While researching an essay on the use of analogy in IHL, I had the misfortune of reading Al Warafi v. Obama, a recent habeas case involving an alleged member of the Taliban. Al Warafi argued that even if he was a member of the Taliban — which he denied — he was entitled to be treated in detention as permanent medical personnel under Article 24 of the First Geneva Convention (GC I), which provides that “[m]edical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease… shall be respected and protected in all circumstances.” That protected status is very important, because other provisions in GC I — as well as in the First Additional Protocol (AP I), which extends the rules of GC I — require medics to be given a number of protections and privileges that other detainees do not enjoy.

The District Court rejected Al Warafi’s argument, concluding (p. 17) that he did not qualify as permanent medical personnel under Article 24 because the Taliban had not provided him with “the proof required by the Convention — that is, official identification demonstrating that he is entitled to protected status under Article 24. Absent such identification, petitioner simply cannot prove that he qualifies as Article 24 personnel.” In reaching the conclusion, the District Court specifically relied on paragraph 734 of the Commentary to AP I:

A soldier with medical duties is actually an able-bodied person who might well engage in combat; a medical vehicle could be used to transport ammunition rather than the wounded or medical supplies. Thus it is essential for medical personnel, units, materials and transports to be identified in order to ensure the protection to which they are entitled, which is identical to that accorded the wounded, sick and shipwrecked.

The DC Circuit then rejected Al Warafi’s appeal of the District Court’s decision on the same grounds.

I was puzzled by paragraph 734 when I came across it in the District Court’s decision. It seemed obvious that a medic who was not wearing the identification required by GC I and AP I could be targeted without violating the principle of distinction. It seemed equally obvious that a captured medic without proper identification might have a difficult time convincing his captors of his status. But I found it difficult to believe GC I and AP 1 would actually deprive a medic of his protected status simply because he did not have the proper identification. Doing so would serve no humanitarian purpose whatsoever, assuming the individual could establish his status by other means.

But paragraph 734 said what it said. So surely the District Court’s conclusion was correct. Right?

Wrong. Had the District Court bothered to read the next twelve paragraphs in the Commentary to AP I, it would have realised that, in fact, proper identification is not necessary for a medic to be entitled to protected status. Here is paragraph 746 of the Commentary to AP I:

The basic principle is stated in this first paragraph. The right to respect and protection of medical personnel and medical objects would be meaningless if they could not be clearly recognized. The Parties to the conflict therefore have a great interest in seeing that such personnel and objects can be identified by the enemy. Thus the rule laid down here is in the interests of those who are responsible for observing it. In fact, it would be the medical personnel and medical objects of the Party concerned which would suffer from poor means of identification and which could become the target of an enemy that had not identified them. Yet it must be emphasized that the means of identification do not constitute the right to protection, and from the moment that medical personnel or medical objects have been identified, shortcomings in the means of identification cannot be used as a pretext for failing to respect them.

In other words: the District Court and the DC Circuit should not have dismissed Al Warafi’s habeas petition on the ground the Taliban had not issued him with “official identification demonstrating that he is entitled to protected status.” Neither GC I nor AP I require such identification.

Another day, another misunderstanding of IHL by US courts. Sad, but predictable.

Events

• The International Bar Association has announced the IBA Annual Conference on International Criminal Law:International Legal Challenges for 2015 taking place 31 January-1 February 2015 at the Peace Palace in The Hague. More information, including registration and the program, can be found here.
• ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) Herzliya would like to invite you to next session of the Joint International Humanitarian Law Forum. The session will be held on Wednesday, December 10, 2014, 18:30, room C110 (Arazi-Ofer Building, 2nd floor) at the IDC. In this session ALMA Chairman Ido Rosenzweig will discuss his recent publiaction: Combatants Dressed as Civilians?
  The Case of the Israeli Mista’arvim under International Law (Policy Paper of the Israeli Democracy Institute, download here). This event will be conducted in Hebrew, but could be conducted in English with sufficient preliminary request.
• The Harry Weinrebe Annual Memorial Lecture is the first in an annual series to honour the memory of Harry Weinrebe, a philanthropist and the founder of the Dorset Foundation. The series is focused on the protection of international peace and justice, values that were at heart of Mr Weinrebe’s humanitarian activities. In his keynote lecture, Ben Emmerson, UN Special Rapporteur on Counter-Terrorism and Human Rights and renowned barrister will focus on pressing issues at the intersection of peace and justice including: mass digital surveillance in the global age, the use of drones in the fight against international terrorism, the rights of victims of terrorism and areas of good practice in the fight against terrorism. Opening Remarks will be given by Professor Robert McCorquodale (Director, BIICL) and the lecture will be chaired by Dr Andraž Zidar (Dorset Senior Research Fellow in Public International Law, BIICL). The lecture, taking place in London on 4 December 2014, will be followed by a drinks reception. Full details and online booking available here.

Announcements

• 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. We announced its debut last year, but the updated 5th edition has just been released. 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 with a one-paragraph description of your announcement along with hyperlinks to more information. 

That’s the provocative conclusion of the latest research by Joel Trachtman. Trachtman’s articles are typically succinct and seductive, so you owe it to yourself to read the short article (and skim the long appendix).

Trachtman examined 300 different CIL rules and found that only 13 (4.33%) have not been either incorporated in treaties or codified. Trachtman argues that the move toward treaties is because CIL cannot respond effectively to the great modern challenges of international society: global environmental protection, international public health, cybersecurity, financial cataclysm, and liberalization of movement of goods, services, and people. Trachtman also argues that CIL is incapable of addressing enduring challenges of regulating war, protecting human rights, and reducing poverty.

According to Trachtman, the reasons for CIL’s obsolescence are manifold. CIL (1) cannot be made in a coordinated manner; (2) cannot be made with sufficient detail; (3) cannot be made with sufficiently heterogeneous reciprocity; (4) cannot be made with specifically-designed organization support; (5) is not subject to national parliamentary control; (6) purports to bind states that did not consent but failed to object to its formation, and (7) provides excessive space for auto-interpretation by states or undisciplined judges.

For Trachtman, the obsolescence of CIL should lead states to stop arguing about CIL and start legislating mutually beneficial transactions. It should also lead NGOs and advocates to stop trying to “bootstrap a desired CIL past a target state” and instead engage with those states in treatymaking. Academics should “focus our analysis on the politically immanent, interdisciplinary, work of developing proposed rules that are administratively workable and effective, and that achieve actual social goals.” He suggests that the international legal system could survive just fine without CIL. So stop worrying about custom and learn to love treaties.

This is powerful stuff. With this piece Trachtman has done a great service to the academic debate on the relevance of CIL. Perhaps unwittingly, he also has done great service to customary international law by offering a comprehensive appendix that lists 300 of the most important CIL rules. If you want students to quickly grasp the scope and contours of CIL, just peruse the appendix.

Applying Trachtman’s thesis to my world of international economic law, I must concur with much of Trachtman’s argument. International trade law, in particular, is all about negotiating, interpretation, and enforcing treaties. We rarely if ever discuss CIL in a trade class. The very nature of an FTA is that it confers rights and obligations exclusively its Members. The defects of CIL are significant enough that trade law is almost exclusively treaty law.

International arbitration is more complicated. Trachtman only identifies two CIL rules for international economic law (Rule 207 and 208), both codified in the investment chapter of NAFTA Chapter 11. But the norm for investment arbitration is to articulate a general standard of protection in bilateral investment treaties (or FTA investment chapters), and then leave it to arbitral tribunals the task of devising detailed obligations from those general standards. Indeed, most BITs require States to afford investors protection consistent with international law, leaving to tribunals the task of discerning precisely what international law requires. BITs are not codifying CIL, but in a sense they instruct tribunals to create it.

Trachtman would not disagree that CIL is still relevant in limited contexts. He specifically recognizes that occasionally CIL is more precise than a codified rule. International humanitarian law and investment arbitration may be such categories. Likewise, Trachtman would concede that CIL is relevant where the treaty is binding on only a few states, as is the case with rules of state succession.

One can easily find selective instances where Trachtman is wrong. But what I doubt critics will be able to do is refute his general thesis that the codification of international rules through treaties has made CIL increasingly obsolete.

This Thanksgiving week saw several posts of note on Opinio Juris. We hosted a Mini-Symposium on the latest article by James G. Stewart, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. First, Samuel Moyn discussed the ambitious past of corporate regulation, to which Stewart responded in hopes that the ideas set forth by both would be taken up for further critical research.

Next up was Steven Ratner, who reminded us to mind the gap between the ATS and corporate criminality under international criminal law. In Stewart’s rejoinder, he responded to several issues Ratner raised and agreed much more needed to be done with respect to question Ratner raised reminiscent of transitional justice and compliance in human rights.

Finally, Beth Stevens weighed in on the article and gave Stewart two cheers out of three–awarding two for his approach to developing a mechanism to hold corporations accountable (domestic criminal prosecutions), but withholding her last because of the perceived shortcomings of Stewart’s comparative ATS analysis. Stewart clarified his position in his response and offered a few more thoughts with respect to the comparative analysis. In conclusion, Stewart hoped that through academic discussions, cooperation among civil society organizations and domestic efforts that corporate accountability for human rights violations would continue to become a reality.

Another guest post came in from Gabor Rona, who shared his thoughts on Obama’s executive action on immigration, criticizing the position taken by Jack Goldsmith over at Lawfare and pointing out the ineffective role of Congress in passing immigration legislation.

As for our regular bloggers, Julian urged us to get real about the possibilities of an anti-corruption court–he is convinced it would never work. Julian is also convinced that it’s pointless for the US to ratify the Convention on the Rights of the Child.

Kevin announced an event on the ICC and Palestine being held at Doughty Street Chambers on Tuesday, December 2nd in London.

As always, I wrapped up the news and also posted events and announcements.

Many thanks to our guest contributors and have a nice weekend!

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

Over at Lawfare Jack Goldsmith provides a somewhat more nuanced analysis of President Obama’s executive action on immigration than the inflammatory rhetoric flowing from some quarters, see here, here, and here. Jack nowhere uses the words “impeachment” (except to say that it appears to be off the table) or “emperor” in reference to the president. When Jack notes “President Obama’s transformation, in less than three weeks, from an irrelevant lame duck to an overbearing threat to our constitutional order,” I assume it’s a derisive reaction to both hyperbolic extremes. In fact he says that Obama’s move is likely constitutional, but possibly violates “sub-constitutional norms,” according to which congress and the president are supposed to work together to solve big, tough domestic issues.

