place for the judicial function through what she refers to as the ‘dialogue model’ [p 590]. In accordance with this model, domestic courts can either (i) invalidate UNSC resolutions, (ii) interpret them in a human rights friendly way (iii) declare resolutions incompatible with human rights, or (iv) abstain from review [p 594]. She favors option (ii) and submits that the ECtHR’s Nada-decision in 2012 is ‘the best example to date of a court acting to harmonize conflicting obligations through interpretation rather than invalidation of Security Council resolutions’. My current response tests this assertion and is based on a more extensive appraisal of the Kadi and Nada decisions entitled: ‘From Kadi to Nada: judicial techniques favoring human rights over United Nations Security Council sanctions’. The response concludes that while a human rights friendly interpretation indeed has the potential of being less fragmentary it also has its limitations in this regard. At the outset, it needs to be pointed out that no court or other governmental organ can ‘invalidate’ UNSC decisions. All that a domestic state organ (or regional organ in the case of the EU) can do is to invalidate the implementing measures, as a result of which UNSC measures will not apply (in an unqualified manner) within a specific jurisdiction. The measures themselves remain binding on the international level until such a time as the UNSC chooses to amend or withdraw them. In such a situation one is left with a ‘limping decision’. Furthermore, the most influential decisions in which the implementing measures of UNSC decisions were at issue generated from regional courts and not domestic courts, namely the ECJ and the ECtHR. Whereas the former’s approach in the Kadi decisions to the conflict between the right to judicial protection and obligations resulting from UNSC decisions are comparable to that of a domestic and dualistically inclined court, the ECtHR in the Nada case attempted to find a solution through harmonious interpretation of conflicting obligations under international law. While Devika refers to the technique of human rights friendly interpretation as ‘judicial dialogue’, I prefer to describe it as the technique of systemic integration.
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20 Nov

[Piet Eeckhout is a Professor at University College London and a leading authority in EU Law and international economic law. He notes that he has been involved in the Kadi litigation on the side of Sheikh Kadi.] Devika Hovell's paper is an excellent attempt at conceptualising the relationship between the domestic judge and the UN Security Council (UNSC).  That relationship has come about as a consequence of the UNSC's smart sanctions policies, which intrude in the daily lives of those which are subject to them.  Most of the significant case law is in the sphere of counter-terrorism, but the policies are wider, and also target regime members. The attraction of Hovell's dialogue model is that it tries to plod a much-needed middle course - or to find a sweet spot - in a triangle of three unsatisfactory options: (a) the domestic judge declines to review UNSC Resolutions or their implementation; (b) the judge reviews domestic implementation, thereby jeopardising the implementation of the resolutions; or (c) the judge arrogates to herself the power to review the resolutions under international law.  The sweet spot consists of rejecting bindingness and hierarchy, which are features of a public-law model, to the benefit of a dialogue model which urges domestic courts to employ tools of consistent interpretation and of declaration.  At most, UNSC resolutions ought to be interpreted consistently with human-rights norms, and where that is impossible the judge should do no more than issue a declaration of incompatibility, to allow the UNSC to react and adapt. The paper is perceptive and clear, and a major contribution to the literature.  A dialogue is of course needed, and its merits are undisputable.  To craft a dialogue model, however, is less straightforward. 
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19 Nov

[Maarten den Heijer is assistant professor of international law at the Amsterdam Center of International Law and member of the editorial board of the European Human Rights Cases (EHRC) and contributor to the Dutch Journal for Human Rights] Praise is due to the collaboration between Leiden Journal of International Law and Opinio Juris in providing this platform for reflection and discussion – in this instance on my paper on diplomatic asylum and Julian Assange. I much enjoyed reading the responses of Gregor Noll and Roger O’Keefe and am greatly appreciative for their genuine and refreshing engagement with my arguments. I take the liberty to just briefly reflect on what I consider their most provocative points. Although threading on different paths of reasoning, both Gregor and Roger caution against presenting the 1950 Asylum Case as still reflecting the international law on diplomatic asylum as it stands today. The primacy accorded to territorial sovereignty by the ICJ judges at that time and their framing of a grant of asylum to a fugitive from the authorities of the receiving state as necessarily constituting an intervention in the domestic affairs of that state, so they argue, beg further reflection at the least.
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19 Nov

