I’ve been working hard this break teaching in Hofstra’s winter program in Curacao. But I couldn’t resist stepping away from the beach and posting on the India-US flap over the arrest of an Indian diplomat in New York. Dapo Akande at EJIL Talk! has two great posts on the consular and diplomatic immunity legal issues.  I have nothing to add, but wanted to focus on how the ICJ could actually play a role in resolving (or not resolving) this dispute.

As those following the incident may know, Devyani Khobragade, India’s deputy consul-general in New York, was arrested and charged with lying on her visa applications about the salary she was paying the maid she had brought from India.  As a consular official, Khobragade could only assert functional rather than absolute immunity. Most of the outrage in India is about her treatment after arrest (which does seem excessive to me as well), but the legal issues mostly have to do with her immunity from arrest.

As Dapo points out, India may now be asserting that at the time of the arrest, Khobragade had already been transferred to India’s U.N. Mission.  This might entitle her to the broader protections of U.N. diplomatic immunity as oppose to mere consular immunity. According to Dapo, Section 11(a) of the Convention on the Privileges and Immunities of the United Nations may grant her absolute immunity from arrest (but not from prosecution).  India may also argue shifting her to the UN mission now gives her immunity from arrest going forward, even if she wasn’t a UN diplomat at the time of her arrest. Thus, on this theory, Khobragade could at least leave the U.S., or even wander New York free from the possibility of arrest or detention, even though the criminal prosecution would go forward.

Much of this would turn on whether Khobragade would need U.S. consent to acquire diplomatic status within the U.N.  Again, I am far from expert on this but it seems a murky legal issue at best with plausible arguments for both sides based on  the U.S./UN Headquarters Agreement and the Convention on Privileges and Immunities of the United Nations.

Sounds like a case for international dispute settlement! It turns out there are mandatory dispute settlement procedures under both agreements.  The U.S./UN Headquarters Agreement allows the U.N. to take the U.S. to compulsory arbitration pursuant to Section 21. This would require the U.N. to side with India’s view on Khobrogade’s diplomatic status, but this is hardly impossible or even improbable that they would support a broad view of UN diplomatic rights and immunities.

Interestingly, India could also take the U.S. to the ICJ under Article VIII, Section 30 of the Convention on Privileges and Immunities of the United Nations.

SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement.

Somewhat surprisingly, both India and the U.S. have signed on to the Convention without trying to limit the effect of this provision through a reservation (as China and others have done).  Such a reservation may be of little effect anyway, but at least it would be an argument against ICJ jurisdiction.   So I think that India could bring an ICJ case seeking a provisional measure guaranteeing Khobragade’s immunity from arrest under Article 11(a).

It is possible the U.S. would simply ignore any ICJ order, but this is not quite the same as the Medellin cases.  First of all, it is the federal government rather than the state governments involved here, and the President probably has authority to order federal agents NOT to arrest Khobragade.  Furthermore, the U.S. interest here is far weaker than in the Medellin case, which involved individuals who had been convicted of murder.  In this case, the U.S. may be upset over allowing an alleged visa-fraudster to walk, but it is of a completely different magnitude than giving a new hearing to a convicted murderer.

In my view, it would be a perfectly legitimate exercise of presidential power to order executive branch officials to refrain from further action in this case. An ICJ provisional measures might provide a clearer justification for the President’s decision, although I think he probably has the authority right now to stop all of this.  But the ICJ might provide a face-saving way for both sides to resolve this deeply fractious incident.

In any event, it will be interesting to see if India chooses the ICJ route. Or if the US even invites an ICJ resolution of this conflict. Indeed, if India goes to far in its retaliations against US diplomats, the U.S. might take India to the ICJ under the Vienna Convention on Diplomatic Relations!

The current ICJ even has one Indian judge, and one U.S. judge. One problem for India is that its legal position is hardly flawless, and it could very well fail in the ICJ.  But if India thinks it has strong legal arguments (and they do look fairly strong to me), it seems like a textbook case for the ICJ. Indeed, since neither side shows any sign of backing down, I think the ICJ might actually be useful here.

Train wreck, fiasco, disaster, dumpster fire, bad joke, kangaroo court, show trial — take your pick, the description applies. Eviatar’s post at Just Security a while back is a must-read; here is but one particularly disturbing snippet:

Recent pre-trial hearings have revealed, for example, that the Guantanamo courtroom was equipped with microphones able to eavesdrop on privileged attorney-client communications; that the CIA was secretly monitoring the hearings and, unbeknownst to the judge, had the ability to censor the audio feed heard by observers; and that the meeting rooms where defense lawyers met their clients had been secretly wired with video and audio monitors, hidden in devices made to look like smoke detectors. In addition, all legal mail is screened by government security personnel, and documents previously deemed acceptable were later confiscated from the defendants’ prison cells without explanation; those documents included a detainee’s own hand-written notes or a photograph of the grand mosque in Mecca.

Seventy years ago, the United States bent over backwards to provide high-ranking Nazis with fair trials. These days, a fair trial for someone as unimportant as bin Laden’s driver is nothing but a dream. How far the mighty have fallen.

Your weekly selection of international law and international relations headlines from around the world:

Africa

• More than 1000 people have died in fighting in South Sudan in the past month, where a political crisis is turning into a tribal conflict.
• Zimbabwe’s ambassador to Australia has requested asylum there a few days before her term was due to end.

Americas

• Edward Snowden has declared “mission accomplished” and also issued an alternative Christmas message for the UK’s Channel 4.
• Legal or not? A federal District Court judge in New York has ruled that the NSA data collection is legal, a week after a District Court judge in DC ruled it illegal.

Asia

• Japan’s PM has angered China and South Korea with his visit to the controversial Yasukuni shrine.
• The Thai government has rejected calls to postpone the early elections scheduled for February, and has asked the army to provide security. The army however has not ruled out a military coup.
• After almost two decades the US and Japan have reached an agreement on the relocation of the Okinawa air base.
• The Chinese standing committee of the National People’s Congress has officially passed the resolution relaxing the one-child policy.

Europe

• At least 16 people were killed in a suicide blast in a railway station in Volgograd, Russia, followed the next day by a second attack on a bus killing ten more, raising safety concerns about the upcoming Winter Olympics in Sochi.
• Russia has granted amnesty to and released all members of the Pussy Riot, who have vowed to continue their political protests. The same amnesty bill also covered the Arctic 30.
• Russia has filed its first WTO complaint, against the EU’s energy policies.
• Following political protests, Ukraine is resuming negotations with EU.
• The UN has condemned UK PM Cameron’s immigration policies

Middle East

• Israel-Gaza skirmishes were followed by the closure of the border crossing for goods. Gaza’s only power plant had to stop operations a few days later, but Jerusalem denies that this was caused by the blockade.
• Egypt has declared the Muslim Brotherhood a terrorist organization
• Hundreds of civilians killed in air raids in Aleppo, Syria. Meanwhile, President Assad has outlined his government’s position for the peace talks scheduled for late January in a private message to Pope Francis, the Vatican has announced.
• A Russian report found the Yasser Arafat died of natural causes and not of polonium poisoning,
• The Palestinian Authority has denied back-channel diplomacy talks between Palestinian President Abbas and Israel’s PM Netanyahu.
• Mohammed Chatah, a prominent Syria and Hezbollah critic was killed in an explosion in Beirut.
• Israel carried out artillery attacks in Southern Lebanon after five rockets were fired into Israeli territory. Responsibility for the rockets has not yet been claimed, but there is speculation that they may have been fired by jihadis wanting to trigger a conflict between their enemies, Hezbollah and Israel.

John Sexton, the controversial President of NYU, has spoken out against the American Studies Association’s much-debated resolution in favour of boycotting Israeli universities. Here is his statement, issued jointly with NYU’s provost:

We write on behalf of New York University to express our disappointment, disagreement, and opposition to the boycott advocated by your organization of Israeli academics and academic institutions.

This boycott is at heart a disavowal of the free exchange of ideas and the free association of scholars that undergird academic freedom; as such, it is antithetical to the values and tenets of institutions of advanced learning.

I have no desire to wade into the debate over academic BDS, other than to say I’m generally wary of academic boycotts, but find it distressing that those who criticize the ASA for undermining academic freedom somehow never get around to criticizing Israel for its ongoing repression of Palestinian academics and students.

That said, NYU is the last university that should be issuing flowery defences of academic freedom. As Anna Louise Sussman points out in The Nation, President Sexton has not only refused to criticize the repression of academics in the UAE, where NYU has a campus, he has made statements that actually justify that repression:

Since April 8 the Emirati government has arrested five prominent Emiratis—activists, bloggers and an academic—for signing a petition calling for reform, and thrown them in jail, where they remain to this day. They are being held without charges, although they are in contact with their families and lawyers.

[snip]

Dr. Christopher Davidson, a reader in Middle East politics at Durham University who specializes in the politico-economic development in the Gulf, believes that by arresting people like Professor bin Ghaith, a high-profile academic, the government hopes to show that no one—no matter how connected they are—is beyond the government’s reach. Even Professor bin Ghaith’s connections to Paris-Sorbonne couldn’t save him, although Davidson chalks that up to the Sorbonne’s notable lack of response.

[snip]

According to NYU sociology Professor Andrew Ross, who has been an outspoken critic of the university’s involvement in the autocratic city-state, NYU president John Sexton recently told a group of concerned faculty members that he had reason to believe those arrested were a genuine threat to national security, something that Professor Lockman finds “particularly shocking.”

“He suggested that these people were genuinely subversive and deserving of arrest, although human rights organizations, of course, have a different take,” said Lockman. “This kind of toadying to the crown prince and his ilk shows the hollowness of NYU’s role in this place.”

Ross and his colleagues at the New York chapter of the American Association of University Professors sent a letter addressed to Dean Sexton and Vice-Chancellor Al Bloom, warning that “Silence on this serious issue will set a precedent that could also have ominous consequences for the speech protections of NYUAD faculty.”

Apparently, academic freedom is important to NYU only when it’s Israeli academics whose freedom is at stake. The academic freedom — and actual freedom — of academics in states in which NYU has business interests? Not so much.

Hat-Tip: Max Blumenthal.

NOTE: For more about President Sexton’s unwillingness to defend academic freedom in the UAE, see this essay in The Atlantic. The articles notes that, ironically, the UAE discriminates against Israeli students who want to study in the country.

At long last, Amnesty has weighed in on the debate between me and Ryan about its methodology for determining whether a state exercises universal jurisdiction over at least one international crime. As I expected, and contrary to Ryan’s claim, Amnesty does not consider it sufficient for a state to have incorporated the Rome Statute into its domestic legislation. On the contrary, it requires the existence of domestic legislation that extends universal jurisdiction over an international crime, whether specifically (“this legislation provides universal jurisdiction over international crime X”) or generically (“this legislation provides universal jurisdiciton over all international crimes defined in ratified treaties”). Here is the key statement from Amnesty’s response:

[T]he above mentioned conclusions are not based on counting “[s]tates as having enacted universal jurisdiction if the state is a party to the Rome Statute for the International Criminal Court or, more precisely, if the state has adopted a form of implementing legislation along with ratification of the treaty”. That would be a mistake. For example: Chad, Gabon, Maldivas, Nauru, and Zambia – which are states party to the Rome Statute are enlisted in the report as not providing for universal jurisdiction for any of the crimes defined in the Rome Statute. And Ireland and Liechtenstein – which have ratified the Rome Statute and enacted legislation implementing it into national law — are also both considered as not providing for universal jurisdiction with regard to crimes against humanity and genocide. In sum, Amnesty International considers that the domestic law in these countries has the effect of conferring universal jurisdiction over crimes defined in, for example, the Rome Statute. Therefore Amnesty International are not basing the claim that such countries have universal jurisdiction on the fact of their ratification of the Rome Statute alone but rather on domestic legislation that enacts universal jurisdiction for all crimes in treaties (including for example the Rome Statute) that they have ratified.

Unfortunately, Ryan still insists that Amnesty is overcounting the number of universal jurisdiction states. Here is his response, in relevant part:

In other words, the problem with the coding procedure is that it appears to involve the following two steps:

Step 1: the proposition that the Rome Statute obligates state parties to enact universal jurisdiction for ICC crimes

Step 2: the decision to code a state as having enacted universal jurisdiction if it (a) is a party to the Rome Statute and (b) its domestic law provides for jurisdiction over crimes obligated by international treaty

As I explained in my original post, Step 1 is flawed. The Rome Statute does not include universal jurisdiction, and has no obligation whatsoever for state parties to provide (extraterritorial) jurisdiction for ICC crimes.

I suspect that the reason Amnesty sets forth the two steps as a part of its coding procedure is because it is meaningful – i.e., that it makes a difference in their results. It is difficult to discern, from the Annexes of the study, which particular states might be affected, because the relevant information is not provided.

There are a number of problems with this response. To begin with, there is no “Step 1” in Amnesty’s analysis…

Citizenship practice and policy is mostly below the news radar; change is slow; and the field tends not to be reported in any sort of integrated way. So here are the key threads from 2013 and how they might spin out in 2014.

1. Citizenship is not priceless.  A growing number of states are selling citizenship. Malta is the latest. EU citizenship can be yours for 1.15mn Euros. Hungary, Spain, and Portugal now offer permanent residency in return for smaller investments in residential property, which can lead to citizenship in short order; and Cyprus tossed consolation passports to foreigners who lost more than three million Euros in the country’s banking collapse. The trend has been somewhat predictably lamented by liberal nationalists (see this forum, for example, on EUI’s excellent citizenship observatory site, with a lead contribution from Ayelet Shachar), but look for other states to cash in on a commodity that has no effective marginal cost. Will 2014 see a passport price war?

2. Even the Germans can live with dual citizenship. Americans will have a hard time understanding how big a flashpoint dual citizenship has been in German politics over the last 15 years. As a condition for remaining a part of Angela Merkel’s coalition after recent elections, Social Democrats secured the elimination of the so-called “option model” that had required German-born dual nationals to renounce one or the other by age 23. Dual Turkish-German citizens living in Germany are the big winners. If Germans can live with dual citizenship, any country can. Expect the dramatic trend towards acceptance of the status to move into its mopping up stage, with remaining holdouts (e.g., Japan) giving up their old-world jealousies.

3. American no more. 2013 saw a continued uptick in the number of individuals renouncing U.S. citizenship, with Tina Turner following in the footsteps of Facebook co-founder Eduardo Saverin, along with thousands of ordinary Americans living abroad. Taxes supply the clear motivation, as much the burdensome administrative requirements imposed by the Foreign Account Tax Compliance Act (FATCA) as the payment obligations themselves. Expat websites are aflame with outraged citizens ready to cut the cord. Expect this story to get closer to the front burner as FATCA enforcement kicks in during 2014. Do external Americans have enough political clout to repulse this IRS juggernaut?