Here’s why I think Jack’s comparatively mild criticism is still off base.

First, let’s acknowledge the important difference between thwarting the expressed will of congress and merely circumventing a dysfunctional congress. The studied tantrums of a few legislators should not be confused with congressional consensus. The constitution quite clearly provides the president with the power to dismiss congressional will – it’s called the veto power. (Of the last ten presidents, the five Republicans have hit the veto button twice as often as the five Democrats, says Wikipedia.) And since the founders thought it prudent to empower the president to tell congress to shove it, isn’t it a bit of an overreaction to even ask if the sky is falling because the president has used constitutional authority to fill a vacuum where congress has been absent?

Perhaps you’re thinking “What does he mean ‘congress has been absent?’” After all, the president is proposing to waive the application of existing law for certain classes of non-citizens. But if the president’s constitutional obligation to “take care that the laws be faithfully executed” means he must enforce every violation of every law congress passes, we’d all be in jail! (Check this out, just for fun).

The Heritage Guide to the Constitution says this about the “take care” clause:

To be sure, the extent of the faithful-execution duty is rather unclear. Plainly, the President need not enforce every law to its fullest extent. Common sense suggests that the President may enjoy some discretion in order to gauge the costs and benefits of investigation, apprehension, and prosecution.

There are at least a couple of reasons the institution of prosecutorial discretion is well established in U.S. jurisprudence. One is that the law can be a blunt instrument, so we’ve always accepted the role of human discretion in the delivery of justice. (Yes, that same prosecutorial discretion has been applied discriminatorily, but that’s a flaw that law has rightly attempted to deal with discretely, rather than through a baby-out-with-bathwater approach).

Secondly, I don’t recall a groundswell of angst about the “sub-constitutional” order when Presidents Reagan and Bush, and for that matter, every U.S. president in the last half century granted limited relief from enforcement of immigration law to one or more groups by executive action.

Finally, let’s turn the spotlight back on congress. A responsible legislative branch recognizes that laws don’t enforce themselves. Then why is there such a huge gap between the inventory of laws and the infrastructure/resources required to enforce them? Perhaps because lawmakers expect the exercise of executive discretion. And perhaps because a lot of lawmaking is really about posturing rather than governing. (My favorite example is the Office of Foreign Assets Control’s enforcement of the Trading with the Enemy Act/Cuba travel embargo, for which alleged violators are entitled to a hearing, except that no one bothered to create a mechanism for hearings. Ask for a hearing and the case is dismissed. Have you seen the outrage at this hypocrisy? Neither have I.) So if congress is serious about deporting every illegal alien, then let it find and appropriate funds for that gargantuan task, as well as for jailing or fining every druggie, fraudster, tax cheat and every trader with the enemy in Havana. Only then should we hear complaints about how congressional will is being thwarted. Until then, the executive not only may, but must find principled ways of deciding what laws to enforce, and against whom.

There’s another element of the drama that Jack fails to address: we’re already in something of a constitutional crisis and it is of congress’s making. Never before had I heard leaders of the opposition party admit that their strategy is to make it impossible for the president to govern. And they’ve been pretty effective at it, albeit due in part to the present White House occupant’s acquiescence. That’s not merely “subverting the sub-constitutional order,” it’s more like a middle finger to the constitution and the national interest, however defined. In isolation, the president’s unilateral action on immigration could be seen as impolite and impolitic. But can we really say that these are not times that try America’s soul?

So what course of executive action is more harmful to the constitution and the republic? That which is legal but impolite and perhaps sets an uncomfortable “sub-constitutional” precedent? Or doing nothing while congress allows Rome to burn for political profit?

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

Professor Beth Stephens was a pioneer in thinking about corporate accountability under the Alien Tort Statute (ATS), and a guiding light for all those emerging into a scholarly field that seemed strangely tolerant of a world without accountability in the corporate realm. When economists and political scientists problematized accountability as too costly or controversial, hers was the authoritative voice reminding us that a world without accountability is perverse. Thus, it is a great honor for me that she agreed to criticize my recent contribution to our common attempt at promoting accountability where there is usually (almost) none.

To begin, I fear that Stephens may have misunderstood my central claim, for which I should take some responsibility. At different points, I get the impression that my article registered with her as a full-throated attack on the ATS and all those who worked so hard to develop it, as if I believed that the entire history of the Statute amounts to little more than a misguided blunder next to the flawless system of corporate criminal accountability for international crimes that was always waiting in plain sight to be deployed. This is far from my position, so I begin by clarifying this misunderstanding in case it has tainted her view of my argument, before addressing some of her more substantive concerns.

I am very much for the ATS, before and after Kiobel. My project is purely comparative. At the beginning of my article, I confirm as much by stating “I prefer to isolate the upsides of corporate criminal liability for international crimes relative to ATS litigation, in the hope of identifying a form of accountability that will operate in a more cohesive and principled fashion with the ATS and other mechanisms moving forward. This, in other words, is a comparison not critique of the ATS, which I view as hugely important.” Although I gesture at this position once or twice later, I suspect that I needed to weave the point into much more of my argument to avoid being misunderstood by my kin.

If my piece gives the impression that I view my ATS friends and colleagues as “short-sighted” in a pejorative sense, this is an unwelcome outcome I attempted to guard against in my drafting. In writing the paper, I was careful to insist that ATS scholars and practitioners “understandably” left out ideas that emanate from the criminal law. My recurrent use of the word “understandably” was intended to recognize that there was never any obvious reason that even the most brilliant experts in ATS would also be familiar with the intricacies of, say, the German theory of aiding and abetting. How could they know? If these issues bubble to the surface of these discussions now, it’s only because German theory has permeated ICL in ways that are largely unthinkable for American civil litigation. No one can see around corners.

There is a deeper insight in this history that is so crucial for questions about corporate responsibility moving forward. David Kennedy is right that we all unavoidably have our intellectual blindspots. To deal with my own, I have tried hard within the article to call repeatedly for alternative, contradictory, interdisciplinary perspectives as part of my wider campaign for greater scholarly investment in these hugely important global questions. At the same time, I have also actively sought out the frank criticism of the world’s leading scholars (in slightly different fields) who see these things differently, as this series of blogs attests. I don’t believe that any meaningful attempt at regulating something as colossal as global commerce can afford to do otherwise—there’s too much our individual disciplinary biases blind us to.

Next, Stephens argues that the “discovery” metaphor I employ to describe the recent debut of corporate criminal liability for international crimes in practice unjustifiably leaves out the valuable work of organizations like the International Commission of Jurists and the International Corporate Accountability Roundtable on these questions, but I very much see them as part of the discovery not separate from it. Continue Reading…

[Beth Stephens is a Professor at Rutgers Law.]

Two cheers for James Stewart and his forthcoming article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. Stewart offers an enthusiastic endorsement of what could be an extremely effective mechanism to hold corporations accountable for egregious human rights abuses: domestic criminal prosecutions in their home states. Stewart’s comparative analysis of the Alien Tort Statute (ATS) is less sure-footed, however, and, for that failing, I withhold my third cheer.

Stewart ranges wide through criminal law theory and practice to defend the viability and desirability of domestic criminal prosecutions for international law crimes. He explains that many states already have the domestic statutes necessary to authorize criminal prosecution of domestic corporations for international law violations such as war crimes and crimes against humanity committed in other states. This statutory foundation, along with the focus on prosecuting domestic corporations, should mitigate concerns about extraterritoriality such as those that have arisen in both civil claims under the Alien Tort Statute and universal jurisdiction prosecutions against natural persons. Criminal prosecutions, he explains, also tap into a rich set of liability standards that are potentially well-suited to the complex interactions of a corporation and its employees.

Stewart correctly identifies some of the weaknesses of ATS litigation and the commentary it triggered. But many of those weaknesses result from applying an idiosyncratic eighteenth century statute to modern human rights abuses. For example, Stewart decries a rather unproductive dispute over the content of the international law standards governing aiding and abetting. He does not acknowledge, however, that the debate was triggered by the sui generis structure of the ATS, which grants jurisdiction over violations of international law, but provides no guidance as to a host of crucial issues, including the appropriate standards of liability. Moreover, commentators and some judges suggested applying a flexible federal common law liability standard to ATS cases, which might have resembled the analysis he favors. Many courts rejected that approach, however, leading to the narrow debate over the meaning of knowledge and purpose in international law. The “vociferous interest in complicity” that Stewart decries [24] was a product of the minimalist structure of the ATS and judicial decisions that further limited the range of possibilities, not lack of interest in or ignorance of alternative liability approaches.

Crucially, similar statutory gaps and judicial bottlenecks are likely to arise in domestic criminal prosecutions, as each legal system applies its particular statutes, procedural rules, and theories of liability. These problems, of course, are consequences of a domestic law response to human rights abuses. But, having failed to recognize the impact of its domestic law origins on the trajectory of the ATS, Stewart also fails to grapple with the likely impact of idiosyncratic domestic law variations on the local criminal prosecutions that he favors. Continue Reading…

London-area readers interested in the ICC and Palestine might want to attend the following event, which is co-sponsored by Chatham House and Doughty Street Chambers (where I’m an academic member). It should be good, despite my participation:

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

Steven Ratner enjoys the unequalled distinction of being one of the world’s leading scholars in both international criminal justice and the theory of corporate responsibility for human rights violations. As such, it is a great privilege to engage with his criticisms of my recent paper. Ratner offers three core criticisms of my article, protesting that corporate criminality is not quite the promising terrain I posit. To my reading, the first of these criticisms amalgamates an array of shorter points that I treat briefly given space constraints, whereas the latter two deal more with retribution as a basis for corporate accountability and the limits of ICL as a vehicle for ensuring accountability in the field of business and human rights. I deal with each of these three sets of thoughtful criticisms in turn.

