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ASIL on the IHL/IHRL Debate

Had the chance to catch at least one panel at yesterday's jam-packed annual meeting of the American Society of International Law. Happy to say, it was a good one, and timely: “International Human Rights Law, International Humanitarian Law, and the Implications for Coalition Warfare.” Ashley Deeks moderated, giving a summary of the ECHR’s latest jurisprudence in the area...

ASIL Cables: Interview with James Crawford

Recent guest-poster, Professor Tai-Heng Cheng, has an interview on ASIL Cables with Professor James Crawford, this year's recipient of the Manley O. Hudson Medal:

Tai-Heng Cheng (THC): Congratulations on receiving the Manley O Hudson medal, Professor Crawford.  Your many accomplishments are well known to our members, and I was wondering what achievements in your career have you found most meaningful? James Crawford (JC): Thank you.  There have been too many moments to mention them all, but perhaps there are a few that stand out.  There was my time on the Australian Law Reform Commission in the 1980s when I worked on indigenous rights, admiralty and state immunity – quite a mixture.  I have a special place in my memory for my first case before the International Court of Justice, Certain Phosphate Lands in Nauru, in which I acted alongside Ian Brownlie representing the Republic of Nauru. Another case before the Court which stands out for me was the Gabčikovo-Nagymaros Project decision, which was my first lead in the Court.  Serving as Special Rapporteur on State Responsibility in the years leading to the adoption of the International Law Commission’s Articles on State Responsibility, was a particular highlight.  Latterly I’ve enjoyed working with terrific teams on cases for Colombia and Costa Rica, among others.  And a recent intense effort was the 8^th edition of Brownlie’s Principles, which comes out in August. THC:  Looking back at the evolution of international law since 1945, what are some of the most significant developments? JC:  The most obvious developments have probably been in connection with the evolving position of the individual under international law – in the fields of international criminal law and international human rights law particularly.  Both of these fields were embryonic in the years following World War II and have since expanded exponentially.  Related to this is the development of investor-state arbitrations, with private entities bringing growing numbers of disputes against foreign states directly under bilateral and multilateral investment treaties, without needing to rely on diplomatic protection.  Our understanding of self-determination under international law has also changed since 1945, when it was primarily associated with decolonisation and the formation of new states, whereas it has since developed into a wider notion encompassing the ongoing guarantee of fundamental human rights and democratic accountability within existing states.  Some see these changes as an erosion of state sovereignty, but I would argue that sovereignty remains very much the foundation of our system of international law, and that the notion of sovereignty is flexible enough to accommodate modifications without collapsing altogether.

Comment Thread to Legal Adviser Harold Koh’s Statement on Syria

We thank Legal Adviser Harold Koh for guest posting the statement on Syria that he delivered earlier today at the American Society of International Law Annual Meeting.  As this posting is a release of a speech text and Legal Adviser Koh will not be online to respond to comments, we at OJ didn't place a comment thread under the released text. However, we open the following comment thread to...

Weekday News Wrap: Friday, March 30, 2012

At their fourth summit in New Delhi, the BRICS leaders established a high level working group to examine the creation of their own development bank. One commentator questions the feasibility and argues that it may result in a dilution of influence at the World Bank. The BRICS' Delhi Declaration confirms the primary role of the G20, which will be presided by Russia...

Inaugural Cambridge Journal of International and Comparative Law Conference: May 19-20, 2012

Our friends at the Cambridge Journal of International and Comparative Law are pleased to announce that at their upcoming conference - "Agents of Change: The Individual as a Participant in the Legal Process" - on 19 and 20 May 2012 there will now be two keynote addresses by: JUDGE ANTONIO AUGUSTO CANÇADO TRINDADE and PROFESSOR JAMES CRAWFORD SC Other highlights include a welcoming address...

ASIL Cables: 2012 Grotius Lecture

Our friends at ASIL Cables have posted Joanne Mariner's summary of the yesterday's 2012 Grotius Lecture at the ASIL's 106^th Annual Meeting:

Jakob Kellenberger, the President of the International Committee of the Red Cross (ICRC), kicked off ASIL’s 106th Annual Meeting with a stirring reaffirmation of the value of international law.  Delivering the Grotius Lecture on the meeting’s opening day, Kellenberger spoke of the role of international humanitarian law—the law of war—in reducing the harms caused by armed conflict. While acknowledging that international humanitarian law cannot by itself end wartime suffering, he insisted that its observance in armed conflict can go far to preserve human dignity, protect the vulnerable, and limit the horrors associated with war. As a prelude to Kellenberger’s speech, ASIL Executive Council member William H. Taft IV awarded Kellenberger ASIL’s Honorary Member Award, an annual award given to non-U.S. citizens who have made distinguished contributions in the field of international law. Taft’s introductory remarks set the stage, perhaps inadvertently, for the most memorable and emphatically-stated passage in Kellenberger’s speech.  Having served as State Department Legal Adviser during President George W. Bush’s first term, Taft commended Kellenberger for his insistence that the Geneva Conventions be respected “in the conflict with Al Qaeda and other terrorist groups.”  (Taft himself had been on the losing end of a struggle within the administration over whether Geneva Convention protections applied to Taliban and Al Qaeda members captured in Afghanistan.) Taft’s references to the “conflict with Al Qaeda”—a phrase he used twice—reflect the view, which the present U.S. administration shares, that the United States is engaged in an armed conflict with Al Qaeda that is not limited to the current fighting in Afghanistan. It is this posited armed conflict that the United States relies upon in justifying drone strikes in Yemen, indefinite detention at Guantanamo, and the use of military tribunals to try suspected terrorists like Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri.

Weekday News Wrap: Thursday, March 29, 2012

North Korea has reportedly started fuelling a rocket for launch next month In a surprise move, Myanmar has invited foreign observers to monitor Sunday's elections For the first time since 2010, Japan has executed three multiple murderers. The Guardian has live updates of the Arab-League Summit in Baghdad. Syrian President Assad has rejected any Arab-League initiatives to come out of the summit and the...

Can DSK Invoke Customary International Law to Dismiss His Civil Lawsuit? Probably Not

From all I've read, there is very little chance that a NY court will dismiss a civil lawsuit against former IMF chief Dominique Strauss-Kahn on the grounds that he enjoys diplomatic immunity.  I don't have the papers, but the description of his argument goes like this: Amit Mehta, one of Strauss-Kahn's lawyers, said his client's diplomatic immunity flowed from a 1947...

Upcoming Event: The ACLU in American Life

Our readers may find the following event, featuring Opinio Juris' Deborah Pearlstein, of interest: The New York Lawyer Chapter and Benjamin N. Cardozo School of Law Student Chapter of the American Constitution Society, and Floersheimer Center for Constitutional Democracy present: The ACLU in American Life Featuring: Adam Liptak, Supreme Court Correspondent, The New York Times Heather Mac Donald, John M. Olin Fellow, Manhattan Institute for Policy...

The “American Tort” Interpretation of the Alien Tort Statute

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.] The Alien Tort Statute (ATS), 28 U.S. C. §1350, says that an alien may sue in federal district court “for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Supreme Court recently asked for briefing on the question “whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Implicit in the question is a seeming concession: an alien tort occurring within foreign sovereign territory is still cognizable under the ATS if the alien plaintiff alleges violation of a U.S. treaty, such as the United Nations Convention Against Torture (CAT). For instance, if an alien alleges torture against another alien in a foreign country, then presumably the claim would be actionable under the ATS, despite the fact that both plaintiff and tortfeasor are aliens and the tort occurred in the territory of a foreign sovereign. In this limited sense (where a ratified treaty may be pled), even the Supreme Court seems to acknowledge a “universal jurisdiction” angle to the ATS. In an article I published in 2006 in the Columbia Law Review, I stated the view that the Alien Tort Statute had nothing to do with universal jurisdiction; it was, I argued, a pragmatic measure enacted by the First Congress in September 1789 to let aliens sue in the federal district courts for money damages in the event of harm to their persons or property when the United States had expressly or implicitly promised the aliens that no such harm would come to them. The ATS both provides a right of action and original jurisdiction in federal district court to aliens injured under circumstances implicating U.S. sovereign responsibility; it is therefore a federal law for purposes of Article III arising-under jurisdiction. Translated to a modern context, the ATS would plausibly be available to "extraterritorial" tort actions by alien detainees at Guantanamo Bay, and non-combatant aliens harmed in Afghanistan, Pakistan, or Yemen in the current war on terror. Such actions would be subject to immunities under the Federal Tort Claims Act, an after-enacted statute, with respect to most U.S. official defendants. And so the answer to the Supreme Court’s question about the extraterritorial application of the ATS is “whenever there is a tort occurring in the territory of a foreign sovereign the commission of which was the result of U.S. sovereign action or inaction when the United States had a duty under international law to prevent the injury to the alien plaintiff.”

ICRC-ASIL-WCL Conference on Challenges of IHL Today

If you are already in DC for the ASIL meetings and have some free time today (Wednesday), you might consider coming out to the edges of DC - to Washington College of Law, American University - for a conference sponsored by the ICRC, ASIL's Lieber Society (the laws of armed conflict interest section), and the Center for Human Rights and...