4. Foreigners have privacy rights, too. In the NSA’s massive post-9/11 surveillance apparatus, it was open season on non-citizens outside the United States. With good jurisprudential reason: the Supreme Court (in Verdugo-Urquidez) squarely held that non-resident foreigners have no Fourth Amendment rights against the U.S. government. But that understanding is under pressure from other quarters. There’s the prospect of an international right to privacy. That won’t have much effect on America’s spymasters, at least not in the short run. The President’s NSA review board might be more influential. Its recent report called for substantial limitations on eavesdropping on foreigners (see pages 155-56). It will be interesting to see whether Obama buys in.

5. A human right to citizenship. The Dominican Republic came under withering human rights fire after its Supreme Court declared Dominican-born individuals of undocumented parents (almost all Haitian) not to enjoy Dominican citizenship. The ruling leaves 200,000 effectively stateless. Those crying foul included the major human rights groups, the UN, major powers, the Caribbean Community, and the Dominican diaspora. Expect the DR to reverse course during the coming year or face some material consequences. Other states are also coming under increasing scrutiny for rights-problematic citizenship practices. The Gulf States are getting more bad press for their notoriously ungenerous naturalization laws. Notwithstanding significant goodwill in the wake of the transition to democracy, Burma is not getting a free pass on its continuing refusal to facilitate citizenship for the Rohingyas. Human rights-based citizenship claims are clearly on the upswing, a context in which sovereignty once supplied a trumping defense.

6. Obama’s gives up on The New Citizenship. President Obama centered citizenship as a theme in a number of high profile speeches, including the trifecta of his nomination acceptance speech, his second inaugural address, and the State of the Union. In his words, citizenship “describes the way we’re made. It describes what we believe. It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations.” Lofty rhetoric, but nobody seemed to notice. Don’t expect any more stabs at this one. Much as he would like it to, this will not go down as the defining label of the Obama Presidency.

7. Ted Cruz may be a Canadian, but he is eligible for the presidency. There’s a delicious irony in the fact that the candidate most attractive to Obama-obsessed birthers himself has a much bigger question-mark relating to presidential eligibility. But even though Ted Cruz was born in Canada (and holds Canadian citizenship as a result), he is almost certainly eligible to run for president as a “natural born” U.S. citizen, holding citizenship at birth through his mother. Cruz says he has applied for termination of his Canadian citizenship. Expect the questions to linger if his candidacy looks viable; it’s just too easy a poke in the Tea Party gullet.

8. The path to legal residency matters more than the path to citizenship. At least among those affected, namely, 11-13 million undocumented aliens in the United States, as evidenced in a Pew Hispanic Center poll and reported by Julia Preston in a NYT story here. This can’t be surprising, since the main drawback of being out of status is locational insecurity. So why the persistence of the popular political tagline, “a path to citizenship”? It plays better for political proponents of regularization by lending their agenda a high-minded civic orientation. It also seems required by American notions of equality: we can’t just give undocumented aliens permanent residence insofar as it would offend baseline equality norms. Could reform advocates cave on this in 2014 if it presents the only path to a deal? Maybe.

9. Recementing ties to long-lost brothers and sisters. Spain followed through on its 2012 promise to extend citizenship to descendants of Sephardic Jews expelled from Spain half a millennium ago. Though meaningful ties persist (including in a still-living language spoken by Sephardi), one might wonder if the Spanish government was looking to capitalize on somewhat tenuous ties to its economic advantage, granting citizenship to nonresidents at the same time residents (Moroccans, for example) face significant obstacles to naturalization. More controversially, Hungary moved ahead with policies to extend citizenship — and the vote — to nationalistic co-ethnics in neighboring Slovakia and Romania supportive of the right-wing government in Budapest. Look for more countries to strategically relax requirements for citizenship by descent as they increasingly see diaspora populations as an economic and/or political resource.

And a couple to watch for 2014: what would be the UK/EU citizenship mechanics of Scottish independence; will increasingly common birth tourism packages revive efforts to scale back birthright citizenship in the US; and how will citizenships of convenience play out in the Sochi Olympics. Happy New Year!

I have posted a new essay on SSRN entitled — borrowing a phrase from a dissent written by Judge Van den Wyngaert — “A Stick to Hit the Accused with”: The Legal Recharacterization of Facts Under Regulation 55. The essay is forthcoming in a book on the ICC that Carsten Stahn is editing for OUP. Here is the abstract:

Regulation 55 was one of 126 regulations adopted by the judges of the International Criminal Court on 26 May 2004. It permits a Chamber to legally recharacterize the facts contained in the prosecution’s Document Containing the Charges, subject to certain important procedural constraints. This Chapter provides a comprehensive critique of Regulation 55, which has already had a significant impact on at least three cases: Lubanga, Bemba, and Katanga. Section I argues that the judges’ adoption of Regulation 55 was ultra vires, because the Regulation does not involve a ‘routine function’ of the Court and is inconsistent with the Rome Statute’s procedures for amending charges. Section II explains why, contrary to the practice of the Pre-Trial Chamber and Trial Chamber, Regulation 55 cannot be applied either prior to trial or after trial has ended. Finally, Section III demonstrates that the Pre-Trial Chamber and Trial Chamber have consistently applied Regulation 55 in ways that violate both prosecutorial independence and the accused’s right to a fair trial.

It’s difficult to overstate how problematic Regulation 55 is. Katanga is perhaps the best example: the defence built its entire strategy around rebutting the idea that Katanga was responsible for the charged crimes as an indirect co-perpetrator, in keeping with the OTP’s allegations and the Pre-Trial Chamber’s assurance that questions of complicity were thereby moot. Katanga testified on his own behalf at trial, admitting that he had known about and perhaps indirectly contributed to his former subordinates’ crimes, but denying he intended to commit the charged crimes or had control over them (the material elements of indirect co-perpetration). The Trial Chamber then notified the defence six months after trial was over that it intended to also consider Katanga’s responsibility on the basis of common-purpose liability — relying to a significant extent on Katanga’s own testimony. And the Appeals Chamber thought that was just fine.

I could go on — but if you’re interested, you should just read the essay. You can download it here. Comments most welcome, as always.

Your weekly selection of international law and international relations headlines from around the world:

Middle East

• British and U.S. spies targeted a senior EU official, German government buildings, and the office of an Israeli prime minister, according to the latest leaked documents from Edward Snowden published on Friday. Israeli officials said they were not surprised by allegations of spying and played down the importance of any information its allies may have gleaned.
• In a rare public apology, the military leader of al-Qaeda’s branch in Yemen has said that one of his fighters disobeyed orders and attacked a hospital attached to the defense ministry during a December assault that killed 52 people.
• Israeli police have blamed terrorists for a bomb that exploded on a bus in the Tel Aviv suburb of Bat Yam only moments after passengers left the vehicle.

Asia

• China has agreed to make a revised offer to join a global agreement aimed at creating a level playing field for foreign companies competing for government contracts.
• China’s Defense Ministry called Japan’s plans to raise its military spending for the first time in 10 years deeply worrying for Asia and the world, saying also that it strongly opposes its neighbor’s policy.
• Residents of Pakistan’s North Waziristan region have accused government troops of killing dozens of civilians during a military operation against Taliban fighters and the Taliban has threatened a full counter-offensive.

Africa

• Two UN peacekeepers from India have been killed and one wounded in an attack on a UN base in South Sudan. South Sudan’s government reported rebels had seized the capital of a key oil-producing region and fears grew of all-out ethnic civil war.
• A Nigerian court sentenced a member of Islamist group Boko Haram to life imprisonment for his involvement in bombings including a 2011 Christmas Day attack on a Catholic church near the capital that killed 37 people. Fearing more attacks over Christmas this year, Nigerian police have ordered extra patrols, surveillance and covert operations to better secure potential targets during the festive period.
• Uganda’s parliament has passed an anti-gay law that punishes “aggravated homosexuality” with life imprisonment.
• Tension between rebels in the Central African Republic and the French is growing.

Europe

• EU leaders agreed to work more closely on defense and make falling military budgets stretch further, but British Prime Minister David Cameron said the UK would resist any attempt to form a European army.
• Serbia’s launch of membership talks with the European Union will not spell the end of EU-mediated talks with its former province Kosovo on mending their relations.
• France expanded the government’s powers to monitor phone and Internet connection data without judicial review as a last-minute opposition attempt to block the move failed to gather support.
• Fears that Eastern European workers will flood the EU labour market are unfounded, experts say, as nine European countries are set to lift all remaining curbs on migrants from Bulgaria and Romania on January 1.

Americas

• According to the Washington Post, the United States’ CIA was involved in assisting the Colombian government in killing FARC rebel leaders.
• The United States, Britain and Libya have pledged their full support for efforts by their investigators to bring those behind the 1988 Lockerbie airliner bombing to justice.
• The US and allies will have ways to reimpose sanctions on Iran if it is caught making bombs after striking a deal to freeze its nuclear program.

Calls for Papers

• The Stanford Journal of International Law seeks contributions by academics, practitioners, and policymakers for its Symposium titled Governing Intelligence: Transnational Threats & the National Security State, which will take place on May 2, 2014 at Stanford Law School. Governing Intelligence will move beyond the surveillance debate to start an interdisciplinary dialogue about the power and limits of intelligence agencies from a comparative and international perspective. Contributions must address either of the following topics: (a) National Intelligence & Transnational Threats; or, (b) Individual Rights & Intelligence Gathering.  The abstract submission deadline is February 1, 2014. Decisions will be released on a rolling basis. The full announcement, along with sub-topics, contact information, and submissions guidelines, can be found here.
• The Journal of International Criminal Justice (JICJ) invites submissions for a Special Issue provisionally titled The Interaction between Refugee/Migration Law and International Criminal/Humanitarian Law. The editors welcome submission of abstracts not exceeding 400 Words on any of the themes described above, or related areas of interest, on or before 28 February 2014, by email, at jicj [at] geneva-academy [dot] ch. The abstract should contain the author’s name, home institution, and the title of the proposed paper.  Please also send a current CV. For more information, please click here (.doc).
• The Utrecht Journal of International and European Law is issuing a Call for Papers to be published in its forthcoming general edition on International and European Law. The Board of Editors of Utrecht Journal invites submissions addressing any aspect of International and European law; topics may include, but are not limited to, International and European Human Rights Law, International and European Criminal Law, Family Law, Health and Medical Law, Childrens’ Rights and the Law, Commercial Law, Media Law, Law of Democracy, Intellectual Property Law, Taxation, Comparative Law, Competition Law, Employment Law, Law of the Sea, Environmental Law, Indigenous Peoples, Land and Resources Law, Alternative Dispute Resolution or any other relevant topic. Deadline for Submissions: 30 March 2014. Author guidelines and more information can be found here.
• The Grotius Center of Leiden University in The Hague has announced a call for papers for its upcoming seminar: Peacebuilding and Environmental Damage in Contemporary Jus Post Bellum: Clarifying Norms, Principles and Practices taking place June 11 – 12, 2014. Traditional approaches to environmental protection face particular challenges during and after conflict. Calls for the acceptance of specific ecological obligations and procedures in post-conflict environments encounter resistance and constraint in military operations. Some harms and obligations lend themselves to systemic or abstract regulation. Others require context- and case-specific consideration. Jus post bellum provides a potential framework to take into account these specificities. It allows exploration of otherwise disparate areas of law and practice under a unified framework that focuses on post-conflict societies and the creation of sustainable peace.
  The full call for papers can be read here. Submissions should include an abstract of no more than 300 words and be accompanied by a CV. Please indicate for which seminar the abstract is intended. Submissions must be written in English and sent to j [dot] m [dot] iverson [at] cdh [dot] leidenuniv [dot] nl and j [dot] s [dot] easterday [at] cdh [dot] leidenuniv [dot] nl no later than 27 January 2014.
• The second event being hosted by the Grotius Center, Property and Investment in Contemporary Jus Post Bellum: Clarifying Norms, Principles and Practices is also seeking papers. This event will focus specifically on three main areas: (i) Housing, land and property of displaced persons, (ii) protection of culturally significant property, and (iii) investment. It will investigate how property and investment rights can be reconciled with other rights in the context of jus post bellum; and what approaches law are most likely to produce a just and sustainable peace.The full call for papers can be read here. Just as with the first seminar’s call for papers, submissions should include an abstract of no more than 300 words and be accompanied by a CV. Please indicate for which seminar the abstract is intended. Submissions must be written in English and sent to j [dot] m [dot] iverson [at] cdh [dot] leidenuniv [dot] nl and j [dot] s [dot] easterday [at] cdh [dot] leidenuniv [dot] nl no later than 27 January 2014. Selected participants for both seminars will be informed 22 February 2014. Final papers should be submitted by 16 May 2014.

Events

• Max Planck Masterclass in International Law will take place from 29 April – 2 May 2014 in which Professor Martti Koskenniemi will discuss: Critical Studies of International Law. The scholarship of international law is often caught in the dichotomy between apologetic etatism and utopian humanism. No one has described this contraposition and its implications more clearly than Martti Koskenniemi, most prominently in “From Apology to Utopia” (1989). During the last decades, he has been preeminent in criticizing what he calls the “Kitsch” of international legal scholarship. He emphatically describes the perplexities and disputability of concepts such as human rights or the international community. Beside his contributions in the field of deconstructivist thinking, Martti Koskenniemi has also published several pieces with a historical take. To name again but one lighthouse publication, “The gentle civilizer” (2004) tells an insightful and critical story about the emergence of international law as part of liberal modernity. The number of participants is limited in order keep the character of a seminar. Please send your applications, including a letter of motivation and a CV, till 31 January 2014 to masterclass2014 [at] mpil [dot] de. During the Masterclass, one afternoon will be dedicated to presentations from participants. Whoever would be interested in presenting his or her work in that session, is invited to indicate so and to send a short abstract along with the application. On Thursday, 1 May 2014, Professor Koskenniemi is going to give a public lecture at the DAI Heidelberg (http://www.dai-heidelberg.de/), entitled “Sovereignty, Property and International Law. A Historical View”. Everybody is cordially invited to join for that lecture.
• The Hague University of Applied Sciences (HUAS) has announced an upcoming multidisicplinary conference entitled: Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa, from 23-24 May 2014 at the HUAS in The Hague. Professor Kamari M. Clarke (University of Pennsylvania) Professor Charles C. Jalloh (University of Pittsburg) and Professor Makau W. Mutua (SUNY Buffalo Law School) will be speaking during the conference. For more information and registration, please visit the conference website.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us. Season’s Greetings to all our readers!

British artist Banksy knocks it out of the park again, with a rather unusual rendering of a Nativity scene:

As ArtInfo notes, this is not Banksy’s first comment on the Israel/Palestine conflict. He painted nine amazing murals directly on the wall in 2005, including a boy drawing a chalk ladder over the wall and a girl floating over the wall with a bouquet of balloons.