Ratner’s first category raises a cluster of shorter objections. In the interests of space, I respond to several briefly here in bullet form, without I hope seeming dismissive of important questions that require far greater discussion than I can deliver presently:

• Ratner suggests that my article is a “response to the demise of the ATS vehicle.” Actually, this research spans eight years and would still hold true if the US Supreme Court had reached the diametrically opposite conclusion in Kiobel. Mostly, it is a reply to the experience of investigating atrocities in Africa, not a response to the demise of the ATS at all.
• Ratner argues that “ICL is not an alternative to the ATS” and Kiobel does “not call for switching to criminal liability.” I agree. I do not argue for “switching,” but place a great deal of emphasis on thinking of ICL as part of a very wide set of regulatory initiatives and projects. I compare ICL and ATS to dispel the assumption that the two frameworks will have the same problems.
• Ratner suggests that I think “conceptual problems in the ATS caselaw somehow doom civil liability.” This is not my view. I am careful to insist that “nothing here is an attack on the ATS as such—I view it as an important form of accountability—I merely join others in positing that it frequently needs supplementing with something stronger.”
• Ratner argues “why assume states will pass criminal statutes (even covering obvious international crimes) covering conduct of their companies abroad”. Mostly, this horse has already bolted. As the paper shows, most states have already passed this legislation. In this sense, corporate criminal liability for international crimes mimics the ATS—both involve the “discovery” of a latent legal framework waiting to be employed;
• Ratner argues that “it is not clear how switching to the ICL model eliminates… the very problem that Kiobel addressed. i.e., the extraterritorial reach of domestic law.” Although I acknowledge not addressing extraterritoriality in depth in my introduction, I do cite evidence from a comparative survey which concluded that 11 of 16 states surveyed have jurisdiction over international crimes perpetrated by their nationals overseas.
• Ratner also objects that “if we think… diversity of criminal law accomplice liability standards is suboptimal, then states will need to incorporate not merely the definitions of crimes in international law into their domestic law, but also an international notion of accomplice liability.” I address this question in this paper under the sub-heading Toward a Moral Theory of Accomplice Liability, and within a separate piece recently on pluralism in international criminal law.

In his second set of criticisms, Continue Reading…

[Steven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.]

James Stewart’s “The Turn to Corporate Criminal Liability for International Crimes” provides an important contribution in the ongoing debates regarding corporate accountability for human rights violations, a debate that has assumed even greater prominence since the publication of the UN’s Guiding Principles and an ongoing process of discussions within the UN on new strategies for businesses to respect human rights. Stewart makes three compelling points with which I think most observers of the topic would agree. First, many human rights advocates and scholars have had far too much faith in the ATS as a vehicle for accountability, leading to undue disappointment in its limited scope after Kiobel. Second, the ATS jurisprudence was marred by doctrinal confusion, the straitjacket of identifying norms as customary international law, and concerns that courts were acting at odds with legislative and executive branch policy. Third, international criminal law (ICL) offers a potentially useful tool for corporate accountability in overcoming some of the difficulties of the ATS. The acceptance of corporate criminality in many states offers a domestic law mechanism for trying corporations.

Despite my agreement with the thrust of the piece and the need to tackle what has remained a marginal method of corporate accountability, I think corporate criminality is not quite the promising terrain for corporate accountability that Stewart’s analysis suggests, for three different reasons.

Ÿ First, the link between the ATS and ICL that dominates the piece (e.g., calling them “brother[s]-in-arms”) — and thus views ICL as a response to the demise of the ATS vehicle – seems somewhat strained. The ATS was and remains a uniquely American statute – there is none other like it in the world – and despite great faith in it by some, my sense is that sophisticated human rights advocates never saw it as the major forum for even judicial accountability of corporations. ICL is not an alternative to the ATS; it is an alternative to other forms of corporate responsibility, including civil responsibility, loss of reputation, and other ways that corporations can be held to account for any human rights violations. The post-Kiobel constraints on the ATS, and the conceptual confusion before Kiobel, thus do not themselves call for switching to criminal liability. Most obviously, civil liability may be viable in other venues, as seen in the other lawsuit against Shell, in the Dutch courts.

Moreover, even if we think the conceptual problems in the ATS caselaw somehow doom civil liability, it is not clear how switching to the ICL model eliminates one serious problem with all efforts by home states to regulate corporations through national law — the very problem that Kiobel addressed, i.e., the extraterritorial reach of domestic law. While international crimes are subject to universal jurisdiction, universal jurisdiction is still only permissive and not mandatory. The duty, if there is one, for states to punish all international crimes (e.g., as suggested in the preamble to the ICC Statute) is a very weak one; the only clear duties are those in specific treaties like the Torture or Disappearances Conventions. So why assume that states will pass criminal statutes (even covering obvious international crimes) covering conduct by their companies abroad, let alone that they will criminalize conduct by foreign companies against foreigners abroad? Though certainly states have interests in regulating much overseas corporate conduct (making the Kiobel majority’s presumption completely antiquated), they still have many reasons not to criminalize extraterritorial human rights abuses, either by individuals and corporations. True, states have shown the political will to criminalize some corporate conduct abroad through the UN Corruption Convention, but that took thirty years of American pressure, dictated by a commercially driven desire to level the playing field.

It is also not clear how the move to ICL eliminates one of the other problems that Stewart thoughtfully identifies regarding the ATS caselaw – the muddied notion of accomplice liability. Although domestic criminal laws define degrees of complicity, they vary significantly throughout the world. That is not a problem if we are content with a corporate criminality regime that tolerates significant diversity across states, but in that case, why not just rely on diverse notions of civil or even administrative liability around the world? If, on the other hand, we think such diversity of criminal law accomplice liability standards is suboptimal, then states will need to incorporate not merely the definitions of crimes in international law into their domestic law, but also an international notion of accomplice liability. Continue Reading…

I only recently learned about an effort by U.S. anti-corruption crusaders to win support for an “International Anti-Corruption Court” modeled on the International Criminal Court. US judge Mark Wolf from Massachusetts is spearheading this idea, especially with this article here, and a briefing was even held recently on Capitol Hill on the idea and the UN Human Rights Commissioner seems interested.  This is troubling since I presume these folks have other things to do and this whole IACC idea seems like a colossal waste of time.

I don’t disagree with Judge Wolf that corruption is a huge problem, and that it needs to be punished.  But I am baffled as to why he thinks creating an international court modeled on the ICC is a useful way to proceed.

Any justification of an International Anti-Corruption Court is almost certainly based on the idea that an IACC could more credibly deter corruption among government officials than national laws could on their own. As a theoretical matter, I suppose that is possible.

But, as the ICC has discovered, acquiring custody of government officials whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard.  Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants.  Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much.

I just don’t see any reason to think an IACC system would work better. Indeed, it would probably deter far less since it will also be overwhelmed with complaints (everyone thinks their local government guy is corrupt).  There is also various tricky questions of sovereign immunity, which seem more plausibly waiveable for serious international crimes than for even high-level corruption.

So my message to Judge Wolf:  The world doesn’t need another high-profile well-intended but largely ineffectual international court. We have plenty of those already, thank you.

Internationalists critical of U.S. “sovereigntism” almost always point out that the U.S. is one of only three states in the world that has not ratified the U.N. Convention on the Rights of the Child (CRC).  Karen Attiah is the latest to take up this old talking point in the Washington Post.

The United States is part of an elite trio of non-ratifiers, along with Somalia, a country that is virtually in anarchy and consistently appears in the lowest ranks of countries in terms of human development, and South Sudan, the world’s newest country, which dealt with a fair share of civil conflict. Back in 2008, Obama said that it was “embarrassing to find ourselves in the company of Somalia, a lawless land.”

Attiah argues that the rest of world seems to be making lots of progress in improving child welfare, presumably because of the CRC, and the U.S. is falling behind. But this argument buries the lede.  Why?

Because even if the U.S. accedes to the CRC, it is almost certainly going to do so without passing new legislation or enacting new programs to live up to the treaty’s obligations. As it has done with other human rights treaties it has ratified, the U.S. will also declare the CRC non-self-executing, which means it cannot be enforced by US courts absent subsequent legislation by Congress or the States.  It is highly unlikely that US law or policy will be affected dramatically by joining the CRC if these limitations are imposed.

Rather, the argument for joining the CRC is usually not about changing US policy, but simply about the need for the US to be a member in order to credibly promote and support CRC rights and the interest of children around the world.  As an analyst from Human Rights Watch notes in the Economist, “It is awkward when the US tries to promote child rights in other countries—they all remind us that they’ve joined the treaty and we have not.”

If the data Attiah cites is accurate, though, US non-ratification isn’t having much of an impact on whatever benefits the CRC is providing.  Of course, it may be the case that US non-ratification is limiting whatever additional benefits US promotion of the CRC as a member would provide, but this seems unlikely.

Of course, if the CRC is unlikely to change US law or policy, why should anyone oppose it? This is indeed a mystery. The best case I can come up with is that CRC opponents do not trust the Congress, the President, or the courts to honor the non-self-executing pledge that the US has imposed on all other human rights treaties.  This is not totally unreasonable since some leading scholars have questioned the non-self-execution doctrine in this case.   But US courts have not yet shown any interest in forcing human rights treaties into US law against the wishes of the president and Senate, so this fear is somewhat overstated at this stage.

In the end of the day, Attiah’s reporting answers her own headline-question.  The US hasn’t ratified the CRC because doing so would not change the status quo much, if at all.  US policies domestically will be basically the same with or without the treaty, and (as Attiah points out) the rest of the world will do just fine whether or not the US joins.  So US ratification will accomplish pretty much nothing, which is as good a reason as any for why it is not going to happen.

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

We occupy a curious point in history. Despite an understanding that corporations enabled slavery, were at the vanguard of colonialism, either fuelled or instigated the Second World War, and now provide key inputs to modern atrocities of all stripes, there is very nearly zero accountability for corporate violations of basic human rights norms. What a pleasure, then, to have Samuel Moyn critically reflect on this sorry state of affairs we have inherited and whether corporate criminal liability for international crimes will mark an important departure from everything that came before or merely a new mechanism for distracting our gaze from the obvious structural misalignments that inhibit human dignity most acutely.

I find Moyn’s assertion that our ancestors were more ambitious that us an attractive one. In the same breath, I often muse with students how significant it is that we live during the initial years of a permanent international criminal court, itself an unspeakably ambitious project. In 1872, Gustave Moynier, the Swiss jurist and founder of the International Committee of the Red Cross proposed an international institution of precisely this sort, which was later revisited in the Paris Peace Conference of 1919 and then the Genocide Convention of 1948. So, with respect to our ambitions for international criminal justice, we fare fairly well in a comparison with our ancestors. Moreover, for better or worse, we have definitely outstripped them in terms of execution.

