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Weekly News Wrap: November 25, 2013

Your weekly selection of international law and international relations headlines from around the world: Middle East Iran and six world powers clinched a deal to curb the Iranian nuclear program in exchange for initial sanctions relief, signalling the start of a game-changing rapprochement that would reduce the risk of a wider Middle East war, though a "tough road ahead" awaits those working to...

Weekend Roundup: November 9-22, 2013

This fortnight on Opinio Juris, Julian shared his impressions of the Asian Society of International Law Biennial Meeting in New Delhi, and summarized his unofficial notes on Judge Xue Hanqin's personal comments regarding China's non-participation in the UNCLOS arbitration started by the Philippines. Peter, meanwhile, was at the 2013 Emma Lazarus Lecture and found much to agree with in Jagdish Baghwati's proposals for state, as...

Somalia to Ratify Children’s Rights Convention (You Know What That Means)

Not otherwise newsworthy. . . except that it makes the US the only country in the world that will not have ratified it (full list of accessions here). It's a glaring manifestation of American exceptionalism, and not in a good way. With the Disabilities Convention making another go of it in the Senate, perhaps the US could turn the corner on its...

LJIL Symposium: A Response to Professor Brad R. Roth on (Empty?) Promises of Self-Determination

[Zoran Oklopcic is an Associate Professor of International Law at Carleton University in Canada. He focuses on self-determination, popular sovereignty in theory of constitutional law and on the theories of secession and territorial rights] I am grateful to Professor Brad Roth for engaging with my article, “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary”. In his response, Roth embraces my understanding of his account of self-determination as “emptied” of normative content, and, in fact, insists on rejecting projects that would seek to give it a more precise normative meaning. In other words, it is less so that my argument misses the target, than that his ‘emptied’ understanding of self-determination is robust enough to sustain a political critique. I say ‘political’, because the norm of self-determination is not just an object of legal exegesis; its understanding, perhaps more than any other norm of international law, betrays a particular political vision, not only of state-formation, but of the political ordering of the world as well. My project was not to offer a new jurisprudential reading of self-determination, nor to insist that the accommodation of nationalist pluralism must be reintroduced as part of “external” self-determination’s promise. In reading Roth’s, Cohen’s and Krisch’s recent contributions primarily as political theories of pluralism with an emancipatory promise, I was more interested to argue that global pluralist commitments have, in the past, been accompanied by global or regional political visions that have sustained them, and which have provided space for the recognition and accommodation of ethnocultural pluralism. For example, demands for the accommodation of national or racial diversity in some cases, such as in French West Africa in the 1950s, initially took the form not of external self-determination, but rather of the wholesale constitutional transformation of transcontinental empires, in a way in which it would have increased, if successful, the political stake of the imperial ‘periphery’ in the constitutional affairs of the metropole. I hasten to add that from a doctrinal point of view, there is little to disagree with Roth.

LJIL Symposium: In Defense of a (Relatively) “Empty” Conception of Self-Determination

[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.

Bhagwati in Foreign Affairs on Bottom-Up Immigration Reform

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,...

LJIL Symposium: A Comment on Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

[Gabriella Blum is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School.] In her rich and sophisticated essay, Janina Dill takes on the principle of distinction in international humanitarian law (IHL). She finds that while the principle obscures questions of justness (or unjustness) of cause or individual contribution to the war effort, and thus digresses from an ideal moral vision which accords each individual her dues, it is the best practicable principle in times of war. A more morally just targeting doctrine may have distinguished just combatants from unjust combatants or else ignored the combatant/civilian distinction altogether and just focused on individual contribution to the war. Yet, (un)justness of cause is mired in uncertainty (what Dill terms “an epistemically-cloaked forced choice”) and the complexity of the battlefield makes it impossible to determine individual contribution to the war. Consequently, any attempt to design a more nuanced doctrine of targeting will end up being impossible to administer and too vague to offer real guidance for belligerents, thereby violating the rule of law – a moral principle of its own. The simple principle of distinction under IHL thus ends up being, in Dill’s view, morally just on its own terms. Dill’s arguments engage with some long-standing debates within the law and ethics of armed conflict, successfully navigating the disciplines of philosophy and law, seeking coherence within each while reconciling their potential conflict. It is impossible to do justice to the many nuances and moves in her argument in this short commentary. Instead, I will attempt to defend my own proposal for amending the distinction principle within Dill’s framework, thereby engaging with her arguments.

Weekly News Wrap: Monday, November 18, 2013

Your weekly selection of international law and international relations headlines from around the world: Middle East Israel has secretly detained a suspected al-Qaeda biological weapons expert for more than three years, court documents disclosed, after the man appealed to the Israeli Supreme Court to free him. The president of Iraqi Kurdistan has called on Turkey's Kurds to back a flagging peace process with...