Is there a more brilliant and politically insightful artist working today than Banksy? I’m still blown away by the meat truck filled with wailing stuffed animals that he had driving around Manhattan. It’s one of the most powerful pro-vegetarian statements I’ve ever seen. Watch the video here.

That’s the punchline of a podcast Radiolab just released this week, provocatively titled “Sex, Ducks and The Founding Feud”.  Along with John Bellinger, Joseph Ellis and Nick Rosenkranz, I was interviewed for the story by Jad Abumrad and Kelsey Padgett.  It was a fun experience overall trying to explain to a general audience the importance of the US treaty power and how it plays out in the Bond case, and Missouri v Holland before that. On the whole, I enjoyed hearing some fabulous sound editing (which is not surprising given Jad’s previous work won him a McArthur Genius award). Entertaining as it is though, I also found the piece quite thoughtful in framing the importance of the treaty power and offering both sides of the arguments, even if one might quibble over a few details here and there (eg the constitutionality of the implementing legislation versus that of the treaty).

Interested readers can take a listen here.

This week Kevin briefly turned the blog into The Onion Juris with his satirical ICTY press release, after the Court, in Kevin’s opinion, nailed the final nail in the coffin of its legitimacy. In a guest post, Eugene Kontorovich framed the question as a design choice in terms of who should bear the risk when a judge becomes unavailable before a trial has ended.

Not satire was Kevin’s post about glitter territorism. Kevin also posted a surreply to Ryan Goodman on whether Amnesty International inflated universal jurisdiction numbers.

We ran a symposium on Kristina Daugirdas’ Congress Underestimated from the latest AJIL issue, with comments by Paul Stephan, Daniel Abebe, and David Gartner. Kristina’s reply is here.

Jessica rounded up the news, and I listed events and announcements.

Have a nice weekend!

Oklahoma City police are obviously upset that the UK has pulled ahead of the US in the competition to have the most absurd definition of terrorism. Hence this:

On Friday, Oklahoma City police charged a pair of environmental activists with staging a “terrorism hoax” after they unfurled a pair of banners covered in glitter—a substance local cops considered evidence of a faux biochemical assault.

Stefan Warner and Moriah Stephenson, members of the environmental group Great Plains Tar Sands Resistance, were part of a group of about a dozen activists demonstrating at Devon Tower, the headquarters of fossil fuel giant Devon Energy. They activists were protesting the company’s use of fracking, its role in mining of Canada’s tar sands, and its ties to TransCanada, the energy company planning to construct the Keystone XL pipeline. As other activists blocked the building’s revolving door, Warner and Stephenson hung two banners—one a cranberry-colored sheet emblazoned with The Hunger Games “mockingjay” symbol and the words “The odds are never in our favor” in gold letters—from the second floor of the Devon Tower’s atrium.

Police who responded to the scene arrested Warner and Stephenson along with two other protesters. But while their fellow activists were arrested for trespassing, Warner and Stephenson were hit with additional charges of staging a fake bioterrorism attack. It’s an unusually harsh charge to levy against nuisance protestors. In Oklahoma, a conviction for a “terrorist hoax” carries a prison sentence of up to 10 years.

Oklahoma City police spokesman Captain Dexter Nelson tells Mother Jones that Devon Tower security officers worried that the “unknown substance” falling from the two banners might be toxic because of “the covert way [the protesters] presented themselves…A lot were dressed as somewhat transient-looking individuals. Some were wearing all black,” he says. “Inside the banners was a lot of black powder substance, later determined to be glitter.” In their report, Nelson says, police who responded to the scene described it as a “biochemical assault.” “Even the FBI responded,” he adds. A spokesman for Devon Energy declined to comment.

Nothing quite says terrorism like transient-looking individuals wearing black. And, of course, we have all been deeply unsettled by new black anthrax that’s all the rage with al-Qaeda youth today.

Ain’t glitter terrorism fabulous?

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

What should an international court do when the judges hearing a case are not around to decide it, as has happened on the ICTY in the Seselj case that Kevin has written about?

The death or serious illness of an international judge during the pendency of a case is an entirely foreseeable matter. International criminal trials are quite long (an average of three years from the start of trial to judgement). At the ICTY, the length can be as long as nine years. The average age of judges on the Court is 62 at appointment. See the Realities of International Criminal Justice for these and other figures.

Given that proceedings are long and judges old, an empty seat on the bench should, from an institutional perspective, not be a surprise. The best way to deal with this, if one is concerned about the issue, is the designation of alternate judges. This happened at Nuremberg, and is provide for in Art 74(1) of the Rome Statute, and in the Special Courts for Sierra Leone and Lebanon, where they “shall be present at each stage of the trial or appeal to which he or she has been designated.”

So the lack of a provision for such supernumeraries is a design choice or error. Certainly alternates burden an already expensive system. On the other hand, alternates are a known form of “insurance” for the continuance and integrity of international criminal trials.

So the question is who should bear the risk if the Tribunal does not “purchase” such insurance and the feared contingency occurs – the defendant or the Court (and perhaps justice). The general principle of strict construction in favor of the defendant in criminal matters would suggest imposing the costs on the Court, and yes, on international justice, which is more risk-averse (diversified across multiple cases).

Most fundamentally, because it is the officers of the Court that can best avoid such problems (by expediting proceedings) the consequences should fall on them. Of course, one does not wish to encourage hurried proceedings. So if the cost of such errors is seen as unacceptably high, alternates should be provided for in the future, or the rules requiring judicial presence relaxed.

[Kristina Daugirdas is Assistant Professor of Law at Michigan Law]

First off, I would like to thank Paul, Daniel, and David for their very thoughtful comments.  I’m glad to have the opportunity to respond to some of the key points that they made.

Paul provocatively suggested that perhaps we should care about results rather than democratic accountability per se.  If a particular set of institutional arrangements actually improves human lives, maybe it’s of secondary importance whether those institutional arrangements are anti-democratic.  Put in the terms of my article, the question wouldn’t be whether the World Bank suffers from a democratic deficit, but whether Congress’s participation in setting World Bank policy advances the Bank’s efforts to rid the world of poverty.

That’s a challenging question.  Many government and Bank officials decry Congress’s meddling, arguing that it politicizes the Bank, that coping with congressionally-created financial crises detracts resources and staff time away from the Bank’s core mission, and that Congress’s interventions amplify the Bank’s tendency to cater to members who contribute funds at the expense of members who borrow them.  Those are serious concerns.  At the same time, the U.S. Congress was a forceful advocate of some innovations in the Bank’s operations that are widely praised, including the establishment of the World Bank Inspection Panel.  The voting rules at the World Bank ensure that only those proposals that are able to gain the support of a range of member states are translated into World Bank policy.  The obviously parochial legislated instructions that could impede the Bank’s efforts to support development are typically dead on arrival.

Both Daniel and David ask whether the dynamics the article describes in the World Bank context are likely to carry over to other international organizations, especially those that are more central to foreign affairs.  Isn’t the conventional wisdom about the President’s dominance in foreign affairs, Daniel asks, really a story about high-salience foreign-affairs issues?  Well, kind of.  It’s certainly right that “foreign affairs” is often equated, explicitly or implicitly, with war and national security.  But one of the points I hoped to emphasize is that this is an increasingly outdated and misleading perception of what “foreign affairs” encompasses.  Today, nearly every federal regulatory regime has an international counterpart of some kind.  To name just a few, there are international agreements that address wetlands protection, financial institutions, and food safety standards.  If we want to understand the dynamics between the political branches in foreign affairs, we would be seriously remiss to ignore the vast realm of lower-salience issues.

The narrower question nonetheless stands: Continue Reading…

[David Gartner is Professor of Law at Sandra Day O’Connor College of Law at Arizona State University]

In Congress Underestimated, Kristina Daugirdas offers a valuable new perspective on the role of the Congress in shaping the foreign relations of the United States with respect to international institutions.  The article presents a fascinating case study of the assertive role of the Congress in influencing executive branch positions towards the World Bank and offers an interesting counter-example to the idea that the President reigns supreme in contemporary foreign relations.  In these comments, I want to address two important questions raised by the article: First, is it right that Congress has been underestimated with respect to its influence over the World Bank?  Second, is the World Bank case exceptional or does it reflect a more generalizable conclusion about the role of Congress in shaping US policy towards international institutions?

Daugirdas argues that leading accounts of Congress as a feeble participant in foreign affairs have underestimated its influence over US participation in the governance of the World Bank.  She highlights the ways in which Congress has used its power of the purse to impose conditions on funding and give directives regarding the positions taken by the US Executive Director of the World Bank.  Across Presidential administrations and in times of both unified and divided government, the executive branch has largely followed these congressional instructions with respect to the World Bank.  Although the article recognizes some limits to this influence, it captures an important source of congressional leverage even as it potentially overstates its ultimate impact on the day-to-day operations of the Bank.

Continue Reading…

[Daniel Abebe is Professor of Law and Walter Mander Teaching Scholar at the University of Chicago]

In Congress Underestimated: the Case of the World Bank, Professor Daugirdas studies the World Bank to gain better traction on two important debates in the foreign affairs law literature, namely the extent to which the President, vis-à-vis Congress, is dominant in foreign affairs and the claim that international organizations like the World Bank weaken democracy by enfeebling domestic legislatures.  As I understand it, her argument is that contrary to the conventional wisdom of presidential dominance, Congress has used the threat of reduced World Bank funding and specific voting instructions to force the President to at least embrace, if not implement, Congress’s preferences.  Moreover, Congress’s influence on U.S. policy at the World Bank challenges the view that international organizations undermine democracy by enfeebling Congress’s capacity to influence policy outcomes.  If correct, her overall argument challenges existing conceptions of the relationship between the President and Congress in foreign affairs, and complicates our understanding of the interaction between domestic legislatures and international organizations.

Congress Underestimated: the Case of the World Bank is filled with rich institutional detail about the World Bank’s internal operations and the negotiations between Congress and the President over World Bank policy.  Although much of the detail warrants discussion, due to the space constraints of a blog post I will focus my comments on the two related arguments and the evidence offered in support.  Let me start with the presidential dominance claim and move from there.
Continue Reading…

[Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor at the University of Virginia School of Law.]

Many scholars believe that a shift of authority to international organizations benefits the Executive Branch more than Congress. The Executive interacts directly with these organizations and bears undiluted accountability for the consequences of their actions. Congress deals with them sporadically and has weak institutional interests. Members are elected by local, rather than national, constituencies and therefore have an incentive to focus on local rather than national effects of foreign affairs, the actions of international organizations included. Therefore, some have suggested (myself included), Executive Branch actors might prefer international delegations as a means of hobbling legislative oversight. To oversimplify greatly, people like me have argued that internationalists who wish to deepen and broaden international cooperation through institutions might find themselves playing into the hands of the Imperial Presidency.

Kristina Daugirdas’s excellent article pushes back against the widely held belief that international institutions augment Executive power at the expense of Congress. Rather than theorize, she does research. Her careful study of the history and pattern of legislative oversight of the World Bank demonstrates the Congress has the capacity effectively (and significantly) to influence U.S. policy toward the Bank, and even to alter the Bank’s behavior. Creation of the Bank did not lead to a surrender of the legislature’s prerogatives, but rather gave members (especially in the House) a new pressure point for extracting concessions from the Executive.

The key factor that enables Congress to ride herd on the Bank, Daugirdas observes, is the Bank’s need for periodic new funding. This was not always true, as the Bank was designed to generate a positive return on its founding capital. The creation of a more aggressively redistributionist institution in the form of the International Development Association in 1960 changed this dynamic, because the IDA depends on frequent infusions of new capital. Because Congress must approve any U.S. contributions, it can hold the funding hostage to its policy preferences. Moreover, it has demonstrated an ability to monitor the Bank and thus to respond to slippage between its instructions and the Bank’s performance. In early years, when Congress instructed the U.S. Executive Director not to vote in favor of certain loans, the U.S. representative behaved as required but did nothing to alter the votes of other Directors. After Congress responded through more aggressive pressure on the funding lever, the Bank shifted course.

Although the need for regular funding is the salient variable, also important is the role of departmentalism within the Executive Branch. The White House, with its own agenda as well as acting as the focal point for all the Executive’s components to express their interests, may have a particular policy, but the Treasury has the responsibility for managing the United States’s relationship with the Bank and deals regularly with Congress. When Congress has been unhappy, Daugirdas shows, it focuses its displeasure on Treasury, which in turn works hard to steer the Bank’s behavior in the direction Congress wants, whatever the White House might prefer.

This article does several wonderful things. Continue Reading…

Today and tomorrow, we are joining forces again with the American Journal of International Law to bring you a discussion of Kristina Daugirdas‘ article, “Congress Underestimated”:

Using the World Bank as a case study, this article casts doubt on the empirical foundation for the claim that international organizations undermine democracy by undermining legislatures, at least in the United States. The article also argues that the conventional wisdom about the executive branch’s dominance in foreign affairs may be overstated—especially outside the context of wars and crises. Over the past forty years, Congress has undertaken persistent and often successful efforts to shape day-to-day U.S. participation in the World Bank, a key international organization.

Congress has relied on a combination of tools to accomplish this.  It has adopted legislation instructing the U.S. representative at the World Bank to oppose specified categories of loans and pursue specified policies.  It has credibly threatened to cut appropriations.  And it has stepped up its monitoring of both the World Bank and the executive branch’s interactions with it.  The President has objected that Congress’s legislated instructions contravene constitutional limits on its authority.  But these protestations have not held Congress back.  The Treasury Department—the executive branch agency that implements U.S. policy with respect to the Bank—has diligently followed Congress’s instructions to ensure that Congress continues to provide necessary appropriations.

By focusing on Congress’s ongoing role in influencing the World Bank’s operations, this article addresses a perplexing oversight in the literature concerning the democratic accountability of international organizations in the United States. To the extent that this literature considers Congress at all, it has focused narrowly on two discrete points: Congress’s role in the initial decision to authorize U.S. participation in international organizations and its role in implementing new international legal obligations that these organizations generate. But limiting the inquiry to these discrete points misses much of what is important. First, international organizations are durable institutions with long lives; the World Bank, for example, has been around since 1945. Concerns about democratic accountability do not wane over time. To the contrary, they are likely to grow more acute. Second, many international organizations, including the World Bank, conduct their mandated activities without generating new international norms that bind their member states, with the consequence that their activities do not raise the question of whether implementing legislation is necessary.

Commentators are Paul Stephan (Virginia), Daniel Abebe (Chicago) and David Gartner (Arizona State). As always we welcome readers’ comments!

Your weekly selection of international law and international relations headlines from around the world:

Middle East

• The UN sent its first delivery of humanitarian aid by air to Syria from Iraq and said it plans to deliver more food and winter supplies to the mainly Kurdish northeast in the next 12 days.
• Yemen’s parliament called for a stop to drone attacks in a symbolic vote that reflected growing public anxiety about Washington’s use of the unmanned aircraft to combat al Qaeda in the impoverished country.
• An Israeli soldier has been killed in cross-border gunfire near the Lebanese border, the Israeli military has said.
• Syrian government air raids using barrel bombs on rebel-controlled areas of Syria’s second city of Aleppo killed at least 76 people, including 28 children, activists said.