Importantly, the rise of the international criminal justice we have brought about isn’t limited to international institutions; instead, it has seeped into national courts in a remarkable process of transnational acculturation. Quite suddenly, state legislatures found themselves implementing international crimes into their domestic criminal codes, national law enforcement agencies are creating specialist war crimes units with increasing frequency, and cases involving international crimes are arguably as numerous locally as they are internationally. This past summer, I even sat through the Blackwater trial in Washington D.C. (see initial commentary here), partly out of a sense that even the United States was slowly surrendering to the trend.

The question for present purposes is, will the march of international criminal justice halt at the doors of businesses or extend to and engulf the commercial sides of atrocity, too? Will WWII cases against “industrialists” (an archaic term that I think distances these historical precedents from contemporary realities) remain quaint relics of experimentalism in the immediate post war, or will they have some salience to the plain legal parallels with modern warfare, especially in Africa? Whatever the future holds in these respects, there’s no doubt that the past has much to still teach us.

On that score, Moyn’s recitation of the traditional history of corporations in Nazi Germany is disputable. In an outstanding new thesis, Grietje Baars argues that the standard narrative of “industrialists” as auxiliaries to Hitler’s expansionism gets the relationships backwards. “Industrialists,” according to Baars, either enjoyed ascendancy over Hitler or existed in a far more horizontal relationship with leaders of the Nazi Party than historians have let on. As the Nuremberg Judgment itself recounts, “In November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” (Nuremberg Judgment, p. 177). If accurate, this history helps highlight the limitations of focusing on complicity alone within the business and human rights discourse, and brings home the importance of thinking very seriously about our topic.

In his kind response to my article, Moyn rightly recognizes that I see ICL as supplementary to other regulatory strategies, including the Alien Tort Statute (ATS). He writes that “I agree with Stewart that it would be dubious, not to mention counterfactual, to suppose that a focus on atrocity (whether through criminal law or civil liability) somehow rules out bigger regulatory ambition.” Nonetheless, he sees two provisos, which I address now in turn.

Continue Reading…

[Samuel Moyn is professor of law and history at Harvard University. He is on Twitter at @peiresc.]

During the absorbing litigation that led to the death of Alien Tort Statute litigation a couple of years ago, one of the most fascinating moments occurred late, and it has not been mentioned since.

In the Second Circuit phase of Kiobel v. Royal Dutch Petroleum, Judge José Cabranes had contended that the International Military Tribunal at Nuremberg proved there was no norm in customary international law of corporate civil liability. If so, he had asked, how could he find for the plaintiffs? In response, a bevy of renowned historians filed an amicus brief on appeal to the United States Supreme Court, contending that the reason Judge Cabranes had failed to find civil liability was because the Allies had been willing to destroy the corporations that participated in Nazi evil. The greater included the lesser: if they could go that far, would they really have rejected civil liability for corporate atrocities? Then another group of historians, including Jonathan Bush, filed an amicus brief not so ardently focused on serving the human rights movement (though not opposing it either). No longer indentured to the instrumental if understandable project of reading the past for present ends, these historians revealed that our ancestors were more ambitious than we are.

In their treatment of corporations, Bush and his colleagues said, the Allies hadn’t really been interested in atrocities anyway, or merely aimed at the low bar of sanctioning them. Rather, Nuremberg lawyers had been New Dealers; they had thought a lot about corporations, especially in the antitrust context; and it was this thinking that motivated them to break up (not destroy) I.G. Farben and take the other steps they did. More generally, an attitude of politically organizing business properly to avoid aggressive war mostly prevailed, not atrocity consciousness for the sake of victims seeking compensation. It was one of those things that seemed self-evident as soon as the historians said it, even if the insight got lost in the shuffle of the litigation, with its necessarily opportunistic attitude toward the past. Yet the prospect that opened in the midst of the litigation wasn’t merely self-evident, it was exciting. In the old days, corporations were regulated in the name of a theory of the healthy role they could and must play in a democracy. They were not simply unbound — as they have been since the conservative legal movement set the terms of corporate law nationally and internationally — and then at most taxed after the fact when they went awry.

Granted, the corpse of ATS may twitch for a long time and – who knows? – may one day find itself resurrected under different political circumstances. It is to his great credit, however, that James G. Stewart has turned away from searching frantically for signs of life in the fallen statute, in order to explore other fruitful approaches. Anyway, how much good did the ATS do, even before it was cut down? (Full disclosure: I have been flamed on this blog simply for raising this question, as if the burden weren’t on advocates of the ATS strategy to prove how much difference it has made, and to consider it in relation to other possible political and legal strategies.)

I won’t comment much on Stewart’s alternative, corporate criminal liability, in part because his other respondents know a lot more about the details. His reading of the tea leaves of the Argor-Heraeus case seems speculative but impressive, and his assessment of the doctrinal possibilities of criminal liability relative to the ATS strategy is interesting. As Stewart points out, a civil liability strategy merely taxing corporations (especially when the tax is simply passed on to their consumers) looks insufficient if it doesn’t provide the social condemnation law secures through criminal opprobrium. Stewart might even be right that if we have to choose, the criminal strategy is normatively superior. Of course, in an ideal world, it would be better to have both, since a now potentially lost civil liability in theory should exist: victims may need and deserve the monetary compensation too. Continue Reading…

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

Africa

• Caught in a forgotten war between rebels and government forces and beset by bandits who roam the lawless roads, villagers in Darfur say their lives can scarcely get any worse if Sudan insists on international peacekeepers leaving their region.
• Transitional leaders in Burkina Faso have agreed on a new government to guide the country to elections next year, allocating several key cabinet posts to the military.
• The Somali Islamist militant group al Shabaab said it had staged an attack in Kenya on Saturday in which gunmen ordered non-Muslims off a bus and shot 28 dead, while sparing Muslim passengers.

Middle East and Northern Africa

• Iran and six world powers are expected to break off negotiations on Monday and meet again next month after missing a deadline to clinch a final deal to resolve their 12-year standoff over Tehran’s nuclear ambitions, diplomatic sources said.
• Iraqi forces have mounted their biggest operation since June, reclaiming two towns in the eastern province of Diyala from Islamic State of Iraq and the Levant (ISIL) fighters.
• Saudi authorities have stepped up their crackdown on online dissidents, Human Rights Watch said, alleging that prosecutors and judges use “vague law” to charge citizens for peaceful tweets and social media comments.
• Nearly 800 people have been rescued from boats in distress in the Mediterranean Sea in the last 48 hours, Italian and Libyan officials said.
• U.S. Vice President Joe Biden said he and Turkish President Tayyip Erdogan he had discussed a transition of power in Syria away from President Bashar al-Assad during a four-hour meeting in Istanbul on Saturday.

Asia

• Chinese authorities in the northern region of Inner Mongolia arrested 31 people on suspicion of trafficking women because they had held 14 people, 11 of them from Myanmar, state media said on Monday.
• North Korea’s top military body has warned of “catastrophic consequences” for supporters of the latest United Nations censure on its human rights record, as state media reported leader Kim Jong-Un presided over fresh military drills.
• India on Monday named its powerful national security adviser as a special envoy on China, opening the way for resumption of talks on the disputed border, where tensions have risen in recent months over border patrols and stiffer defenses.
• China on Monday hit back at “irresponsible remarks” from the United States which has called on Beijing to stop a land reclamation project in the disputed South China Sea that could be large enough to accommodate an airstrip.
• A former leader of Bangladesh’s ruling party was sentenced to death by a war crimes tribunal on Monday in connection with atrocities committed during the country’s war of independence from Pakistan.
• A Philippine court on Monday fined nine Chinese fishermen $102,000 each after they were caught with hundreds of sea turtles in a disputed shoal in the South China Sea amid a festering territorial standoff between the two sides.

Europe

• Britain is facing the biggest terrorism threat in its history and has foiled around 40 major plots since suicide bombers attacked London in 2005, Home Secretary Theresa May said on Monday.
• Lower oil prices and Western financial sanctions imposed over the Ukraine crisis will cost Russia around $130-140 billion a year – equivalent to around 7 percent of its economy – Finance Minister Anton Siluanov said on Monday.
• The United States will keep troops in Poland and the Baltic states for at least the next year as tensions with Russia remain, the commander of U.S. land forces in Europe said on Sunday.
• A week-long operation to clear the wreckage from the crash site of Malaysia Airlines flight MH17 in Ukraine has been completed, according to the Dutch government.
• The number of Germans fighting alongside Islamic State militants in Syria and Iraq has increased sharply to 550 and around 180 have returned, the head of Germany’s domestic intelligence said in a newspaper interview published on Sunday.

Americas

• The United States wants to step up its trade dialogue with India, Trade Representative Michael Froman said on Monday, after the resolution of a global trade dispute paved the way for President Barack Obama to visit India.
• Mexico said on Sunday it was summoning Uruguay’s ambassador after Uruguayan President Jose Mujica said that the disappearance of 43 students in southwest Mexico suggests the country is a failed state.
• A group of 15 Cuban migrants waved to onlookers as they set sail from Grand Cayman aboard a 14-foot homemade boat on Friday after a brief overnight stop, hoping to make the risky 400-mile journey across the Caribbean to the north coast of Honduras.

UN/World

• A Russian Soyuz rocket blasted off from the Baikonur Cosmodrome in Kazahkstan on Sunday to deliver three new crew members to the International Space Station, including Italy’s first female astronaut.

This week we will host a mini-symposium on James G. Stewart’s latest article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. James has been an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia, where he as been since 2009. Previously he was an Associate-in-Law at Columbia Law School in New York. He has also been an Appeals Counsel with the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia and has also worked for the Legal Division of the International Committee of the Red Cross and the Office of the Prosecutor of the International Criminal Tribunal for Rwanda. James primarily works on the relationship between atrocity, commerce, and international criminal justice and has published extensively on these subjects.

Between today and Wednesday, Samuel Moyn (Harvard University), Steven Ratner (University of Michigan) and Beth Stephens (Rutgers) will comment on the article article and the author will respond.

It is our pleasure to welcome these scholars to Opinio Juris this week and we look forward to thoughtful comments and questions from our readership as well.

I was quoted in the NY Times on Friday on Obama’s executive action on immigration to the effect that it is unprecedented in scale and formality. I’ll stick to that position, but that doesn’t mean that I think that the executive action is unconstitutional. Just a few thoughts to clear that up (especially since David Brooks used the quote on NPR to support his position against the action).