[Dr. Roger O’Keefe is a University Senior Lecturer at the University of Cambridge and the Deputy Director of the Lauterpacht Centre for International Law] Maarten Den Heijer’s excellent and enjoyable article ‘Diplomatic Asylum and the Assange Case’ provides a welcome account of an area of international law in which vagueness and uncertainty have too long been the order of the day. On its own terms, which accept as read the International Court of Justice’s statements in the Asylum case, it is coherent and by no means unpersuasive. Whatever one might say as to the merely subsidiary role of international judicial decisions in the determination of rules of international law, it takes a certain doctrinaire obduracy or plain arrogance to dismiss out of hand what the ICJ has declared. All the same, the Court is not beyond unreflective restatement of the received wisdom, and it is not impertinent to engage in the heuristic exercise of proceeding from first principles on any point pronounced upon by the Court. One point that might profit from just such an exercise is the question of the lawfulness of the grant of diplomatic asylum by a sending state, by which is meant that state’s grant of harbour within its inviolable diplomatic premises to a fugitive from the competent authorities of the receiving state. The starting point of any such analysis from first principles must be the Lotus presumption. A state is at liberty to do what it is not prohibited by a positive rule of international law from doing. In this light, there is no need to identify a positive right on the part of the sending state to accord diplomatic asylum. Rather, one needs to point to a positive prohibition on the practice. The two most likely sources of any such prohibition are, first, diplomatic law and, secondly, the prohibition on intervention in the affairs of another state. But it is not self-evident that either prohibits a sending state from according diplomatic asylum, at least as a general rule. It is difficult to identify in diplomatic law a positive prohibition on the use by the sending state of the inviolability of its diplomatic premises to prevent the authorities of the receiving state from securing custody of a wanted individual. The VCDR contains no specific prohibition on the practice. Nor do the inconsistency of state practice and the ambivalence of its accompanying opinio juris suggest any such rule. Any prohibition on the practice of diplomatic asylum, insofar as it derives from diplomatic law, must be deduced from other rules of this body of international law. The rule regularly highlighted in this regard, as it is by Maarten [at 413-4], is article 41(3) VCDR, which provides in relevant part that the premises of the mission ‘must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law’. In this regard, pace Maarten [at 413], ‘incompatible with’ plainly means ‘inconsistent with’ or, synonymously, ‘contrary to’: incompatibility is not a question simply of whether the impugned conduct ‘falls outside the scope of ordinary diplomatic functions’, whatever ‘ordinary’ may mean. In turn, the functions of a diplomatic mission within the meaning of article 41(3) VCDR are the subject of article 3(1) VCDR, which states that these functions ‘consist inter alia in’ the activities specified in subparagraphs (a) to (e). As indicated by the words ‘inter alia’, the list given in subparagraphs (a) to (e) is not exhaustive, and it is not utterly inconceivable that one of the functions of a diplomatic mission may, in appropriate cases, be the furnishing of diplomatic asylum. But be that as it may. More to the point is that the only one of the five functions of a diplomatic mission specified in article 3(1) with which the grant of diplomatic asylum could be considered incompatible is that mentioned in article 3(1)(e), namely ‘promoting friendly relations between the sending State and the receiving State’. But, contrary to what Maarten considers arguable [at 413-4], it is evident from the consistent practice of states that not every act on the part of a foreign diplomatic mission of which the receiving state disapproves is to be characterised as incompatible with the promotion of friendly relations between sending and receiving states. Something positively inimical to the interests of the receiving state is seemingly required. To this end, it is of course perfectly plausible that harbouring a fugitive from the criminal justice system or other authorities of the receiving state is to be considered an inimical act. Yet it is hard to admit that this is so unless such harbouring is itself contrary to international law. In other words, it is not easy to accept that an act in itself internationally lawful is incompatible with the promotion of friendly relations between the sending and receiving states. This brings us to the prohibition on a state’s intervention or interference in the internal or external affairs of another state.
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19 Nov

As Mark Kersten discusses today at Justice in Conflict, one of the reasons the Security Council rejected Kenya's request to defer the Kenyatta and Ruto prosecutions is that it believes the issue of their presence at trial is better addressed by the Assembly of States Parties. Here is how Mark summarizes what could happen at the ASP: At this year’s ASP,...