Asia

• Japan and Southeast Asian nations have called for freedom of the high seas and skies, amid heightened tensions over China’s new air defense zone in the East China Sea.
• China’s first moon rover has touched the lunar surface and left deep traces on its loose soil, state media reported, hours after the country successfully carried out the first soft landing of a space probe on the moon in nearly four decades.
• Assailants stabbed a Japanese diplomat in Yemen as the victim drove his car in the capital Sanaa, scene of a recent spate of attacks on foreigners, the embassy said.

Africa

• France will ask for more help from its European partners to bolster its peacekeeping mission in the Central African Republic.
• Central African Republic’s interim leader is weighing a possible amnesty for militias involved in Christian-Muslim violence that has killed hundreds of people, most of them civilians, in exchange for their disarmament.
• Heavy gunfire has rocked South Sudan capital, Juba, as rival factions of the country’s military clashed.
• A car bomb has killed two Senegalese UN peacekeepers and destroyed the only operating bank in the northern Malian town of Kidal, one day before a second round of parliamentary elections.

Europe

• The European Union said it will suspend efforts to work with Ukraine on a trade and cooperation agreement, as 200,000 pro-EU protesters gathered for a rally, marking the start of a fourth consecutive week of anti-government unrest.
• The majority of Catalans want the right to decide on independence in a referendum and believe Spanish Prime Minister Mariano Rajoy should authorize such a vote, a poll showed on Sunday.
• Iranian intelligence authorities have arrested a man on charges of spying for Britain’s MI6, the semi-official Fars news agency reported.

Americas

• Authorities said Friday they foiled a suicide bombing plot to blow up the Mid-Continent Airport in Wichita, Kansas, arresting a man who proclaimed himself Muslim and had talked of committing “violent jihad on behalf of al Qaeda.”
• Venezuelan authorities took passengers off an Air France flight that was due to depart to Paris on Saturday after French officials warned of a possible bomb threat, Venezuela’s interior minister said.
• In his first visit to Vietnam as America’s top diplomat, US Secretary of State John Kerry urged the country’s leaders to strengthen their commitment to human rights and allow more freedom of expression, including on the Internet.

So, it’s official: the ICTY Trial Chamber has decided to let Judge Niang replace Judge Harhoff on the Seselj case:

The Trial Chamber on Friday issued a decision on the continuation of the proceedings in the case of Vojislav Šešelj, following the disqualification of Judge Frederik Harhoff and appointment of Judge Mandiaye Niang to the Bench.

The Chamber unanimously ordered that the proceedings would resume from the point after the closing arguments, and move into the deliberations phase as soon as Judge Niang has familiarized himself with the file. The Trial Chamber will issue a decision once this has been completed.

The Chamber agreed that a new judge is able to assess witness testimony given in his absence through other means, including video recordings. Consequently, the Chamber concluded that Judge Niang will be thus able to evaluate the credibility of witnesses heard during the proceedings in the Šešelj case, and familiarise himself with the record of the proceedings to a satisfactory degree.

[snip]

The Prosecution argued that that the trial should continue at the deliberation stage, after Judge Niang familiarises himself with the existing case record. The Prosecution claimed that such a solution would not be unprecedented in the Tribunal’s practice, pointing to the trial of Slobodan Milosevic where Judge Bonomy replaced Judge May.

The ICTY has yet to release an English translation of the decision, but Dov Jacobs notes on twitter that the Trial Chamber claims allowing Judge Niang to participate in deliberations, despite not hearing a single witness or item of evidence, is “in the interest of justice.” By “in the interests of justice,” of course, the Trial Chamber means “in the interests of conviction,” because there is nothing remotely just about permitting a judge to decide the fate of an individual whose trial he did not attend for even a single day.

Alas, that is only one of many absurdities in the case. As I have pointed out before, the Tribunal is appointing Judge Niang pursuant to a rule of procedure, Rule 15bis, that applies only to “part heard” cases. But applying the rule as written would prevent Seselj from being convicted, so the Tribunal is simply ignoring what it says. And, of course, the OTP is playing its part by invoking the dreaded Milosevic case as precedent, conveniently ignoring the fact that Judge Bonomy was appointed to replace Judge May before the defence began its case in chief, a situation that — unlike Seselj’s — is actually covered by Rule 15bis.

But don’t worry, Judge Niang is supposedly going to spend the next six months “assess[ing] witness testimony given in his absence through other means, including video recordings,” and will thus be able to “familiarise himself with the record of the proceedings to a satisfactory degree.” Of course he will: it’s not like the trial lasted 175 days, involved 81 witnesses, included 1,380 exhibits, and generated more than 18,000 pages of trial transcript (a mere 100 pages of transcript per day, assuming Judge Niang never takes a day off and fits his reading in around the hundreds of hours of witness testimony he will need to watch).

I’ve always defended the legitimacy of the ICTY — even after experiencing first-hand in the Karadzic case how unfair the Tribunal can be at times. But no longer. Unless the Appeals Chamber does the right thing, this latest decision will forever tarnish both the ICTY’s legacy and international criminal justice more generally.

• Hebrew University of Jerusalem and the Freie Universität Berlin have announced a new joint 3-year interdisciplinary Doctoral Program entitled “Human Rights under Pressure – Ethics, Law and Politics” (HR-UP), funded by the German Research Foundation (DFG) and the Einstein Foundation Berlin. HR-UP offers young researchers a unique opportunity to conduct cutting-edge research on the most pressing contemporary challenges for human rights, including issues arising from crises and emergencies, globalization and diversity. Doctoral researchers admitted to the program will receive competitive fellowships and mobility funds for research terms at the partner university. They will be jointly supervised by senior researchers from Germany and Israel, and participate in both jointly and locally held courses, including a two-week introductory intensive course in Jerusalem, joint interdisciplinary colloquia, research ‘master-classes’, and three annual summer schools in Berlin. The program also includes two post-doctoral positions (one in each university). The deadline for applications is January 27th, 2014. For further information, and to apply, please visit  www.hr-up.net.
• The Third Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law (PEPA/SIEL) will take place in São Paulo (Brazil),  on April 24-25, 2014, in cooperation with DIREITO GV – São Paulo Law School. This conference offers postgraduate students (students enrolled in Masters or PhD programmes) and early professionals/academics (generally within five years of graduating) studying or working in the field of International Economic Law an opportunity to present and discuss their research. It also provides a critical platform where participants can test their ideas about broader issues relating to IEL. One or more senior practitioners or academics will comment on each paper after its presentation, followed by a general discussion. Interested students should e-mail a CV and a research abstract (no more than 400 words) no later than January 12, 2014. More information is here.
• The Institute of Advanced Legal Studies at the University of London is organising a workshop on National Security and Public Health as exceptions to Human Rights on May 29, 2014 and is now calling for papers. All the information and the call for papers can be found here:here.
• If you’re looking for a stocking stuffer for the international law geek in your life, the International Game of Justice developed by Valentin Jeutner, a PhD student at Gonville and Caius College, at the University of Cambridge, may be just what you are looking for. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

In my previous post, I questioned Ryan’s claim that Amnesty International’s totals concerning the number of states exercising universal jurisdiction over at least one international crime “may be significantly inflated.” I pointed out that, contrary to what he was asserting, the report did not count a state simply because it it had incorporated the Rome Statute into its domestic legislation; on the contrary, in every case it identified the specific legislative provision(s) that extended universal jurisdiction over one or more international crimes.

Ryan has replied to my post. Here is the core of his response:

Kevin agrees with one aspect of my argument. He writes, “As Ryan rightly points out, the Rome Statute is neither based on universal jurisdiction nor requires states that implement it to adopt universal jurisdiction.”

Kevin, however, disagrees with another aspect. But this disagreement is based on a misunderstanding of my argument. I accept responsibility as an author for any lack of clarity. Kevin writes, “Amnesty does not seem to be suggesting that implementing the Rome Statute simpliciter is enough to consider a state to have universal jurisdiction over the international crimes therein.”

Kevin thinks I disagree with that description. But I agree with it.

Ryan does not explain how I misunderstood his argument, and I fail to see how I did. If he does not believe Amnesty is overcounting states in its study by including those that merely incorporate the Rome Statute, what is the basis for his claim that Amnesty’s numbers are “significantly inflated”? After all, the title of his original post is “Counting Universal Jurisdiction States: What’s Wrong with Amnesty International’s Numbers.” And why did he write “Here’s what troubles me: Amnesty International appears to count states as having enacted universal jurisdiction… if the state has adopted a form of implementing legislation along with ratification of the treaty”?

Confused about what I got wrong, I asked Ryan on twitter whether he was withdrawing his claim that Amnesty’s universal-jurisdiction numbers are “significantly inflated.” He said he was not. So he still believes that at least some non-negligible number of states that Amnesty counts in its study do not, in fact, exercise universal jurisdiction over at least one international crime.

That is an empirical claim, and one that Ryan has not supported. He has yet to cite even one state that he believes Amnesty wrongly included in its study — much less enough states to justify his claim that Amnesty’s numbers are “significantly inflated.”

This fortnight on Opinio Juris, Deborah reminisced about her handshake with Nelson Mandela during her time as a junior White House staffer and Roger posted about the day Mandela was free.

Mandela’s example was invoked at the WTO Ministerial Conference in Bali, where trade ministers reached their first trade agreement in years. Julian argued that the WTO however does not need the Bali Package for its dispute settlement system to remain relevant and Duncan discussed whether the Bali Package requires US Congressional approval. In other WTO news, Roger discussed how the WTO Dispute Panel in its recent EU-Seal Products decision recognized the self-judging nature of the public morals exception in article XX:a GATT.

Trade issues have inspired recent political protests in Ukraine, which Chris used to illustrate how geopolitics has become normative, and how all normative geopolitics is local. Chris also asked where international law should go now that life is imitating the art of political science fiction.

Kevin noted the OTP’s remarkable slow-walking of the Afghanistan examination. A series of articles on Judge Harhoff’s resignation also confirmed to Kevin-once he stopped fuming about the persistent misquoting of the Perisic judgment-that the Judge needed to be removed from the Seselj case. Kevin also assessed Ryan Goodman’s argument that Amnesty International has overstated the number of states that have implemented universal jurisdiction in its report on the issue.

Julian covered various topics that we have known him for recently. He noticed how Russia’s non-compliance with the ITLOS Artic Sunrise order went unnoticed in most media, and concluded that states do not take a reputational hit in case of non-compliance. Julian followed up on earlier posts regarding China’s ADIZ, and argued that the US position is not backed up by a coherent international legal framework. You can also see Julian in action in this video from a Cato Institute event on Argentina’s Debt Litigation and Sovereignty Immunity. On a lighter note, Julian also pondered how the US and Canada could legally merge, and pointed out the happy news that Santa has a visa waiver to enter the US.

Following the recent diplomatic success of the P5+1 and Iran, Sondre Torp Helmersen revisited the impact of the Iran hostage crisis for diplomatic law. Kristen focused on the effect of the deal for UN, rather than unilateral US and EU, sanctions on Iran.

In other organizational news, Kristen updated us on recent developments in Bluefin Tuna management.

Finally, Jessica and I listed various events and announcements that came to our attention (1, 2), and Jessica wrapped up the news headlines (1, 2).

Have a nice weekend!

Not long ago, Amnesty International released an updated version of its massive study “Universal Jursidiction: A Preliminary Survey of Legislation Around the World.” The report concluded, inter alia, that 86% of the world’s states exercise universal jurisdiction over at least one kind of international crime. (Most commonly, war crimes.)

In a post today at Just Security, my friend and regular sparring partner Ryan Goodman suggests that Amnesty’s number “may be significantly inflated” (emphasis added):

Here’s what troubles me: Amnesty International appears to count states as having enacted universal jurisdiction if the state is a party to the Rome Statute for the International Criminal Court or, more precisely, if the state has adopted a form of implementing legislation along with ratification of the treaty. Amnesty makes that decision on the stated assumption that the Rome Statute implicitly requires member states to adopt universal jurisdiction corresponding to its core crimes.

As Ryan rightly points out, the Rome Statute is neither based on universal jurisdiction nor requires states that implement it to adopt universal jurisdiction. That said, I do not believe Amnesty is doing what Ryan says it is — considering a state to have universal jurisdiction over a crime simply because it has incorporate the Rome Statute into its domestic legislation. In defense of that claim, Ryan cites a paragraph from the study’s methodology section (p. 9):

Crimes defined in national law, with reference to treaties.

In some instances, the state has defined a crime under international law, such as genocide, as a crime in national law and provided that its courts have jurisdiction over crimes in treaties it has ratified (some provisions do not specify that the treaty has to have been ratified). In those instances, the state would have jurisdiction not only over crimes in aut dedere aut judicare treaties, but treaties like the Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and the Rome Statute of the International Criminal Court (Rome Statute) that do not contain an express obligation to exercise universal jurisdiction, although they may contain an implied obligation to do so. Annex I indicates that the state has jurisdiction over the relevant crime (YES).

This paragraph is not a picture of clarity, but Amnesty does not seem to be suggesting that implementing the Rome Statute simpliciter is enough to consider a state to have universal jurisdiction over the international crimes therein. What the paragraph says, I think, is that some states adopt universal jurisdiction legislation that does not specifically mention international crimes (e.g., State X shall have universal jurisdiction over genocide), but instead applies universal jurisdiction to any crime defined in a treaty ratified by that state — a much broader formulation.

More importantly, the report’s country-by-country analysis (Annex II) does not indicate that Amnesty counts a state as a universal jurisdiction state simply because it has incorporated the Rome Statute into its domestic legislation. On the contrary, the report always paraphrases the specific language in domestic legislation that supports the existence of universal jurisdiction. Consider three states — France, Kenya, and South Africa — all of which have incorporated the Rome Statute:

France

– art. 689-11 (anyone may be prosecuted by French courts who habitually resides on French territory and is responsible for one of the crimes within the jurisdiction of the International Criminal Court – genocide, crimes against humanity and war crimes – committed abroad, if the acts are punishable in the state where committed or if that state or the state of the person’s nationality is a party to the Rome Statute, provided that the prosecution was requested by the relevant minister, and that this official has verified that the International Criminal Court has expressly declined jurisdiction and that no international criminal court has requested surrender and no state has requested extradition)

Kenya

– International Crimes Act 2008, s. 8 (war crimes in International Crimes Act, s. 6 if the person is, after commission of the offence, present in Kenya) Crimes against humanity: International Crimes Act 2008, s. 8 (crimes against humanity in International Crimes Act 2008, s. 6 if the person is, after commission of the offence, present in Kenya) Genocide: International Crimes Act 2008, s. 8 (genocide in International Crimes Act 1959, s. 6 if the person is, after commission of the offence, present in Kenya)

South Africa

War crimes: ICC Act 2002, ss. 4 and 5 (provided that the person, after the commission of the crime, is present in the territory of the Republic and that the National Director authorises the prosecution) Crimes against humanity: ICC Act 2002, ss. 4 and 5 (see war crimes) Genocide: ICC Act 2002, ss. 4 and 5 (see war crimes)

If there are any Amnesty readers out there, please feel free to settle the dispute!