The action may be unprecedented, but not in a discontinuous way. The media is full of discussions of prior “deferred action” programs, most of them involving global hot spots. Immigration enforcement has always been severely underfunded, which has demanded systematic identification of enforcement priorities. Once a matter of internal administrative guidance, since John Lennon forced transparency in the early 1970s these priorities have been a matter of public record.

But there’s never been anything like this in terms of numbers. More important, no president has undertaken this kind of program in the face of this kind of opposition. No other president appears to have used executive action to break a legislative logjam.

Consider the “Family Fairness” program undertaken by the George H.W. Bush administration in February 1990 to protect spouses and children of those whose status was regularized under the landmark 1986 legislation, a precedent that got a lot of play last week. The action affected a large number (as many as 1.5 million). It also involved work authorization. But the action appears to have been utterly uncontroversial. The action was announced by the commissioner of the INS, not the White House. The NY Times item reporting the action (published on page 28) did not so much as mention George Bush much less any opposition to the move. Subsequent legislative validation was hardly reported at all (it was part of a package that increased annual legal immigration quotas). In short, the Bush administration move was uncontested. (UPDATE: The Washington Post debunks the 1.5 million figure here. It was probably under 100,000, which helps explain the absence of controversy.)

That makes it a pretty weak precedent. The Obama action, to say the least, is being vigorously contested. It doesn’t mean Obama’s action is unconstitutional. It means that the Obama action is provisional. It could be overcome.

The courts will stay away. It’s not clear who would have standing to challenge the action. Even if a court got to the merits, there is recent precedent (the 2012 decision in Arizona v. United States) clearly inscribing the president’s prosecutorial discretion over immigration enforcement.

Congress will have to carry its own water in overcoming the Obama move, with assists from other elites and the public at large. I’m not sure what it would take beyond an improbable defunding. We may see non-binding “sense of” resolutions decrying the action in constitutional terms. Those would count for something as formal institutional pronouncements.

The ultimate test may be whether Congress eventually comes on board and fully regularizes the status of beneficiaries of the executive action. No Republican president is going to reverse the action and start deporting these sympathetic people. But that doesn’t mean Congress will adopt Obama’s action as a matter of law. Listen for those (like David Brooks) who favor real immigration reform but oppose the Obama move. That’s the control group on the constitutional issue.

Meanwhile, immigrants covered by the executive action are definitely better off for it. But their status will still be second-class. The government will discriminate against them on benefits like health care, and of course they won’t have the vote. Their ultimate status may depend on whether Obama’s constitutional gambit is a successful one, and everybody falls into line with it.

Events

• italyspractice.info is a website aimed at collecting, categorising and translating into English the practice of the Italian government on issues of international law. Only five months after its appearance, it has registered approximately 7,000 views from all over the world and gathered more than 560 followers. The authors of italyspractice.info firmly believe in this project and their purpose is to develop it further. Thus, they are now organising a conference that will take place in Trento on 27 November 2014, to make their work known, discuss some of its preliminary outcomes and announce its planned expansion. The main goal is twofold: on the one side, to give an account of recent Italian practice on international law by illustrating and commenting upon a number of cases related to Italy’s foreign policy; on the other – and most importantly – to place this practice in the wider context of the role and nature of custom, situating the website in the framework of the ongoing theoretical debate with the help of three well-known experts of customary law and other international guest speakers. The flyer with the full programme of the conference may be downloaded here (.pdf).

Calls for papers

• Despite the deep infiltrations of international law in the material world around us,
  the relationship between international law and physical objects has not preoccupied international lawyers or international law scholars. By considering international law through a new lens – that of its objects, symbols and images – this project will provide a new way of thinking about international law in terms of its material and visual culture, interrogating the relationship between material objects and objects as purposes.  We invite you to select one image or object, which in your view best represents your area of expertise in international law, or international law as a whole, and to write about its significance in international law.  For more information, please see the call for papers.
• The 4^th annual conference of the Cambridge Journal of International and Comparative Law (CJICL) will be held at the University of Cambridge on 8 and 9 May 2015. The conference theme is Developing Democracy: Conversations on Democratic Governance in International, European and Comparative Law. Conference highlights include a keynote address by Dame Rosalyn Higgins, DBE, QC, former President of the International Court of Justice. More information can be found 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 with a one-paragraph description of your announcement along with hyperlinks to more information. 

Over the past week on Opinio Juris, we again enjoyed a lot of different perspectives from our guest bloggers, beginning with Rob Howse, whom Kristen introduced as this week’s featured guest blogger. He highlighted the return of neo-conservativism in Washington, reminded us of Alexandre Kojève’s being a neglected figure in the history of international law and also discussed the breakthrough at recent WTO talks and the trade facilitation agreement this week. He also posted on Liam Murphy’s book What Makes International Law Law?

Additionally, we heard from S. I. Strong announcing that the preliminary results from a recent empirical study on international commercial mediation and conciliation are now available.

Nicolás Carrillo-Santarelli talked about the most recent events in Colombia with the negotiations between the government and FARC rebels being suspended due to the and the kidnapping under IHL, including discussion around the illegality of deprivations of liberty, which sparked quite an intellectual debate in the comments.

A post also came in from Andrea Pin on the Italian Constitutional Court, the International Court of Justice and German war crimes. Duncan French and Jean d’Aspremont co-blogged on the ILC project on the identification of customary international law in summary of the two-day expert level seminar hosted by Lincoln Law School and the Manchester International Law Center.

Roger wrote up his analysis on the Ninth Circuit’s muddled comity analysis in Mujica v. Airscan while Kevin worked out some of his thoughts on the baffling Comoros decision and introduced a new videogame challenging the player to survive as long as possible as a civilian in a war-torn fictional city. Additionally, he introduced and congratulated the newly minted Dr. Mark Kersten.

Finally, I wrapped up the news and listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

Last week the Ninth Circuit issued a controversial opinion in Mujica v. Airscan, Inc., that sharply limits the scope of human rights litigation. The claims in Mujica arose in Colombia and allegedly implicate corporate collusion with the Colombian military. Following Kiobel the common consensus was that Alien Tort Statute litigation would be severely curtailed based on the presumption against extraterritoriality. Not surprisingly, the Ninth Circuit rejected the Plaintiffs’ claims, finding that where the only connection to the United States was the Defendants’ nationality, the claims do not “touch and concern” the territory of the United States with sufficient force to displace the presumption against extraterritorial application.

What is extremely surprising is that the court dismissed the state law claims. Because the court was not exercising supplemental jurisdiction over the state law claims, it could not simply dismiss them without prejudice to be filed in state court. As with almost every other common law tort claim brought in federal district court based on diversity jurisdiction, I fully expected the Ninth Circuit in Mujica to apply California choice of law principles to resolve the claim. (For a detailed analysis of choice of law in the human rights context, see my article here).

As set forth by the California Supreme Court in Kearney, California’s comparative impairment analysis considers whether there is a true conflict between the affected states and applies “the law of the state whose interest would be the more impaired if its law were not applied.” California courts generally favor forum law when (1) the forum has an interest in the dispute and the laws of other affected jurisdictions are not different or (2) when the laws are different and the interests of the forum would be more impaired than the interests of the other jurisdiction. Otherwise they apply foreign law. Applying California choice of law, the Ninth Circuit exercising diversity jurisdiction ordinarily would retain jurisdiction of the state law claims and resolve them under Colombian law (as the government with the greatest interests at stake). The whole purpose of Brainerd Currie’s government interest approach (adopted by the California courts) is to exercise jurisdiction in a manner consistent with the legitimate government interests of the relevant stakeholders.

That is not what the court in Mujica did. Instead it relied on a novel prudential comity analysis to dismiss the claims. It first distinguished between prescriptive and adjudicatory comity, and concluded that Hartford Fire’s “true conflict” approach was inapplicable. Fair enough. But then it applied the comity factors enunciated in Restatement Section 403, which also applies to prescriptive comity. So the “true conflict” approach in Hartford Fire does not apply because that is relevant only for prescriptive jurisdiction, but the limitations on prescriptive jurisdiction in Section 403 do apply in balancing factors under adjudicatory comity. Very strange.

With due credit to my conversations with Trey Childress and Bill Dodge yesterday, if the court was going to invoke adjudicatory comity, it should have relied on the Supreme Court’s decision in Colorado River and appellate court decisions such as Royal and Sun Alliance, Ungaro-Benages, and AAR International. Indeed, the Ninth Circuit’s decision in Neuchatel Swiss General specifically addressed adjudicatory comity and held that courts should not dismiss on the basis of adjudicatory comity except in “exceptional circumstances.” Those cases strongly suggest that adjudicatory comity applies only in exceptional circumstances and only when there is a pending foreign proceeding. The Ninth Circuit in Mujica completely ignored binding Supreme Court and Ninth Circuit precedents.

So what the court should have done in a case of diversity jurisdiction with significant foreign contacts is apply California’s choice of law principles to resolve the common law claims. That almost certainly would have resulted in the application of Colombian law, especially Title XXXIV of the Colombian Civil Code. (The Court could not dismiss the case based on forum non conveniens because the district court already determined that there was not an adequate alternative forum, and that question was not on appeal.) With no other avenues for dismissal, the Ninth Circuit dismissed the claims on the basis of a muddled application of adjudicatory comity, leaving the plaintiffs with no obvious means of redress anywhere.

I have written at length about the rise of transnational tort litigation and the application of choice-of-law principles as the logical response to Kiobel. The Ninth Circuit’s decision in Mujica seems to suggest that that approach is perfectly fine for the typical wrongful death claim involving foreign contacts or parties. But if it is a human rights claim dressed up in the guise of a wrongful death claim, then at least two members of the Ninth Circuit will bend over backwards to dismiss it.

I would be quite surprised if this case is not reconsidered by the Ninth Circuit en banc.

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here; his second, here and his third here.]

Today at NYU law we are having a panel discussion, and celebration, of my colleague Liam Murphy’s recent book, What Makes Law Law? (I’ll be racing down from Fordham University, where I’m talking about my own book, Leo Strauss Man of Peace). Liam’s work is important for international legal scholars, because-despite many good answers-the field has been haunted by crude positivist doubts as to whether international law is really law at all, or, if it is, its character as legality really matters to real world outcomes (as opposed to its sometimes asserted nature as political rhetoric or moralizing). Usually, the doubts related to enforcement-can international law really make a state, or indeed anyone, do something that they don’t want, or need, to do for other reasons?