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19 Nov

[Gregor Noll is a Professor of International Law at the Faculty of Law at Lund University in Sweden, and is an expert in International, Theory of International, and Refugee and Migration Law.] With admirable calm and clarity, Maarten den Heijer’s text considers the relationship between territorial sovereignty and diplomatic inviolability played out in diplomatic asylum. Describing both poles as ‘legal trump cards’ in their own right, he argues the insolubility of their conflict in law. He writes ‘that the status quo, although not guaranteeing a uniform of “just” practice of diplomatic asylum, provides a befitting equilibrium between the right of the receiving and sending states’. This equilibrium, befitting or otherwise, ‘puts incentives into place for avoiding and resolving disputes by diplomatic means’. As it were, the international law of diplomatic asylum is incapable to offer more at this historical stage. I greatly appreciate den Heijer’s ability to keep that conflict alive throughout his eminently readable text. At large, I have no quarrel with his conclusion. Yet I feel a bit hesitant to align myself fully with it yet. This is mainly for two reasons, both related to the way he tells the story of diplomatic asylum.
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18 Nov

[Dr. Paul R. Williams is the Rebecca I. Grazier Professor of Law and International Relations at American University and the co-founder and President of the Public International Law & Policy Group and Roushani Mansoor is a former Fulbright-Clinton Fellow who worked in Dhaka, Bangladesh as a Special Legal Assistant for the Ministry of Law, Justice, and Parliamentary Affairs (on issues unrelated to the Tribunal). She is currently a Law Fellow at the Public International Law & Policy Group.]

Cheers met the first verdict of the International Crimes Tribunal of Bangladesh, which sentenced Abul Kalam Azad to death in absentia.  Less than a month later, shouts of “ami, tumi, Bangalee, Bangalee” – meaning “me, you, Bengali, Bengali” – echoed in the streets of Dhaka in reply to another, less popular Tribunal verdict.  The Tribunal had handed down a life sentence to Abdul Qader Molla, a punishment many Bangladeshis felt did not match the severity of Qader Molla’s crimes.  The Tribunal, mandated to try alleged war criminals from the 1971 Liberation War, aimed to bring closure to Bangladesh’s bloody birth.  These moments were not just responses to justice served, but demonstrated a transformation in the Bangladeshi national identity – a transformation in which the Tribunal, as a mechanism of justice, is playing a crucial part.

The Liberation War pitted Bengali Freedom Fighters against the Pakistani Army and local collaborators from anti-liberation groups.  These collaborators aided the Pakistani Army, executing attacks and massacring villagers.  The nine-month war secured independence for Bangladesh, but at a huge cost.  Estimates range from 300,000 to 3,000,000 killed often in gruesome ways; countless more were tortured.  Over 200,000 women were subject to rape, and as many as 10 million fled their homes towards India to escape the violence.  Over forty years later, the Tribunal operates as a domestic exercise of justice aimed at trying atrocities committed during the war.  It strives to erase the attitude of impunity and deliver justice – however delayed – to victims and victims’ families still healing from horrific conflict.

The Liberation War fought for the independence of Bangladesh, and a brand new Bangladeshi national identity was born out of this conflict, largely grounded in this struggle.  The generations who lived through the Liberation War had to fight and sacrifice for their national identity but they earned the right to call themselves Bangladeshi.  Generations born after the war are certain they are Bangladeshi – it is their birthright.  These generations, however, are struggling with the meaning of being Bangladeshi.  They are undergoing their own fight for a national identity, one that is predominately based on a war they did not witness.

The one war-related relic these generations have to hold onto is the Tribunal.  As a legacy of that liberation struggle, the Tribunal has been intrinsically intertwined with the Bangladeshi national identity.  Demand for the creation of the Tribunal began immediately after the Liberation War, and legislation creating the Tribunal was passed in 1973.  Subsequent natural disasters, political assassinations, and military coups in Bangladesh prevented the government from actually constituting the Tribunal.  However, popular support for the Tribunal did not waver.  The hope for a Tribunal was given new life during the 2008 elections where the Awami League campaigned on the promise that if elected, it would constitute the Tribunal during its term.  Winning an absolute majority in Parliament, Prime Minister Sheikh Hasina vowed to constitute the Tribunal and bring closure to the bloody birth of Bangladesh after over 40 years of waiting.

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