Most reporting on the nuclear agreement with Iran has tended to generalize about the types of sanctions and the impact of the deal on these various measures, so it would be easy to assume that United Nations sanctions are being eased or lifted, but this is not the case. The deal primarily eases unilateral sanctions by the United States and the European Union against Iran, leading to what is estimated to be around $7 billion in sanctions relief.

UN sanctions against Iran—found in resolutions 1737, 1747, 1803 and 1929—will only be assessed at the six-month mark, with an eventual goal (the so-called “comprehensive solution”) of lifting them within a year. In the near term, the only commitment with regard to UN sanctions is that no new nuclear-related UN Security Council sanctions be imposed.

This raises an important issue: how should UN sanctions be approached in the meantime?

Under Article 25 of the UN Charter, member states remain obligated to give effect to Security Council measures. The new deal with Iran has not altered the obligation to implement sanctions.  But on this front, work remains to be done. Gaps in the implementation of UN sanctions against Iran, which have been in place since 2006, are pervasive. Dual-use items, such as goods, software, and technology that may be used for both civilian and military purposes, have been a particular problem. Interpretation of resolution language and implementation of general terms in specific contexts have also led to implementation problems. Finally, because information on sanctions busters can involve classified information, states are very careful about what they share and with whom they share it.

EU officials have made clear that they, too, will continue to strictly implement sanctions not affected by the deal. This strategy was in question due to a series of challenges to UN and EU targeted sanctions. Criteria developed by the European Court of Justice in the Kadi case (regarding sanctions under resolution 1267) now require far greater detail for listings, and indicate that listed individuals and entities must have an opportunity to challenge those listings as a matter of human rights. These ideas are now beginning to  influence the design and expectations for other types of sanctions regimes. (For background on the July 2013 Kadi decision, see my earlier post on Opinio Juris.)

In the past year, and due in large part to the Kadi decision, a growing list of EU sanctions against Iranian entities have been annulled on the basis that there was inadequate detail in the listings and that the lack of evidence affected the right to effective judicial protection. There was also some concern that the advances made by improving due process guarantees would compromise the ability of the EU to maintain sanctions against financial institutions and oil and gas companies. In an important appeal decision three weeks ago, however, the European Court of Justice’s 5th Chamber clarified its requirements, signaling that evidence is required to substantiate listings, resulting in the lifting of sanctions against one company but the upholding of sanctions against another. (See this blog for analysis of the Council of the European Union vs. Fulmen & Fereydoun Mahmoudian and Council of the European Union vs. Manufacturing Support & Procurement Kala Naft cases. )

Most believe that sanctions have had some impact on Iran’s willingness to appear at the negotiating table, but there are some notable dissenters. Hossein Mousavian, a research scholar at Princeton who formerly served as spokesman for Iran’s nuclear negotiators, argued in the Financial Times that “the idea that it is sanctions that have brought Tehran to the table is wrong. The real cause is the desire of new President Hassan Rouhani to reach a rapprochement with the US, the EU, its neighbors and other world powers, alongside the fact that the US red line has changed from ‘no enrichment of uranium’ to ‘no nuclear bomb.’” Dan Joyner at the Arms Control Law blog agrees with this statement, and points out that many of Iran’s negotiating points had actually been included in past agreements.

The real answer about the impact of sanctions—whether multilateral or unilateral—on the Iran deal will continue to be debated, but it is clear that until a comprehensive solution is reached, member states must continue to implement existing UN sanctions. Moreover, many are of the view that these same sanctions are necessary to maintain pressure and signal that a threat to peace and security remains.

As Enrico Carisch, a sanctions expert at Compliance and Capacity International (CCI), notes in an earlier Global Observatory piece, “Whichever sanctions drawdown options are implemented, the surviving sanctions must remain credible. Monitoring of compliance and the pursuit of potential violators requires equal if not more determination than has been the case so far.”

Cross-Posted at the International Peace Institute’s Global Observatory

Novelists such as H.G. Wells and George Orwell used fantastic fiction to describe their world as it was and to imagine, to use Wells’ title, “The Shape of Things to Come.” This past summer I wrote a post on what current science fiction can bring to international law. I mentioned various books that, though fantastic, illuminated topics related to international law, international relations, or national security.

Well, according to my tricorder, I mean, the newsfeed on my smartphone, this past week reality just got a little more science fictional with the revelations of US intelligence agents roaming around in World of Warcraft and Second Life, on the hunt for any terrorist who might be using these virtual worlds to communicate, plot, and even train.

For all the surprise this has elicited, this isn’t the first time we’ve seen virtual worlds (weirdly) interact with the very real world of international relations. There was that time that the Green Lantern Corps had to patrol a virtual refugee camp that had been built by human rights activists in Second Life’s Sudan in order to protect it from vandals.  Or that proprietary financial system owned by a Chinese company that would support financial transfers and investments across the economies of different virtual worlds.  Or that time that NATO commissioned an interactive model of Afghanistan for planning and training.  And then there’s the Swedish Embassy in Second Life…

So, Snowden reveals that U.S. intelligence agents are posing as, let’s say, warrior elves and they’re running around on quests in World of Warcraft looking for al Qaeda organizers.  I’m just not all that surprised.  It is a bit amusing, though, that there ended up being so many intelligence officers online that they had to set up a “deconfliction group” to keep track of who was really whom, so that some Jack Ryan posing as a warrior elf wouldn’t report a wizard as being an al Qaeda operative when that wizard is actually a US agent posing as an al Qaeda operative who’s avatar is a wizard. This truly is “The Looking Glass War.”

These are the types of scenarios one sees in “political science fiction.” Sci-fi bloggers have remarked that the Snowden revelations are not that different from plot points in Neal Stephenson’s novel REAMDE, one of the books I mentioned in my post this summer.  And another author that I wrote about, Charles Stross, has decided to not write the third book in his near future cybercrime trilogy because the present is already arriving at his imagined future. Here’s how Stross put it:

At this point, I’m clutching my head. “Halting State” wasn’t intended to be predictive when I started writing it in 2006. Trouble is, about the only parts that haven’t happened yet are Scottish Independence and the use of actual quantum computers for cracking public key encryption (and there’s a big fat question mark over the latter—what else are the NSA up to?).

I’m throwing in the towel.…<snip> …The science fictional universe of “Halting State” and “Rule 34” is teetering on the edge of turning into reality. Meanwhile, the financial crisis of 2007 forced me back to the drawing board for “Rule 34”; the Snowden revelations have systematically trashed all my ideas for the third book.

Our colleagues in the world of architecture and design have “design fiction”: films and websites devoted to as-yet non-existent objects as a means of thinking about the possibilities of design and engineering and their relationship to society.  Here are three very different examples (noted by Tobias Revell in the previous link): “New Mumbai,” “Microsoft’s Productivity Future Vision,” and “Post CyberWar.”

As lawyers, we spend much of our time looking at precedent, at the lessons of history.  We cannot stop doing that, as history is the great teacher. But we also have to remember that with every passing second, the future arrives. And, like the writers, the designers, the engineers, and the architects, we have to imagine what things may come, and how our work may shape the future and how the future may shape our work.

Because law is itself a disruptive technology.

A nice light-hearted exchange at today’s U.S. State Department media briefing, which shows some folks in government like Jen Psaki still have a sense of humor.

Reporter: “So has the U.S. already issued a visa to Santa?”

Psaki: Santa does not need a visa. He has a visa waiver in the United States. (Laughter.) So he can get to every house, and I assume that’s the case around the world as well.

Reporter: Except if he flies over China.

I had the pleasure of participating in a very interesting discussion yesterday of Argentina’s debt litigation at the Cato Institute in Washington D.C. Richard Samp offered a useful overview of this litigation, and my own talk focused on the strange (and in my view inappropriate) way that the U.S. legal system allows sovereigns to waive immunity from courts, but continues to protect them against most judgments.  Other panelists, including an economist from Moody’s, offered a very interesting set of slides explaining why Argentina’s treatment of its creditors is substantially harsher than almost all other sovereign defaulters in recent decades.I also would recommend watching the video from about the 57th minute to see Arturo Porzecanski of American University criticize the overall policies of the Kirchner government.

I think Argentina is in a bad spot right now and it is possible they will end up losing their final appeals in the U.S. Supreme Court. Indeed, it is possible the Court will not even hear their petition (although hiring former U.S. Solicitor General Paul Clement will no doubt help Argentina).  Still, I doubt the Court will rush to hear this case and if they do, any final resolution might have to wait quite a bit longer. This case has quite a ways to go.

As the political crisis in Ukraine over the government’s decision not to sign an Association Agreement with the EU passes its second week, this conflict and the positioning over other Russian “Near Abroad” countries (especially Armenia, Moldova, and Georgia) are good examples of the interrelationship of norms and geopolitical strategy.

The situation has been largely described in terms of Putin’s reaction to these countries planning on signing new agreements with the EU.  While that is an important part of the story, it is only part. As I described in previous posts (1, 2), this is also very much a story of domestic disputes over norms, ranging from domestic laws to cultural practices.

And, closely related to this latter aspect of normative geopolitics, is the importance of domestic politics in country that has significant ideological divisions.

This might actually be another iteration of Ukraine’s strategy of balancing both Russia and the EU by playing both sides and committing to neither. Political analyst Nicu Popescu has written:

In fact, Kiev chose not to choose at all and tried hard to maintain the status quo in Ukraine’s foreign and domestic policies. Yet in his bid to buy time, President Viktor Yanukovich inadvertently precipitated the biggest crisis of his presidency to date.

Consider in relation to this the New York Times report that “[a]t virtually the same time” that Ukraine cabinet of minsters announced suspension of preparations to further integrate with the EU:

President Viktor F. Yanukovich, who was on a visit to Vienna, issued a statement saying, “Ukraine has been and will continue to pursue the path to European integration.”

In a move emblematic of Ukraine’s often inscrutable politics, Mr. Yanukovich barely acknowledged the developments in Kiev and, responding to a reporter’s question about the pacts with Europe, said, “Of course, there are difficulties on the path.”

Was this an attempt to soften the blow that Ukraine is turning its back on the EU or some complex tacking to serve an immediate need (holding off Russian gas embargoes as the winter sets in) while deferring a longer term goal (increasing European integration)? Even Kiev-watchers seem a bit befuddled.

But that’s politics in a systemic borderland…

(Continue Reading)

The drive from Paarl to Cape Town was only forty-five minutes. The plan was for Nelson Mandela to address the world at the Grand Parade, the great public square adjacent to the Fort of Good Hope, where South Africa’s founding father Jan van Riebeck had established a toehold for the Dutch East India Company in the 17th century. As Mandela drew near to the Grand Parade an enormous crowd enveloped his car. A massive hailstorm of joyous fists hammered down on the boot and bonnet. Well-wishers jumped on the car in celebration, and it began to shake violently. “I felt as though the crowd might very well kill us with their love,” Mandela recalled. Attempts to clear a path were futile and Mandela sat there, stranded in his vehicle for hours. After over ten thousand days of imprisonment, Mandela was now imprisoned by tens of thousands of his most ardent supporters.

Parade marshals eventually came to the rescue, and Mandela finally reached his destination several hours late. Standing on the balcony of the City Hall overlooking the Grand Parade, he looked down on “a boundless sea of people cheering, holding flags and banners, clapping and laughing.” He began his speech in his native Xhosa tongue, leading the massive crowd in the responsive chant that was a regular feature of anti-apartheid gatherings.

“Power!” Mandela bellowed with his fist raised.

“It is ours!” replied the cheering crowd.

“Power!” Mandela repeated.

“It is ours!” yelled the throngs.

“Africa!” chanted Mandela.

“Let it come back!” they chanted back.

“Let it come back!” Mandela replied.

“Africa!” they answered, in a crescendo that was decades in the making.

As the crowd settled down, Mandela embarked on a militant speech that embraced the battle against apartheid on all fronts. “Our struggle has reached a decisive moment,” Mandela said. “We call on our people to seize this moment so that the process toward democracy is rapid and uninterrupted. We have waited too long for our freedom. We can no longer wait.” Saluting communists and combatants, embracing international sanctions, and vowing to continue the armed struggle against apartheid, Mandela catered to his swelling ranks and flamed the fears of his nervous opponents. After twenty-seven years of internal exile, Mandela knew that the first step toward peace was to restore his leadership within the African National Congress.

White South Africans were shocked by Mandela’s fiery speech. The day before President F.W. de Klerk had assured them that Nelson Mandela was “committed to a peaceful solution and a peaceful process.” After hearing the speech, de Klerk felt deceived. “I realized once again that the road ahead would be extremely difficult.”

The great question that had vexed South Africa for decades was, “Not if, but when?” When would the dawn come? The sun-tipped mountains shone bright, but the great valleys, the valleys where old men and women scratched the red blood soil to survive, remained in darkness. “When,” in the words of Cry the Beloved Country, would “that dawn … come, of our emancipation, from the fear of bondage and the bondage of fear?” “Why, that,” Alan Paton concluded, “[was] a secret.” Forty years after that forlorn question was asked it remained an unanswered secret.

The answer did not come on February 11, 1990, the day of Mandela’s release. Nothing Mandela said that day assuaged white fears or emancipated black bondage. At most one could glimpse the first lights of the new dawn on the tips of the mountain. “The road ahead may be long and hazardous,” wrote Archbishop Desmond Tutu, “but at long last it seems what so many have prayed and fasted for … seems more attainable than ever before.”

President F.W. de Klerk, the one responsible for Mandela’s freedom, was more sanguine: “I was struck by an inescapable truth: an irreversible process had begun—and nobody could predict precisely how it would end.”

I love Canada, and I have long been intrigued by plans to unite the U.S. and Canada in deeper political and economic integration (See this post from 2005(!)). So I have been excited to see the idea getting some mainstream media love with discussions of Diane Francis’s new book  Merger of the Century: Why the U.S. and Canada Should Become One Country.

I haven’t read the book, but judging from the zillions of media excerpts, her argument appears pretty straightforward.  The U.S. and Canada should merge, largely on economic grounds, so that the two countries can compete with rising economic powers controlled by state-owned enterprises (e.g. China) and with growing military power (China and Russia).  I am not sure merger is really needed here, and I am also unsure what the Canadians get out of merger since they already get U.S. military protection and seem to move in and out of the U.S. in large numbers at will.  But whatever, I love this idea.