It is revealing, and perhaps provocative statement in relation to those crude positivist views, that the chapter of Liam’s book that bears the title of the book is in fact a discussion of “law beyond the state”. Liam begins from the much neglected short chapter on international law in Hart’s The Concept of Law, where Hart actually uses international law as an example for the proposition that centralized enforcement and interpretation are not essential elements of a legal system. What is essential is a certain level of systemic integration and coherence, and here Liam faces head on the so-called “fragmentation” of international law. He writes: “At the normative level, the question is whether there remains a coherent overall normative structure to international law that can accommodate “the diversification and expansion” of international law and provide legal grounds to resolve conflicts.” At the risk of some oversimplification, and skipping the rich texture of the analysis, in short, Liam’s answer is: maybe. He points, for instance, to the systemic integration function of the rules in the Vienna Convention on the Law of Treaties. I would add that both the activity of the ILC as well, at a more basic level, the articulation of the sources of international law in Article 38 of ICJ Statute, perform such a function. Liam cites some of my work with Ruti Teitel on these issues (“Beyond Compliance”). In another piece, “Cross-Judging“, Ruti and I try to show how different tribunals in different fields of international law increasingly speak to each other, directly or indirectly, disagreeing sometimes, but presupposing common ground about what is an international legal argument or what counts as international legal discourse. Indeed, even if one goes back to Thucydides, it is fairly clear there to the relevant actors, ambassadors, generals etc. where an international legal argument is being made vs a general moral argument or a power-political claim, or appeal to interests.

As for enforcement, Liam rightly notes that the issue is not the actual level of enforcement, but whether the norms of international law are the kind of norms that one thinks can justifycoercion, or are appropriate for coercive sanctions. This is Kant’s point in distinguishing the realm of “right” from that of “virtue”. This is an important distinction, and it is crucial to be clear on it, as the skeptical scholarship of theorists like Posner and Goldsmith tends to obscure it. Since we can never know whether an individual, much less a collective such as a state, is acting purely from considerations of legality alone (again Kant), it is absurd to test whether international law is law, by asking for proof that international legality has caused a state to behave in a manner that it would not have behaved in, from other considerations or motives. This is the kind of test that international law skeptics like, because international legality is bound to fail it. But that’s the case for all legal norms.

Not just the chapter on law beyond the state but the book as a whole is a commendable read for international jurists.

[S.I. Strong is Associate Professor of Law and Senior Fellow, Center for the Study of Dispute Resolution at the University of Missouri.]

I wanted to let you know that the preliminary results from a recent empirical study on international commercial mediation and conciliation are now available.  The study, which is entitled “Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation,” collected detailed data on 34 different questions from 221 respondents from all over the world. Survey participants included private practitioners, neutrals, in-house counsel, government lawyers, academics and judges with expertise in both domestic and international proceedings.

This information was gathered to assist UNCITRAL and UNCITRAL Working Group II (Arbitration and Conciliation) as they consider a proposal from the Government of the United States regarding a possible convention in this area of law. The U.S. proposal will be considered in depth at the Working Group II meeting in February 2015.

Those who would like to see a copy of the preliminary report can download a free copy here.  The data will be further analyzed in the coming months and published sometime next year as an article.

Many thanks to those from Opinio Juris who participated in the survey and who helped distribute it among their networks.  If you have any questions about the preliminary report, please feel free to let me know at strongsi [at] missouri [dot] edu.

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here and his second, here.]

At International Economic Law and Policy Blog, where I’m a regular, I’ve been blogging for a while about the impasse in WTO Doha round negotiations and how to break through it. See here and here.  India has learned from the way developed countries operated in the previous Uruguay Round of negotiations, linking different issue areas or agreements, so for example rich nations could get developing countries to agree to TRIPs (intellectual property rules), on the basis that they had to do it to get something on agriculture, etc.  So, in this round, the Indians have insisted that implementing trade facilitation (mostly a developed country demand) depends on protection against WTO challenge for food security programs like India’s food subsidies for its poor.

With a bilateral deal between India and the US last week on food security, there is now the opportunity to move forward to complete the package negotiated in December 2013 at the Bali WTO Ministerial, and then, beyond that, to strike further deals that make the WTO as a negotiating forum relevant to the issues of today and tomorrow.  Reflecting the diversity of the WTO’s membership, some of these accords will be plurilateral, not binding all Members, but rather in the manner of “coalitions of the willing”, but still  (at least eventually) under the WTO umbrella, using its well-developed dispute settlement system and institutional framework.  Thus, another bilateral accord in recent weeks, between the US and China, will allow the Members involved to push forward with a new version of the plurilateral Information Technology Agreement (ITA).  At the same time, negotiations on liberalization of green goods have been happening in Geneva, another plurilateral initiative, where US leadership has been crucial (Canada’s WTO Ambassador, Jonathan Fried, has also given these talks a big push).

So, contrary to what the pessimists have been saying, the WTO is far from dead these days.  But some are claiming that the recent breakthrough is in fact trivial and disguises the virtual irrelevance of the current WTO agenda.  Financial Times journalist Alan Beattie, writing yesterday on one of the FT’s blogs, claims that reaching agreement with India on food security in order to push forward on the Trade Facilitation Agreement is hardly a victory, at all but perhaps a defeat in disguise.  Part of  Beattie’s argument is that the TFA is an unimportant accord, which has been blown up in significance because other elements of the Doha round agenda proved largely impossible to move forward on (such as genuine reform of rules on agriculture).   So what is the real story about trade facilitation?  Beattie is more wrong than right, and here’s why.

First of all, a little explanation of the jargon.  Trade facilitation is about improving customs administration, and the necessary infrastructure to move goods across borders.  Sounds boring, but the losses to otherwise efficient trade from these kinds of bottlenecks at the border, whether do to as corruption and incompetence, or just inadequate resources or out-of-date technology, are real.  One may question whether, however, the WTO, or indeed any set of legal rules, is up to tackling this kind of issue: it seems more a matter of institution-building, support for new technology and infrastructure, and rule of law/governance activities such as training of officials and redesign of domestic agencies.  In other words, if anything, the World Bank’s and regional development banks’ sort of thing, not the WTO’s.  Thus, I myself have in the past expressed skepticism about how much the WTO can do in this area.  (An excellent guide to the TFA by Ole Miss law professor Antonia Eliason can be found here).

Yet, as Ruti Teitel and I have argued in our essay “Beyond Compliance,” Continue Reading…

[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the Autónoma de Madrid University.] 

Introduction

Colombian President Juan Manuel Santos announced on Monday, November 17,2014, that the negotiations between the Colombian Government and the FARC guerrilla seeking to reach a peace agreement were suspended because of information that the FARC kidnapped a Colombian general, an officer, and a lawyer (see here and here [in Spanish]).

While the reaction of the non-state armed group is yet to be seen, it is interesting to take into account its likely position regarding the type of conduct it is accused of having perpetrated. On Sunday November 9, 2014, the FARC kidnapped two Colombian soldiers, called César Rivera and Jonathan Andrés Díaz, but claimed that, in its opinion, far from breaching international humanitarian law, the group acted in accordance thereof. The FARC considers the soldiers to be captured as ‘prisoners of war’ and claims to have treated them in accordance with humanitarian principles by respecting their rights to life and integrity (Spanish) (it must be noted that, in the past, those deprived of their liberty by the FARC have notoriously been treated in an inhuman fashion and to the detriment of the enjoyment of their human rights [see here and here]).

Illegality of all deprivations of liberty attributable to non-state armed groups during non-international armed conflicts

It is important to examine if the claim of the FARC can be consistent with international law: namely, whether a non-state armed group can deprive individuals of their liberty during non-international armed conflicts under International Humanitarian Law (IHL). If the victims are civilians, the answer is clearly a negative one. Furthermore, in a scenario as the Colombian one, in which many civilians have suffered the deprivation of their liberty and their being placed in harsh conditions and treated cruelly or even killed at the hands of the guerillas, which have also extorted money as a condition to release some of them, it can be said that those deprivations of liberty have been carried out “as part of a widespread or systematic attack directed against any civilian population”, and so that those who perpetrate them commit a crime against humanity, according to article 7.e of the Rome Statute of the International Criminal Court. From the point of view of human rights law, it can also be argued that the conduct in question amounts to a violation of those rights (and if it is accepted that non-state entities have human rights obligations, the armed groups would breach them as well).

When it comes to the legal analysis of the deprivation of liberty of members of the Colombian armed forces by the FARC, it is important to begin by noting that the regulation of international and non-international armed conflicts is not always identical or even similar. In fact, applying the rules of the former to the latter may sometimes be problematic, being this one of those events. In this regard, while treaty and customary norms permit the detention of prisoners of war during international armed conflicts, as Rule 99 of the Customary IHL Database of the International Committee of the Red Cross (ICRC) indicates, there is no indication that such a rule is applicable in non-international armed conflicts. In fact, the aforementioned rule, dealing with deprivation of liberty, when discussing non-international armed conflicts, focuses on the human rights standards governing the deprivation of liberty attributed to States, stressing that it must be lawful and non-arbitrary; and so implicitly indicates that there is no legal authorization for non-state armed groups to deprive anyone of his or her liberty or to detain them. In doctrine, this is confirmed by the analysis of conflicts such as the Israeli-Palestinian one, regarding which it has been said that: Continue Reading…

But, believe it or not, there’s lots more. This very same Kojève also happens to have been one of the main legal architects of the GATT; as Irwin, Mavroidis and Sykes note in their study of the GATT’s origins, he was head of the legal drafting sub-committee.  At the time Kojève was a French official, who would also work with Robert Marjolin among others on the design of the European Community (now Union).  Kojève tried to influence the development of the GATT in a direction contrary to the mercantilist or proto-neoliberal tendencies of the Anglo-American negotiators.  He designed proposals for a global commodities facility, and was at the forefront of efforts to provide a special regime for developing countries, which Kojève conceived as a kind of reversal of colonialism, with new rules that would switch around the terms of trade between developing countries and the former imperial powers in the developing countries’ favor. He was apparently known as the “serpent” by the American GATT team, one former ambassador told me, because his dialectical brilliance could run rings around those who challenged his position in Geneva discussions. Looking at Kojève’s role is useful in helping us understand that there were highly informed alternative views of the international trading system at the Geneva table during the formative years; this contrasts with the impoverishment that came with the adoption of a basically neoliberal outlook by the increasingly closed “epistemic community” that produced the WTO, and the legitimacy crisis of global economic governance that followed not long after the WTO’s founding. Remarkably, no in-depth study has been done of Kojève’s place in postwar international economic lawmaking and diplomacy; a few years back I spent some weeks in archives in Paris, preparing the initial groundwork for such a study.  But it would require quite a few interviews as well much more archival work, including at the GATT itself, to do the job properly. I hope there’s someone out there reading this who will beat me to it…

[Andrea Pin is senior lecturer at the University of Padua, where he teaches constitutional law, comparative public law, and Islamic law. He is also a fall 2014 Kellogg visiting fellow at Notre Dame.]

A few weeks ago, the Italian Constitutional Court’s decision no. 238 of 2014 struck blows to the theory and practice of sovereign immunity, the International Court of Justice (ICJ), German-Italian relationships, and even the Italian Government. On October 3, 2012, the ICJ decided that the customary sovereign immunity from jurisdiction protects Germany from suits brought before Italian domestic courts seeking compensation for Nazi crimes perpetrated in Italy during World War II.

Later on, new suits were filed against Germany in Italian domestic courts. This time, Italian judges requested a preliminary ruling from the Italian Constitutional Court to ascertain if the sovereign immunity protection, as crafted by the ICJ, was against the Italian Constitution. If the Court found that such immunity violated the Constitution, the judges would process the suits.

The Constitutional text proclaims that “The Italian legal system conforms to the generally recognised rules of international law” (Art. no. 10). International customary law falls in this category and therefore prevails over incompatible domestic legal provisions. But there has always been a caveat: the generally recognized rules of international law cannot be enforced in Italy if they conflict with the supreme principles of the Constitution. This is the doctrine of counter-limits, which the Constitutional Court shaped with special regards to the European Union integration: according to this doctrine, core constitutional values would set exceptional boundaries to the domestic enforcement of EU laws, which can ordinarily subordinate constitutional provisions.

The hypothetical non-enforcement of international law for violating a supreme constitutional value had never become reality—until now. The 2014 decision of the Constitutional Court found that Art. no. 24 of the Constitution (“All persons are entitled to take judicial action to protect their individual rights and legitimate interests”) encapsulates a fundamental principle of the Constitution. Therefore, the Court blocked the application of sovereign immunity from jurisdiction, and allowed the referring Italian judges to proceed with the relevant trials.

This unprecedented decision surely is in conflict with the ICJ Statute. In fact, the Italian Court consequently struck down the pieces of Italian legislation that commanded the enforcement of the ICJ’s judgments in cases of gross human rights violations as well. But it will also create some turbulence in the relationships between Italy and Germany.

The Constitutional Court’s decision, finally, is in conflict with the Italian Government’s attitude. After the ICJ’s judgment, the Government signed and had the Parliament execute the New York Convention on Jurisdictional Immunities of States and Their Property (2004). This Convention confirmed the ICJ’s approach to sovereign immunity: practically speaking, after losing at the ICJ, the Italian State happily legitimized Germany’s jurisdictional immunity. The Constitutional Court also needed to quash these pieces of Italian legislation. Continue Reading…

Mark Kersten, creator of Justice in Conflict, long one of the most important blogs in international criminal justice, successfully defended his thesis yesterday at the LSE. Heartfelt congratulations, my friend!

And, of course, now that Mark has the word “Dr.” in front of his name, we can finally take him seriously.

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris.]

According to Jacob Heilbrunn, the editor of The National Interest, the neocons are about to make a spectacular comeback in American foreign policy.  Writing about the midterm elections in the Financial Times last Friday, Heilbrunn observed: “the Republican party is resurrecting the unilateral foreign policy doctrines that first took hold under President George W Bush and his vice-president Dick Cheney.” So let’s take a hard look at the weapons the neocons have in their arsenal these days.

The first, as Heilbrunn notes, is Barack Obama, or more precisely discontent with his apparently reactive and hesitating approach to foreign and security policy, exemplified by situations such as Ukraine, Syria and the rise of ISIS.  If you read the fine print, to the extent there is any, the neocons like Cheney and Bill Kristol don’t have any master plan or worked out strategy of their own for dealing with these problems.  They appeal to the heartwarming (for some Americans) fantasy that, if the United States simply drops enough bombs and puts enough boots on the ground, victory over the forces of evil will prevail.  In this fantasy world, every apparent failure of intervention–Afghanistan, Iraq–can be explained by not enough American force being applied.  Consider Bill Kristol’s approach to ISIS: “What’s the harm in bombing them at least for a few weeks and seeing what happens?” This is the key logic:force has got to be better than no force, a sort of dogmatic inversion of pacifism. Of course, Kristol’s remark also speaks volumes to the neocons’ stance toward international law.

Then there is Senator-elect Tom Cotton.  As Heilbrunn notes,”Perhaps no one has been more impassioned in their support of the foreign policy of George W Bush than Tom Cotton.” Cotton, 37 years old, is the neocon wet dream.  After Harvard College (where he wrote for the Crimson, citing intellectual idols Allan Bloom and Leo Strauss) and Harvard Law School, Cotton signed up for the military insisting that he be sent into combat in Iraq.  While, as the legend goes, the army urged him toward a JAG-type position, Cotton would have none of it:  he had little interest in the laws of war, he wanted to fight one.  Cotton is perhaps the most credible of any of the neocons–he, at least, chose to risk his life in the war that he praised as “just and noble”.  He has also (at least somewhat) distanced himself from the main neocon strategy of withering attacks on Barack Obama, calling on Republicans to support the President’s plan for use of force in Syria and rather nobly lecturing partisan Republican conservatives: “we have one commander in chief at a time, and the United States is weakened if our presidency is weakened. No matter the president’s party or his past failures, all Americans should want, and help, him to succeed when it comes to our national security.”   While he shares the outlook of the ideological and partisan neocons, offering his conviction that America can and should seek “victory” in Afghanistan and Iraq, my hunch is that, given that he has had the responsibility as a soldier for the lives of men and women in combat, Cotton may actually prove a constructive and moderating force behind the scenes, if he does not consume too much energy in battles with the isolationist Rand Paul wing of the Republican Party.

Continue Reading…

It’s my pleasure to announce that Rob Howse will be guest blogging on Opinio Juris this week.  Rob is the Lloyd C. Nelson Professor of International Law at NYU, and a specialist in international trade and investment law.  He is also the author of a new book in political philosophy entitled Leo Strauss Man of Peace published by Cambridge.   A great interview with Rob on the book can be found here.

As his CV attests, Rob is both a prolific scholar and an active practitioner who has been involved in  a wide range of cutting edge legal disputes.  It is our pleasure to welcome Rob to Opinio Juris this week.

As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation? After all, the OTP took barely 10 pages to explain why it was not going to open an investigation into British war crimes in Iraq. And it routinely refuses to open investigations with no explanation at all.

There are, I think, two possible explanations for the length of the decision. The first is that the OTP learned its lesson with its 2006 Iraq decision, which no one found convincing and was widely interpreted as Luis Moreno-Ocampo succumbing to Western pressure. This time, the OTP was going to do better, providing a much more detailed discussion of its decision not to investigate.

The second possible explanation is that the OTP felt the need to say more than usual because this was the first time a state had referred crimes committed by another state to the OTP. Nothing in the Rome Statute requires the OTP to treat state referrals differently than “referrals” by individuals or organisations (the scare quotes are necessary because individuals and organisations don’t refer situations; they ask the OTP to use its proprio motu power to open an investigation into a situation), but the OTP is, of course, ultimately dependent upon states to cooperate with it. Hence greater solicitude toward state referrals is warranted.

These two explanations are not mutually exclusive, and I imagine both are at least partially correct. But I still can’t help but think that the OTP made a serious mistake, one that will come back to haunt it in the future, should it ever need to formally address the Israel/Palestine conflict again — which seems likely.

To be clear, I don’t think refusing to investigate the attack on the Mavi Marmara was a mistake. I agree with the OTP that the potential crimes committed during the attack, however troubling, are not grave enough to warrant a formal investigation. My problem is with the OTP’s explanation of why those crimes are not adequately grave – that attacks on peacekeepers (in Darfur) are more serious than an attack on civilians engaged trying to break a blockade that has been widely condemned as illegal because of its devastating consequences for the inhabitants of Gaza. I fully agree with Michael Kearney’s recent guest-post on the Comoros decision, in which he questions the OTP’s characterisation of the flotilla as not really being humanitarian. I’d simply add that I find problematic its insistence that a genuinely humanitarian mission would have worked with Israel to distribute goods in Gaza instead of trying to break the blockade. Doing so would have meant, of course, giving final say over the goods to a state whose officials have admitted they want to keep Palestinians at near-subsistence levels. Complying with the blockade would simply have made the flotilla complicit in Israel’s ongoing collective punishment of Gaza’s civilian population.

The OTP’s gravity analysis is also analytically confused…

Nearly nine years ago, I blogged about the ICRC’s efforts to prevent the use — or, more accurately, the misuse — of the Red Cross symbol in videogames. I imagine it will have less of a problem with the new game This War of Mine, which challenges the player to survive as long as possible as a civilian in a war-torn fictional city. Here is the powerful trailer for the game, which mixes survivor testimony with haunting in-game graphics:

And here is a snippet of a glowing (if that’s the right adjective) review of the game by Matt Peckham in Wired:

I’ve seen some refer to This War of Mine as an antiwar video game. That’s too reductive—like calling pictures of civilian casualties in conflict zones “pacifist propaganda.”

The scenarios This War of Mine engages are less antiwar than they are actual war stories, and that, I think, is the point: This is what unflinching war looks like from the standpoint of those powerless to stop it, the ones caught in the teeth of the machine without catchy operational monikers to rally behind or celebrated by politicians to usher them home as heroes. The ones whose war this isn’t.

It’s what Cormac McCarthy was getting at in The Road: We’re a faint signal cutting through the static of existence, and war, with its reduction of civilian lives to collateral damage, scrambles even that.

The version of war we’re often sold involves abstract military numbers, splashy interactive news maps and easy slogans on bumper stickers. In real war, whatever the reasons and however noble the rhetoric, it comes down to individuals like the ones in This War of Mine: People like you or me trapped in appalling scenarios, their social constructs crumbling, needing basic shelter, food, a bed to sleep in, pills or antibiotics, and perhaps most of all, a reason in all the madness not to check out for good.