Still, how exactly would such a “merger” work legally? Francis suggests either the Germany 1990 model (would Canada be East Germany?) or some sort of European Union-type treaty.  Let’s put aside the “merger” idea because unless Canada just entered the U.S. as a gigantic state, or even several states, any merger would require a U.S. constitutional amendment. And bringing in Canada as states would make the Democratic Party the governing party in the U.S. for the rest of my lifetime and my daughters’.  Republicans know this, and would never agree.

An E.U.-style customs union would be much more realistic.  The U.S. and Canada could create by treaty a common external trade policy, and work to eliminate restrictions on the freedom of movement, goods, investment, and services within North America.  NAFTA is sort of halfway there, actually, without the common external trade policy.

The U.S. and Canada could also unify their external foreign and military policies (much harder, I admit), again on the EU model. With respect to North American domestic defense, the US and Canada are already kind of there with a joint Air Defense Identification Zone.  Naval cooperation would be pretty easy too.  Now about foreign policy, though.  That would be really hard.  We don’t like killing baby seals, and Canadians are not psyched about invading Middle Eastern or Central Asian countries.

In reality, I think Francis might be satisfied with a U.S.-Canada customs union (Mexico might have to be left out for now). She is mostly making her case on economic grounds, and I think a customs union would accomplish most of her goals. It is not legally that hard, and it is politically plausible. The only downside is that we wouldn’t get to design new flags or new country names.  The United States of North America (USNA)?  The North American Union?  Camerica? Americanada?…

Simon Lester of the IELP Blog raises an interesting and possibly important point about the new WTO Agreement just reached in Bali.  In order for the U.S. to enter into the agreement, will the U.S. Congress have to approve it?

On first glance, the answer would seem to be: “yes” since the U.S. Congress invariably is required to approve all U.S. trade agreements (as opposed to just the Senate, if it were a treaty).  In any event, I would have thought the U.S. Congress would have to approve the new Bali agreement as new legislation.  But then Simon points out this comment by U.S. trade officials from Inside U.S. Trade:

At the press conference, Punke said the Obama administration does not believe the deal requires congressional approval. “Our analysis of the trade facilitation agreement is it can be effectuated through administrative means and would not require legislation to put it into force,” he said. The obligations of the trade facilitation agreement are enforceable under the WTO Dispute Settlement Understanding.

This makes sense if one thinks of congressional approval of executive agreements as simply implementation of international obligations into domestic U.S. law.  But the congressional role in trade agreements has also been understood to fill in for the role of the U.S. Senate in approving treaties even if those treaties have no domestic law impact.  For U.S. law purposes, the President can’t enter into a treaty unless the Senate gives its advice and consent.  In the trade agreement context, I think many scholars have thought that Congress’ approval of those agreements by a majority of both houses serves the same role of giving the input of the legislature on the President’s decisions to enter into international agreements.

Or perhaps not.  Maybe the President really is free to bind the U.S. under international law via executive agreement on trade matters without any approval of Congress as long as no domestic law change is needed. This means that trade agreements really are just sole executive agreements that Congress is not really approving, but just implementing into U.S. domestic law.  And if no implementation is required, no Congress. This makes sense, but I just don’t think this the common understanding of how or why these congressional-executive agreements work.

One way out of this problem is (as Simon also points out) to understand the Bali Agreement as an amendment to the WTO Agreement. That agreement  (in Art. X) specifically outlines a mechanism for amendment which requires “consensus” (e.g. unanimity) or (depending on which provision is being affected) a two-thirds vote of the Ministerial Conference. In this way, Congress may be understood to have already approved future amendments to the WTO Agreement when it “approved” the original WTO Agreement back in 1994.  This “delegation” theory is probably a better explanation of why no congressional approval qua approval is needed for the Bali Agreement. Not totally satisfying, but probably enough here.

Your weekly selection of international law and international relations headlines from around the world:

Middle East

• The UN General Assembly has elected Jordan to the Security Council to replace Saudi Arabia, which had rejected the seat in an unprecedented act to protest the council’s failure to end the Syrian and Israeli-Palestinian conflicts.
• Syria’s Bashar al-Assad will remain president and lead any transition agreed upon in Geneva peace talks planned for next month, a government minister has insisted.
• Jabhat al-Nusra, al-Qaeda’s local branch in Syria, has sent Al Jazeera exclusive footage of what it said was a drone it shot down while it was flying over Aleppo, saying it was the first operation of its kind for the group.
• Forces loyal to Syrian President Bashar al-Assad have killed seven children during fighting for the town of Nabek, north of the capital Damascus, activists said.
• UN inspectors visited an Iranian plant linked to a planned heavy-water reactor that could yield nuclear bomb fuel, taking up an initial offer by Tehran to open its disputed nuclear program to greater scrutiny.

Asia

• The World Trade Organization reached its first ever trade reform deal to the roar of approval from nearly 160 ministers who had gathered in Bali to decide on the make-or-break agreement that could add $1 trillion to the global economy.
  
• US Vice President said that North Korea would never achieve prosperity as long as it continued to pursue nuclear arms, but added Washington remained open to dialogue if Pyongyang can show its willingness to honor its commitments.
• The UN and US called for investigations into the findings of a Reuters report that Thai immigration officials moved Myanmar refugees into human trafficking rings.
• Chuck Hagel, the US defense secretary, has held talks in Rawalpindi with Nawaz Sharif, Pakistan’s prime minister, as part of an effort to defuse tensions over controversial US drone strikes and Pakistan’s role in Afghanistan.

Africa

• South Africa expects overwhelming crowds and a host of world leaders to attend services honoring late President Nelson Mandela, the anti-apartheid icon who led the country’s transition from white-minority rule to multi-racial democracy.
• UN forces in the Democratic Republic of the Congo have launched unmanned aircraft to monitor the volatile border with Rwanda and Uganda, the first time UN peacekeepers have deployed surveillance drones.
• France said it will start disarming fighters in the Central African Republic by force if necessary, as relative calm returned to the capital Bangui following three days of heavy fighting between Christians and Muslims.

Europe

• The Vatican refused to provide the UN Committee on the Rights of the Child with information on the Church’s internal investigations into the sexual abuse of children by clergy, saying that its policy was to keep such cases confidential.
• Sweden has been a key partner for the United States in spying on Russia, Swedish television reported on Thursday, citing leaked documents from the U.S. National Security Agency provided by Glenn Greenwald.
• Authorities in Moscow are investigating whether Russian children adopted by American families were illegally trafficked in the United States.
• Spanish Prime Minister Mariano Rajoy urged more unity for Europe and said a banking union for the region should be finalized this month.

Americas

• A Pakistani immigrant in the US who says he was held for more than 10 months in solitary confinement after being falsely arrested on terrorism charges has filed a lawsuit in federal court in Miami, saying he was a victim of “overzealousness” in the U.S. war on terrorism. 
• Colombia’s main leftist guerrilla group, the FARC, said it would implement a 30-day ceasefire from December 15 while the government said it would keep pursuing the rebels after they attacked a police station a day earlier, killing eight.

The National Marine Fisheries Service (NMFS), the U.S. government agency that regulates offshore fishing, has proposed a new set of regulations to reduce bycatch of Bluefin tuna by economic disincentive. The Washington Post reports that:

“Under the proposal, the NMFS would sharply cut back the number of bluefin tuna that individual fishing vessels are allowed to capture accidentally, setting a quota for each boat and requiring fishermen to include the bluefin they discard at sea under that cap. The NMFS also would change the long-standing formula by which it calculates the number of pounds of bluefin tuna that a long-liner may legally bring to shore for sale.”

This effort is very much in line with an article I’ve just published on incentivizing compliance on the high seas.   The article is available here, and it argues for an incentives based approach to management, using the 1911 Sea Fur Seals treaty as a model.  I argue that the scarcity problem of common resources on the high seas should be addressed by better governance and incentives, not by a property rights approach.

Another noteworthy developments on managing high seas tuna fisheries is this new program for a partnership between the Food and Agriculture Organization and the Global Environmental Facility (GEF), a 183 member organization that has acted as a financial mechanism for a number of international climate conventions, in which the latter has committed a whopping $30 million, and is leveraging an additional $150 million in co-financing.   This project will run from 2013 through 2018, and aims to reduce illegal, unreported and unregulated (IUU) fishing through monitoring and control, to lessen ecological impacts from illegal fishing, and to improve biodiversity.   Árni M. Mathiesen, FAO Assistant Director-General for Fisheries and Aquaculture stated: “Through collective action at all levels and broad cooperation that optimizes the use of scarce resources, this project – and the wider Common Oceans  initiative – will help move the world away from ‘the race to fish’ and towards implementation of an ecosystem approach. This is crucial to ensuring the future well-being and productivity of these vital marine ecosystems. Early successes will create incentives for donors and agencies to further invest in these types of catalytic projects.”

If you have an opinion on the NMFS regulations, the deadline for public comments ends on December 10.

China’s East China Sea Air Defense Identification Zone (ADIZ) has spawned tons of media commentary, so much so that I have had little to add and can barely keep up with all the coverage. Still, there is one small legal point that bears some further discussion.  While I think the U.S. is correct as a matter of policy to push back against China’s ADIZ, the legal framework underlying the U.S. position is awkward and borderline incoherent.  In fact, the confusing U.S. legal position may explain why the U.S. is not sympatico with Japan on China’s ADIZ.  Let me explain.

It is worth noting that U.S. has not condemned China’s ADIZ as a violation of international law. Instead, the U.S. has called it “unacceptable” and a change in the “status quo”.  Meanwhile, the Chinese have wielded international law as a rhetorical weapon on their side, by citing the U.N. Charter from the outset.  This may seem odd, but in fact, the Chinese are sort of right about this.

As Peter Dutton notes in his AJIL article, establishing an ADIZ is not in itself a violation of international law,  Indeed, it is usually justified by a need to create an early warning system to protect national airspace.  China’s ADIZ seems pretty large (map can be found here), and the U.S has rightly complained that aircraft just transiting the ADIZ should not be subject to China’s requirements if those airlines are not planning to enter (or even come near to) Chinese national airspace.

But China’s ADIZ is carefully drawn to include two sets of islands/rocks that it claims as sovereign territory: the Senkakus/Diaoyu (also claimed by Japan) and the Ieodo/Suyan Rock (also claimed by South Korea).  To the extent those territories are “national airspace”, China can argue that it should be allowed to draw an ADIZ around them to ensure any airplanes coming near them will not enter that airspace, etc.  As Zachary Keck suggests, China is using the ADIZ to subtly build its legal claim to sovereignty over the Senkakus/Diaoyu Islands. Hence, China is probably invoking the UN Charter’s self-defense provision to justify its ADIZ and its need for all foreign aircraft to report flight info/etc. when entering the ADIZ.  (Some commenters to my first post have suggested China can’t invoke self-defense over a disputed territory, or uninhabited islands that don’t otherwise threaten its national airspace.  I am not sure the customary practice is clear on this, since Japan’s ADIZ, which also covers the Senkakus/Diaoyu, couldn’t be justified either under this view. Also, for the purposes of this post, I am assuming China has a plausible claim to the islands).

Seen from this perspective (at least vis-a-vis the U.S.), China’s ADIZ is not inconsistent with any existing international agreement or customary legal rule.  This is largely because of the strange and confusing U.S. position on the sovereignty over the Senkakus/Diaoyu Islands.  The U.S. does not take any official position on which country (China, Taiwan, or Japan) has sovereignty over these islands.  But it recognizes that Japan has administration over them (indeed, it was the U.S. that turned them over to Japan back in 1972) and the U.S. has repeatedly declared that such islands fall within the scope of the U.S.-Japan Defense Treaty.But since the U.S. does not recognize Japanese sovereignty over the Senkaku/Diaoyu Islands, why should it complain when China draws an ADIZ intended to protect airspace over those islands?

This wrinkle in the U.S. position also explains Japan’s harsher reaction to the Chinese ADIZ. To Japan, China is literally demanding Japanese airlines report to its military before crossing airspace into or near Japan’s own national airspace.  It would be like China demanding information from US airlines flying between San Francisco and Hawaii (Congress would explode with indignation).  But from the U.S. perspective, China is just demanding information about airlines flying near disputed airspace that may or may not be part of China anyway.  This is a threat to freedom of international air navigation, but it is not anything like the same kind of affront to sovereignty that it is to the Japanese.

The U.S. position would be more legally coherent if it would simply recognize Japan’s sovereignty over the Senkakus/Diaoyu.  After all, if the U.S. Navy is willing to fight and die for these islands, the U.S. should at least decide whose owns these islands. (If China creates an ADIZ in the South China Sea, the U.S. will also have the same dilemma. See Michael Kelly’s recent essay on the strategic implications of such an ADIZ).  China is subtly probing the U.S. position here, and it has opened up a slight wedge between the U.S. and Japan.  But this wedge is a result of contradictions in the U.S. legal position, not China’s clever diplomacy.

Calls for Papers

• As the 10th anniversary of the 9/11 Commission Report approaches, the recurring dispute over the boundaries of the post-9/11 national security state is once again in full swing. Governing Intelligence will move beyond the surveillance debate to start an interdisciplinary dialogue about the power and limits of intelligence agencies from a comparative and international perspective. The Stanford Journal of International Law seeks contributions by academics, practitioners, and policymakers in the form of approx. 10-15,000-word scholarly essays or 5,000-word white papers on either of the following topics: (a) National Intelligence & Transnational Threats; or, (b) Individual Rights & Intelligence Gathering. Please send a 1-2 page abstract of your essay or white paper in Word format, a C.V. of the author(s), and point of contact information to sjilboard [at] gmail [dot] com by 5:00PM PST on February 1, 2014. The full announcement, along with sub-topics and submissions instructions, can be found here.
• The British Branch of the International Law Association has issued a call for papers for the Spring Conference (May 23-24, 2014). The organizers are particularly interested in contributions that shed new light on the following foundational questions: the relationship between international, regional and domestic legal orders; the identification and development of customary international law; and the regulation of armed conflict. Re-examining foundations in the light of new information and modes of thinking leads naturally to the imagination of possible futures. In this respect we are also seeking papers that explore the relevance of new theoretical paradigms (for example, the idea of transnational law) or analyze issues of concern to present and future generations, such as combating climate change, preventing human trafficking, managing financial risk, encouraging businesses to respect human rights and promoting socially responsible investment.This conference will combine pace-setting panels with keynote speeches that will present a striking vision of lawmaking in the future. The organisers also welcome the submission of unsolicited proposals. These should be one page long and sent to ilaconf [at] kcl [dot] ac [dot] uk by 30 January 2014. The call can also be found here (.pdf).

Events

•  ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) would like to invite you to the next session of the Joint International Humanitarian Law Forum. The session will be held on December 16, 2013.  In this session Dr. Ruvi Ziegler will present his new paper: Non refoulement Between Common Article 1 and Common Article 3. The article considers whether, in the context of armed conflicts, certain non-refoulement obligations of non-belligerent States can be derived from the 1949 Geneva Conventions. Following the lectures there will be an open round-table discussion, all of which will be conducted in English. Those who wish to participate are asked to register in advance at forum [at] alma-ihl [dot] org. More information can be found here.

Announcements

• ASIL’s Lieber Society on the Law of Armed Conflict has submitted a reminder for its call for the Richard R. Baxter Military Writing Prize (.pdf). Deadline for submission is December 31, 2013.
• The GlobalTrust Project at Tel Aviv University Faculty of Law, directed by Professor Eyal Benvenisti, invites candidates interested in exploring themes related to this project, to apply. There is one post-doctoral fellowship ($25,000 per one year), two doctoral fellowships ($20,000 per year, up to three years) and two visiting fellowships ($1,500 per month, between 3-6 months). The application deadline (for the academic year of 2014-2015) is 1 February, 2014. For more information about the project, click here. Click here for information about the fellowships.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

I’ve been so distracted with my own projects and with China’s ADIZ that I forgot to note that Russia has been in violation of its obligations under UNCLOS since at least December 2.  But that’s OK, it seems that everyone else has forgotten this fact as well.

December 2 was the date set by the International Tribunal for the Law of the Sea for compliance with its order that Russia “immediately release the vessel Arctic Sunrise  and all persons who have been detained, upon the posting of a bond or other financial security by the Netherlands….”  The Netherlands has posted that bond, and as far as I can tell, the Arctic Sunrise has not been released, and none of the detainees have been allowed to leave the “territory and maritime areas under the jurisdiction of the Russian Federation.”  (All have been granted bail, though.)

Russia has no obligation to participate in the ITLOS proceeding, but it has a clear obligation under Article 290(5) to “comply promptly with any provisional measures prescribed…” by the ITLOS.  So Russia is now in plain violation with a lawful judgment of the ITLOS.

What is amazing about this violation in plain sight is that the media appears to have forgotten about this lingering ITLOS order. Russia ignores the ITLOS, and….nothing.  Even the reliable Greenpeace Blog is fairly quiet since their folks are out on bail.  So it turns out no one really cares all that much that the ITLOS has been essentially rendered a nullity in this case as a result of the unilateral action of one of UNCLOS’s member states. I suppose that the Dutch are working out some sort of diplomatic settlement. But this doesn’t change the formal legal violation.

Why do I bring this up? Because if Russia takes no reputational hit from its defiance of ITLOS here, then it seems less likely that other states will worry about the reputational hit from defying ITLOS or other international courts.  Hence, Paul Reichler (the Philippines U.S. attorney in its arbitration) is almost certainly wrong when he said recently:

….[T]here is a heavy price to pay for a state that defies an international court order, or a judgment of an arbitral tribunal that is seen, that is recognized, in the international community as legitimate, as fair, as correct, as appropriate,” Reichler said in a forum hosted by the US-based Center for Strategic and International Studies (CSIS) on Tuesday evening, Philippine time.

“There’s a price to be paid for branding yourself as an international outlaw, as a state that doesn’t respect, that doesn’t comply with international law,” said the topnotch lawyer, who has defended sovereign states for over 25 years.

Hmm…Iran in 1980 (Hostages), the U.S. in 1984 (Nicaragua) and 2008 (Mexico), Colombia in 2013 (Nicaragua)…uh, sorry Paul, I’m not seeing any heavy prices being paid.   So far, Russia is offering a real-life empirical counter-example to Reichler’s claim. Indeed, I don’t see that Russia is paying much of a price at all, so far.  Maybe this is because Russia’s international reputation is not exactly at an all time high, right now. Stlll, China is watching.  If Russia can ignore ITLOS in a case where they actually have detained 30 foreign nationals (mostly from the U.S., Australia, and Europe), then do we really think China will suffer much damage from ignoring an arcane ruling about a bunch of rock/islands where no actual human beings are actually affected?

Amidst all the more substantial reflections on the life of Nelson Mandela, it feels ridiculously trivial to keep thinking of my own fleeting moment of meeting him back in 1994. But keep thinking of it I do. I was a terribly junior staffer in the Clinton White House then, a writer and editor of presidential prose, at least for those texts unimportant enough for the more senior members of the staff to worry about keeping for themselves. Mandela was the newly elected President of South Africa, in town for an official state visit to the White House, and to address what turned out to be massive crowds in various other venues around town. He was a rock star.

It was a spectacular early fall day, and four or five of us juniors had ventured outside to loiter next to the small driveway that separates the West Wing from (what was then called) the Old Executive Office Building. Ostensibly, someone had wanted to smoke. In reality, as had to have been completely evident as the group edged toward the side of the drive that would afford the best view of Mandela addressing the press outside West Wing reception after he left his oval office meeting, we were hoping to catch a last glimpse. We weren’t disappointed – soon there he was, not 40 feet away, taking his place at the outside podium, calmly taking questions, saying who knew what to the similarly adoring press (we were too far away to hear the exchange).

The press was dispersing, and we were about to, too, when he turned away from his own waiting staff and began walking toward us, all by himself. Those long moments it took him to cross what seemed like far too great a distance to be worth the trouble, I kept thinking that there must be someone else, someone more senior, behind us. Or that one of my young colleagues was actually his secret godchild. Or anything that would reasonably explain why Nelson Mandela would take the time to walk an extra 40 feet in our direction. But it wasn’t any of that. He was just walking over to say hello. To shake our hands, each in turn.

When my turn came, I could barely remember my name. “And what do you do, Deborah?” he asked, shaking my hand, as gracious as anyone I had met – vastly more gracious than most I had met – in Washington so far. I must’ve said something because he gently nodded and laughed before moving on to my colleague. By then I was marveling at how gentle he seemed, how peaceful. And wondering how he and the President had gotten along. How he had approached the small talk in those conversations – the man on the one side whose ascendancy to the presidency had been a historically modest political triumph, the man on the other side who had become president by changing the world.

There was something else, too, that I couldn’t quite put my finger on at first. Not until he had turned to walk away. He had looked me in the eyes when he shook my hand – had done so to each of us I think. It was an unfamiliar sensation in professional Washington. Out in social D.C., folks would commonly look past me, over my shoulder to whomever was older, more interesting, more important. On White House territory, everyone’s gaze almost always flickered chest-ward on first meeting – to the security badge whose color distinguished the status of those who had access to the West Wing from those who didn’t. One could explain Mandela’s difference in this regard easily enough I suppose. He didn’t know the badge code. He had already met all the more senior people he needed to meet. Had no one at all he needed yet to impress. Had the gift of the greatest of politicians – the ability to make one feel as if one matters most in the world.

All of that is probably true. It is also true that he knew what it meant, human dignity. He knew what it was worth. And what was so very remarkable about him – he never stopped teaching by example.

The WTO’s new Director-General Roberto Azevedo is celebrating a rare event:  The WTO’s entire 159-country membership has finally reached  a new multilateral agreement.  This is the first time that the WTO’s membership as a whole (as opposed to smaller groups of its member states) has reached an agreement since it was formed in 1994 and the first set of agreements under the so-called “Doha” round of negotiations that has been going on since 2001.  Most commentary in the United States and elsewhere describe this as a pretty small-bore agreement on trade facilitation and agriculture (especially given the scope of the original agenda under Doha).

I am intrigued by some commentary coming out of Bali to the effect that a new agreement is needed to keep the WTO relevant and legitimate in the eyes of its members.  The WSJ has this unattributed comment:

Some negotiators said the limited pact gives the WTO credibility to continue its other main role: as an arbiter of trade disputes.

The WTO works by consensus and the breakdown of the talks could also have hurt the organization’s dispute-settling mechanism, they said.

I guess I am skeptical that the lack of progress on  new agreements will have any serious impact on the ability of the WTO’s famous dispute settlement body to stay relevant.  With or without the new agreement, the WTO is already an immensely deep and complex web of legal obligations for a larger and larger set of members. Interpreting these obligations, and managing disputes, is probably significant enough to most members that they don’t feel like they need a new agreement to stay engaged.

Anyway, the Bali agreement is only a “draft ministerial declaration” which needs to be formalized next year.  Then, the U.S. Congress will have a chance to vote on it (and probably the Asian and European regional trade deals).  This ought to be loads of fun in a congressional election year.  At least they don’t have to get two-thirds of the U.S. Senate on board.

The two-part series I mentioned in my previous post seems designed to rehabilitate Judge Harhoff’s image in the international-law community. Unfortunately, the articles, which draw heavily on an interview with the judge himself, simply underscore why it was necessary for the ICTY to remove him from the Seselj case. To begin with, consider what the judge says in the second article about how his infamous email, sent to 56 of his closest friends, was leaked to the press. One might speculate that one of those 56 friends might have leaked it. But not Judge Harhoff. He suspects the shadowy hand of foreign intelligence services (emphasis added):

For Mr. Harhoff, however, the rub was elsewhere. He asks: Who would have had an interest in leaking the email – and why leak it to a tabloid newspaper like B.T.?

”None of 56 recipients reads a newspaper like B.T. If one of them wanted to leak my email they would most likely have preferred more reputable newspapers such as Politiken or Information,” Mr. Harhoff inferred, “and at least they would have consulted me first.”

All 56 recipients have since given him personal guarantees they didn’t leak it. Mr. Harhoff also asked each of them whether they had forwarded his message to someone else, but not everyone responded to this question. So he believes that in all likelihood the mail was passed on to a third party unknown to him.

Who could it be?

”I am sure that all judges are having their email correspondence monitored,” Mr. Harhoff said (a suspicion shared by several other judges, as far as Information has been able to ascertain).

”It might make sense to assume that if a foreign intelligence service were able to read my email this would be a smart way to silence me by making it public”, he said.

Yes, foreign intelligence services — presumably those of Israel and the US, whom Judge Harhoff believes put pressure on President Meron to adopt the specific-direction requirement — are so worried about one judge at a tribunal with limited jurisdiction that they read his email and conspire to silence him. Makes perfect sense.

Judge Harhoff also has interesting things to say about his President Meron accusation:

During the interview, Mr. Harhoff seemed to be of two minds. On the one hand, he conceded that his contention of Mr. Meron’s possible motives was ”pure  speculation”. On the other hand, he left open the possibility that a likely explanation for Mr. Meron’s radical departure from a “more or less set practice” could be that he had somehow been influenced by outside military interests.

”In military establishments, some people might have been uncomfortable having to accept the evolving liberal jurisprudence at ICTY, since this could set a precedent for the International Criminal Court, ICC. And in the future that could make it very hard to be a general,” Mr. Harhoff said.

[snip]

In the interview Mr. Harhoff mused: ”Why was it so important for Meron to ensure the acquittal of two Croatian officers who were accused of indiscriminate shelling of towns and civilian centers?”

He wondered: ”It has been pointed out by many others that the United States strongly supported the Croats with arms and intelligence. Gotovina was only able to defeat the Serbs militarily because of the American support. Would that in any way implicate the US Army? Probably not. But we don’t know what the accused might have revealed, if he had been convicted.”

So Judge Harhoff admits that it is “pure speculation” that President Meron manipulated his fellow judges into acquitting Perisic, Stanisic, and Simatovic.(And apparently Gotovina.) But he still believes — and, worse, says to a journalist after the email scandal — that President Meron is an American and Israeli puppet.

And we’re supposed to believe that the ICTY shouldn’t have removed Judge Harhoff from the Seselj case?

I get that many people don’t like the specific-direction requirement. I understand the anger that the Perisic, Stanisic, and Simatovic acquittals have generated. I’ve even explained why, though I think the Appeals Chamber was correct to reinvigorate the specific-direction requirement in Perisic, I would have preferred a different doctrinal mechanism.

But I am really, really tired of people — journalists, human-rights activists, scholars — who cannot be bothered to actually read the Perisic judgment. I’ve blogged about basic errors before. (See here and here.) But this two-part series (here and here) on Judge Harhoff takes the cake. Consider the following quotes from the articles (emphasis mine):

In the Perisic case, the Trial Chamber’s conviction was overturned by the Appeals Chamber by adding, without further explanation, the requirement that the accused general, in addition to his military assistance and his knowledge of the commission of the crimes, should also have given the direct perpetrators a “specific direction” to commit those crimes.

In his study Mr. Stewart showed that General Perisic was the first military commander to be acquitted according to the principle that it must be proven that a general gave his subordinates “specific direction” to commit a crime. [Note: Stewart understands the requirement. The journalist here doesn’t understand Stewart.]

Charles Taylor was accused and convicted in trial court of ’aiding and abetting’ war crimes in Sierra Leone’s civil war. In its decision, the Appeals Chamber questioned whether at all, under the new standard, it would be possible to prove to whom the accused would actually have given his “specific direction” to commit the crimes.

In fact, as a judge in the Trial Chamber that had convicted general Perisic in the first instance, the South African strongly opposed the majority’s conviction of the accused and wrote a dissenting opinion in which he argued that the general should be acquitted, because the Prosecution had not proven that the general had given “specific direction” to the perpetrators.

In his dissenting opinion, Judge Moloto wrote that it was not enough that general Perisic had been aware of the crimes committed by the Bosnian Serbs in Bosnia, who received arms and intelligence from the Serbian army through general Perisic. It also had to be proven that the accused had in fact ordered the Bosnian forces allied with Serbia to commit the crimes in question.

In one of the cases, two high-ranking Croatian military officers were acquitted on a mere technicality. In the other case, the Appeals Chamber acquitted a Serbian general by overturning a standard previously used in Trial Chambers to convict senior officers for ”aiding and abetting” war crimes committed by perpetrators on the ground. All of a sudden, the Appeals Chamber required that a senior officer must have given “specific direction” to commit the crimes for which the officer stands accused.

Six quotes — each completely and utterly wrong. As I have pointed out before (many times…),Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. Ordering and aiding and abetting are completely different modes of participation. A perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of aiding and abetting’s actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the crime’s commission.

Again, I have no problem with criticizing the specific-direction requirement. But people need to criticize what the Appeals Chamber actually held in Perisic. If you can’t be bothered to read the judgment, you have no business writing about it.

[Sondre Torp Helmersen is an LLM candidate at the University of Cambridge, teaches at the University of Oslo, and is an editor at the Cambridge Journal of International and Comparative Law.]

The recent nuclear deal between Iran and the “P5+1” may potentially bookend a long period of intermittent diplomatic troubles for Iran. The mutual distrust and hostile rhetoric that have accompanied (and obstructed) the negotiations are traceable to the fallout over the taking of US diplomats in Tehran as hostages in 1979, in what is usually called the Iran hostage crisis. The diplomatic breakthrough that the deal represents provides an opportunity to revisit the impact of that crisis on the current state of diplomatic law. Some parts of its legacy are widely appreciated, while others are less well understood. This post will focus on a somewhat overlooked distinction, namely that between countermeasures against abuses of diplomatic immunity and violations of diplomatic immunity as countermeasures.

1. Background: The Tehran case and self-contained regimes

The hostage crisis led to a judgment by the International Court of Justice (the Tehran case, [1980] ICJ Rep 3). The Court found that actions attributable to Iran had violated the diplomats’ immunity. Iran argued, among other things, that the hostage takings could be seen as countermeasures against foregoing abuses of diplomatic immunity by the diplomats. Responding to this, the Court pronounced as follows:

“… diplomatic law itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions.” (para 83)

“The rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving States to counter any such abuse. These means are, by their nature, entirely efficacious, for unless the sending State recalls the member of the mission objected to forthwith, the prospect of the almost immediate loss of his privileges and immunities, because of the withdrawal by the receiving State of his recognition as a member of the mission, will in practice compel that person, in his own interest, to depart at once.” (para 86)

The interpretation and ramifications of these passages are still debated. There are (at least) four possible readings. Continue Reading…

“[N]othing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures … necessary to protect public morals.” Article XX(a), GATT 1994

The long-awaited WTO panel decision on the EU’s ban of seal products is now available. The case raises one of the most interesting unanswered questions regarding WTO jurisprudence: to what extent may Member States impose trade restrictions based on moral or ethical concerns? Can a Member State impose a trade ban because the manner in which a product is produced violates the State’s own subjective understanding of public morals? The answer from the WTO panel is a resounding yes.

The case arose out of the EU’s concern for animal welfare. Seal hunting often involves the inhumane killing of seals resulting in needless suffering. The EU banned the importation of seal products, but exempted hunting by Inuit communities (IC hunts) and in furtherance of marine resource management where seals threatened fishing stocks (MRM hunts). Canada and Norway objected to the ban on seal products, and filed a case before the WTO. A WTO panel issued their report last week.

The case required the WTO to assess whether public morals can justify the ban on seal products. Under WTO jurisprudence, the standard for what constitutes “public morals” is exceedingly easy to satisfy. As stated in US–Gambling, “public morals” are “standards of right and wrong conduct maintained by or on behalf of a community or a nation.” The content of public morals “can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values.” (See para. 7.380). In essence, the WTO panel must assess whether there is public concern about a particular issue and whether that concern is animated by that particular Member State’s public morals. (See para. 7.383).

In EU–Seal Products, the WTO panel examined the text of the regulation and the legislative history as evidence that there was public moral concern about the issue. Ethical concerns expressed in the text of a regulation combined with legislative debate about the morality of the issue appeared to be sufficient for the panel. (The panel dismissed public surveys as inconclusive). On finding that there was a EU concern, the panel held that the:

EU seal regime’s objective is to address the moral concerns of the EU public with regard to the welfare of seals, including the incidence of inhumane killing of seals and EU participation as consumers in and exposure to economic activity which sustains the market for seal products derived from inhumane hunts. EU public concerns on seal welfare appear to be related to seal hunts in general and not to any particular type of seal hunts. In other words, all inhumane seal hunts are of concern, not just commercial hunts. (See para. 7.410).

The key holding was that seal welfare is a matter of EU public morals that justifies the ban on seal products. (See para. 7.505; 7.631). As for the exceptions, the WTO panel rejected the EU’s exemptions for IC hunts, finding that Inuit hunts in Greenland were large-scale commercial operations that were similar to the Canadian and Norwegian commercial hunts covered by the rule. In addition, the exception for MRM hunts was rejected because the EU did not apply the exception in an even-handed way as compared to Canadian and Norwegian hunts. (See 7.650).

Several points are worthy of emphasis. First, the WTO has embraced moral pluralism. This includes what Rob Howse and Joanna Langille describe in this YJIL article as “noninstrumental moral beliefs” grounded in philosophical or religious beliefs. Islamic countries may ban alcohol, Hindu countries may ban bovine meat, and Israel may ban non-kosher meat. Not because there is anything inherently harmful about those products, but simply because they violate the public ethic of that community. As Howse and Langille put it, “public morals” may be justified either as “instrumental regulation designed to counter certain social ills, or as expressive regulation designed to express or give force to intrinsic moral intuitions or shared values.” The fact that there is not universal concern for seal welfare, or that Canada and Norway do not share EU’s concerns, is irrelevant for WTO purposes.

Second, the public moral concerns may derive from conduct that is wholly extraterritorial to the Member State. Under this reasoning, a Member State should be free to impose a ban on products that destroy the rainforest in the Amazon, harm child laborers at rubber plantations in Africa, or advance blatant government corruption in Asia. Personally, that makes sense to me in light of the prison labor exception (Art. XX(e)) included in the original GATT 1948 to address extraterritorial evils such as products manufactured in concentration camps and gulags. But it is nonetheless a controversial proposition.

Third, satisfying a WTO panel that a matter is of ethical concern requires little more than the sponsor of the legislation making sure to include appropriate language in the preamble of the draft regulation and raising moral concerns on the floor of the legislature. The test is easily met in the hands of a skillful legislator. The indeterminacy of establishing a genuine moral or ethical public concern regarding a particular practice is fraught with uncertainty.

Fourth, determining whether a restriction is “necessary” to protect public morals requires the WTO panel to determine the efficacy of a means in pursuit of an intangible goal. How does one determine whether a trade ban is necessary to further moral objections to inhumane hunting? The WTO panel indicated that as long as the trade restriction materially contributed to the objective of reducing demand and avoiding exposure, it satisfied the “necessity” requirement. (7.636-7637).

Fifth, the public morals exception may become the new battleground for WTO litigation. Rather than consistently ignoring this exception and rushing to litigate Article XX(b) (protection of human, animal, or plant health or life) or Article XX(g) (protection of exhaustible natural resources), the new litigation strategy may be to identify how a trade restriction advances ethical concerns of the Member State. In the future, we may see IP piracy restrictions justified as a reflection of public concern about the morality of stealing, a carbon tax implemented out of moral concerns for the ethics of sustainable development, and restrictions on any number of Chinese products justified out of concern that Chinese workers are subjected to a mandatory one-child-per-family policy implemented through forced abortions. After EU–Seal Products the public morals argument is open for creative interpretation.

To be clear, I support a liberal reliance on public ethics to justify legitimate trade restrictions. But the difficulty is how to cabin the morality exception to avoid abuse. EU–Seal Products is now before the WTO Appellate Body for review and clarification.

One hundred and ten years ago next month, British geographer Halford Mackinder presented a paper at the Royal Geographical Society in London entitled “The Geographical Pivot of History,” setting out the basic tenets of what we now call “geopolitics.”  Strategic thinking during the Cold War was in part framed by geopolitical ideas such as the struggle over key territory in the “global heartland,” namely, Eurasia. But geopolitics today has evolved. It is no longer primarily a military stuggle to take or hold territory. It is now defined by competition over ideas and institutions in relation to strategic goals. Geopolitics has become normative.  Witness Ukraine.

Tens of thousands people are in the streets of Kiev because Ukraine’s political leadership announced two weeks ago that it would not sign an Association Agreement and a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU at the EU summit in Vilnius at the end of November. Rather, the government announced that Ukraine would join the Moscow-led Eurasian Customs Union.  The relationship of foreign policy strategy to norms and laws, of high politics to people in the streets, is the stuff of normative geopolitics.

I had recently written a post about the struggle to define the normative futures of countries in Russia’s “near abroad,” particularly Ukraine, Moldova, Armenia, and Georgia.  (And written about these topics at greater length in various articles and essays.) At issue is whether these countries will become more fully integrated into “European” institutions (especially the EU) or reintegrate with revamped “Russian” institutions (such as the Eurasian Customs Union). When a state is on one side or another of a normative border (Lithuania is part of the European normative order, Belarus is in Russia’s), normative boundaries coincide with national boundaries and the situation is relatively clear. But some states, such as Ukraine, are what I have called “systemic borderlands” that contain aspects of two or more normative systems. When normative systems overlap and jostle within a country, the result can be normative friction.  This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory or which international organizations a state may join.

Ukraine is a particularly stark example of a systemic borderland; its electoral map shows the normative division of the country between further integration with the EU or  with Russia.  The NY Times reported on November 21 that Ukraine’s decision not to sign the Association Agreement:

…largely scuttles what had been the European Union’s most important foreign policy initiative: an ambitious effort to draw in former Soviet republics and lock them on a trajectory of changes based on Western political and economic sensibilities. The project, called the Eastern Partnership program, began more than four years ago.

[This] a victory for President Vladimir V. Putin of Russia. He had maneuvered forcefully to derail the plans, which he regarded as a serious threat, an economic version of the West’s effort to build military power by expanding NATO eastward. In September, similar pressure by Russia forced Armenia to abandon its talks with the Europeans.

The EU issued a memorandum reiterating its (at least official) view that the signing of DCFTAs and Association Agreements with the EU is not normative competition, but rather normative bridge-building between east and west:

While being aware of the external pressure that Ukraine is experiencing, we believe that short term considerations should not override the long term benefits that this partnership would bring. However the European Union will not force Ukraine, or any other partner, to choose between the European Union or any other regional entity. It is up to Ukraine to freely decide what kind of engagement they seek with the European Union…

We therefore strongly disapprove of the Russian position and actions in this respect. The Association Agreement and a DCFTA are opportunities to accompany our common neighbours towards modern, prosperous and rule-based democracies. Stronger relations with the European Union do not come at the expense of relations between our Eastern partners and their other neighbours, such as Russia. The Eastern Partnership is conceived as a win-win where we all stand to gain.

This attempt at framing increasing integration with the EU as a “win-win” for the EU, Russia, and Ukraine, has not persuaded Vladimir Putin…(Continue Reading)

The Office of the Prosecutor (OTP) at the ICC just released its 2013 Report on Preliminary Examination Activities. There is much to chew over in the report, but what is most striking is the OTP’s slow-walking of its preliminary examination into crimes committed in Afghanistan.

The OTP divides preliminary examinations into four phases: (1) initial assessment, which filters out requests for investigation over which the ICC cannot have jurisdiction; (2) jurisdiction, which asks “whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court”; (3) admissibility, which focuses on gravity and complementarity; and (4) interests of justice, whether the OTP should decline to proceed despite jurisdiction and admissibility.

The OTP opened its investigation into the situation in Afghanistan in January 2007. Yet only now — nearly seven years later — has the OTP concluded that there is a reasonable basis to believe that crimes were committed there. And what are those crimes? Here is a snippet from the report:

23. Killings: According to the United Nations Assistance Mission in Afghanistan (“UNAMA”), over 14,300 civilians have been killed in the conflict in Afghanistan in the period between January 2007 and June 2013. Members of anti-government armed groups were responsible for at least 9,778 civilian deaths, while the pro-government forces were responsible for at least 3,210 civilian deaths. A number of reported killings remain unattributed.

24. According to UNAMA, more civilians were killed by members of anti- government armed groups in the first half of 2013 than in 2012. Members of the Taliban and affiliated armed groups are allegedly responsible for deliberately killing specific categories of civilians perceived to support the Afghan government and/or foreign entities present in Afghanistan. These categories of civilians, identified as such in the Taliban Code of Conduct (Layha) and in public statements issued by the Taliban leadership, include former police and military personnel, private security contractors, construction workers, interpreters, truck drivers, UN personnel, NGO employees, journalists, doctors, health workers, teachers, students, tribal and religious elders, as well as high profile individuals such as members of parliament, governors and mullahs, district governors, provincial council members, government employees at all levels, and individuals who joined the Afghanistan Peace and Reintegration Program and their relatives. The UNAMA 2013 mid-year report, in particular, indicated a pattern of targeted killings of mullahs who were mainly attacked while performing funeral ceremonies for members of Afghan government forces.

You can see why it took the OTP nearly seven years to determine (para. 35) “that there is a reasonable basis to believe that crimes within the Court’s jurisdiction have been committed within the situation of Afghanistan.” The crimes are so minor and so isolated that they could only be uncovered by years of diligent investigation.

The OTP obviously could have moved to Phase 3 — admissibility — years ago. So why didn’t it — especially given the pressing need for a non-African investigation? See below…

Calls for Papers

• December 1, 2013, is the deadline for applications for the Third Annual Junior Faculty Forum for International Law, which will be held at the University of Melbourne on July 7, 8 and 9, 2014. Regrettably, no applications can be received after this date, and full details of the application process and requirements are here.
• The Comparative Constitutional Law and Administrative Law Quarterly, an online journal based at the National Law University, Jodhpur, India, is calling for papers for its fourth issue. More information is here.
• On June 5-6, 2014, Edge Hill University (Omskirk, UK) is hosting a two-day
  international workshop. The event will focus on the legal phenomenon of cross-fertilization between international criminal law and human rights principles developed by specialized supranational bodies. The goal is to critically assess the manner in which widely-recognized standards of human rights have been used (or misused) by international criminal tribunals. Proposals are welcomed on topics specified in the call for papers. Interested participants should e-mail an abstract of up to 500 words and a CV by February 15, 2014. Speakers will be informed of acceptance by March 1.
• The College of Law, Qatar University and the Qatari Branch of the International Law Association are co-organizing an international conference focusing on ‘The Syrian Crisis and International Law’. The conference is scheduled to take place on February 25-26, 2014 in Doha (Qatar). Invited speakers will include academics, diplomats, activists and legal practitioners who will discuss different aspects of International Law applicable to the Syrian crisis. The conference aims to not only revisit the tragic events that have occurred but also, most importantly, to think ahead in the quest for peace and justice. The overall objective is to exchange ideas and suggestions on the future of the rule of law in Syria. Interested participants should submit an abstract (800 words maximum) summarizing their argument and ideas that they intend to develop in their presentation. Abstracts should be sent to Dr Yaser Khalaileh or to Dr Adamantia Rachovitsa by December 30, 2013. More information is here.

Events

• The Institute for National Security and Counterterrorism (INSCT) at Syracuse University and the Institute for Counter-Terrorism (ICT) at the Interdiscipinary Center, Herzliya, Israel, are jointly offering an Executive Course on “Counterterrorism in the 21st Century” at Syracuse University’s new Fisher Center in New York City.  More information is here.
• The Inter-American Human Rights Moot Court Competition is a unique trilingual (English, Portuguese, and Spanish) competition established to train law students how to use the Inter-American human rights legal system as a legitimate forum for redressing human rights violations.The 19^th Annual Competition will take place from May 18-23, 2014 in Washington, DC and the theme of the Competition is “Human Rights and Persons with Disabilities and International Human Rights Law“. Since its inception in 1995, the yearly Competition has trained over 2500 students and faculty participants from over 252 universities throughout the Americas and beyond. Written on a cutting-edge topic currently debated within the Inter-American system, the hypothetical case operates as the basis of the competition, and students argue the merits of this case by writing legal memoranda and preparing oral arguments for presentation in front of human rights experts acting as the Inter-American Court of Human Rights. To learn more about the Competition, please visit the website.   Registration is now open for the 2014 competition. Should you have any questions regarding the Competition, please do not hesitate to contact the Coordinator by email at or by phone at +1-202-274-4215.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.