Videogames are now a $15 billion industry. Here’s hoping at least some of that money goes to the innovative developers of This War of Mine for showing us the educative and transformative potential that well-designed videogames possess.

[Duncan French is the Head of Law School and a Professor of International Law at the University of Lincoln and Jean d’Aspremont is a Professor of International Law at the University of Manchester and a Professor of International Legal Theory at the University of Amsterdam.]

The two-day expert seminar on the identification of customary international law, co-organised by Lincoln Law School and the Manchester International Law Centre, took place on 13-14th November at the University of Lincoln. With the active participation of Sir Michael Wood, the Special Rapporteur of the International Law Commission (hereafter ILC) on the issue, the seminar witnessed the contribution of over 25 international lawyers from around the United Kingdom. Discussions focused on Sir Michael’s second report, the eight draft conclusions adopted by the ILC drafting committee and those issues yet to be considered in the preparation of the third report.

A blog for Opinio Juris in advance of the seminar entitled “Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions” had flagged many of the salient matters discussed during the seminar. As could be anticipated, interventions were made on the methodological aspects of the “two element” approach to the identification of customary international law, the role of international organizations in the determination of customary international law, inaction and acquiescence, and how customary international law has developed within particular areas of international law, notably in the economic and environmental spheres. There was also more wide-ranging discussion on, inter alia, the notion of opinio juris, the scope of the ILC conclusions, whether the development of human rights has impacted upon the identification of customary international law, international organizations, non-state actors, the role of the persistent objector, the relevance of specially affected states, the temporal inter-relationship between state practice and opinio juris, and the existence of special/local/regional custom, etc.

It is beyond the purpose of this blog to revisit the depth and richness of these exchanges. It will limit itself to formulating four sets of remarks.

First, there was general agreement among the participants that the scope of the ILC codification exercise is rightly restricted to the identification of customary international law. This was perceived as a pragmatic, and reasonable, delimitation. Nevertheless, it was acknowledged that one could not always easily distinguish between the formation, the identification and the evidence of customary international law. In that sense, it was highlighted that the current title was too narrow, and that, in the French text, the word (‘détermination’) captured more accurately the more nuanced and various complexities of the question. And this was not the only issue arising in the respective translations. The importance – both conceptually and practically – in the assessment of evidence in identifying customary international law [draft conclusion 3] takes on a subtly alternative understanding when interpreted as ‘áppreciation des moyens’.
Secondly, as indicated in the earlier blog, the practice and opinio juris of international organizations in the identification of customary international law – as distinct from the acts of States within and through such organizations – proved particularly contentious and triggered a lot of debate. The contribution of international organizations primarily raises the question as to whether the practice and opinio juris of international organizations should contribute generally to any customary rule, or only when it concerns the development of rules that will also bind international organizations. The Special Rapporteur and several participants indicated that, in their view, an organization can only contribute to the formation of a rule of customary law which it can potentially be bound by. This has to do with the self-commitment at the heart of the doctrine of customary international aw. It is also perhaps as a matter of equity between participants in the international legal system.

Equally, there was discussion as to which international organizations can contribute to the formation of customary international law. Legal personality is a seemingly determinate variable. Yet, a question remains as to whether there is a significant difference between organizations with a high degree of autonomy, those with more independent-minded secretariats and those international organizations that are member-state driven. It seems axiomatic that the greater the autonomy, the greater the extent to which the practice and the opinio juris of an international organization itself (in contrast to the acts of its members within the context of the organization) should contribute to customary international law.

The point was also made Continue Reading…

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

Africa

• The Nigerian army has driven out Boko Haram insurgents from Chibok, the home of over 200 schoolgirls who were abducted by militants of the Islamist group in April, an army spokesman said.
• Somalia’s al Shabaab militants said they fired mortar bombs at the presidential palace in Mogadishu on Sunday, but government and police spokesmen said none had landed inside the compound.

Middle East and Northern Africa

• Islamic State militants have beheaded another American hostage, Abdul-Rahman Peter Kassig, issuing a video claiming the killing on Sunday and warning the United States they would kill other U.S. citizens “on your streets.”
• Saudi Arabia, Bahrain and the UAE have agreed to return their respective ambassadors to Qatar. In an unprecedented public move, the three Gulf states had recalled their ambassadors in March, accusing Doha of failing to abide by an agreement not to interfere in one another’s internal affairs.
• Rebuffing international criticism, Israeli Foreign Minister Avigdor Lieberman told his German counterpart point-blank on Sunday that Israel will not stop building homes for Jews in East Jerusalem.

Asia

• Thousands of Rohingya boat people who have left Myanmar in the past month have yet to reach their destinations, say relatives and an advocacy group for the persecuted minority, raising fears their boats have been prevented from reaching shore.
• Three Hong Kong student leaders were stopped from boarding a flight to Beijing on Saturday to take their fight for greater democracy directly to the Chinese government after airline authorities said their travel permits were invalid.
• North Korean leader Kim Jong Un is to send a personal envoy to Russia, state media said on Friday, the latest in a series of diplomatic moves by the isolated country as it fends off accusations of crimes against humanity.

Europe

• Britain leaving the European Union would be a “disaster” for both it and the 28-nation bloc, Italian Prime Minister Matteo Renzi said on Sunday.
• Russia President Vladimir Putin said in a German television interview on Sunday that he is convinced it should be possible to find a way to resolve the crisis in Ukraine but added he was concerned about the threat of ethnic cleansing.
• German Economy Minister Sigmar Gabriel said on Sunday he does not believe tighter sanctions against Russia will help resolve the Ukraine crisis even though Chancellor Angela Merkel said on Saturday the European Union is considering further sanctions.
• Sweden has confirmed that a small foreign submarine illegally entered its waters last month, though it was still unclear which country was behind the intrusion, officials have said.
• The British prime minister has outlined plans to seize passports from British nationals linked to armed groups and stop them returning from fighting overseas.
• Russia plans to create its own “Wikipedia” to ensure its citizens have access to more “detailed and reliable” information about their country, the presidential library said on Friday.

Americas

• Colombian President Juan Manuel Santos suspended peace talks with Marxist FARC rebels following the kidnapping of an army general, throwing into crisis the nation’s efforts to end 50 years of war.
• U.S. Defense Secretary Chuck Hagel said on Sunday the Pentagon will accelerate its mission to train Iraqi forces to combat Islamic State militants, using troops already in Iraq to start the effort while funding is sought for a broader initiative.

Oceania

• Australian city Brisbane played host to the G20 meeting, where leaders have pledged to stimulate job growth, bolster global financial institutions and address climate change in the communique released at the end of a two-day summit in Brisbane.

UN/World

• Fighters from the Islamic State of Iraq and the Levant (ISIL) are committing war crimes and crimes against humanity on a large scale in areas under the group’s control in Syria, UN investigators say. In its first report focused squarely on acts by ISIL, the UN Commission of Inquiry on Syria presented on Friday a horrifying picture of what life was like in areas controlled by the group, including massacres, beheadings, torture, sexual enslavement and forced pregnancy.

[Daniel Bodansky is Foundation Professor of Law at Sandra Day O’Connor College of Law, Arizona State University.]

Is the US-China joint announcement on climate change a big deal? Opinions differ widely. Paul Krugman says yes, Tyler Cowan, no.

Who’s right? Is the announcement a “gamechanger,” as Joe Romm thinks, or “a well-timed, well-orchestrated press release,” as Cowan calls it? In part, the different answers reflect different measures of success, a point to which I will return in a moment.

But, first, a little background. Back in 2011, the parties to the UN Framework Convention on Climate Change adopted the Durban Platform, which launched negotiations to develop a new legal instrument to limit global greenhouse gas emissions post-2020. The Durban Platform negotiations are to be completed and a new agreement adopted in December 2015 at the Paris conference of the parties. A decision adopted last year in Warsaw called on states to communicate their intended national contributions to the new agreement well in advance of the Paris meeting. What the United States and China unveiled in Beijing – although generally characterized as an “agreement” or “pact” – were their intended national emission targets under the 2015 agreement.

At least four metrics are relevant in evaluating the joint announcement:

First, do the announced targets put us on a pathway towards limiting climate change to safe levels? Safety involves value judgments, of course, but most scientists believe that warming of more 1.5-2° C above pre-industrial levels would result in dangerous impacts – impacts that most people would wish to avoid. (The earth is already about .8 degrees warmer than pre-industrial level, so we’re almost halfway there.) Even the most ardent boosters of the US-China deal don’t claim that, by itself, it will put the world on a 2° pathway, only that it is a first step.

Second, do the targets announced by the United States and China represent a significant improvement over business as usual? Or, to put it differently, will achieving them require the US and China to significantly ratchet up their level of effort? Here, opinions differ widely, because they depend on judgments about what would happen in the absence of the targets, which in turn depend on assumptions about the economy, technology, and government policies more generally – all of which are highly uncertain. Who would have predicted, ten years ago, the Great Recession and the rapid expansion of fracking, both of which have had a huge influence on US emissions? So it is perhaps not surprising that some analysts say the US-China announcement “doesn’t change things much,” while others think it represents a major advance. Climate Interactive, for example, calculates that the US-China targets, if fully implemented, would reduce carbon dioxide emissions by about 650 billion tons through 2100 – and if other countries follow suit, taking similar targets, global emissions would be reduced by about 2500 billion tons through 2100.

A brief sampling of estimates of Chinese and US emissions:  Continue Reading…

Events

• ASIL-IEcLIG Co-Chairs, Elizabeth Trujillo (Suffolk University Law School) and Jason Yackee (University of Wisconsin Law School), are happy to announce the upcoming ASIL–International Economic Law Interest Group’s Biennial Research conference, on “Reassessing International Economic Law and Development: New Challenges for Law and Policy,” taking place on November 13-15, 2014. It is hosted by ASIL Academic Partner University of Denver Sturm College of Law, in collaboration with the Sutton Colloquium. The keynote speaker is Petros Mavroidis of ASIL Academic Partner Columbia University School of Law and the European University Institute. More than 60 leading scholars from five regions of the world will gather to present their academic work on the conference theme and other important topics in international economic law. Panels will address the role of law in devising domestic strategies for development; regulating climate change and fostering clean energy programs; addressing food security and technology transfer; and promoting international financial stability. More information can be found on the website here.

Call for papers

• The London International Boundary Conference 2015 will take place on 21-22 April 2015 at the Royal Geographical Society in London. The organizers have launched a call for papers.This conference will provide a unique and multidisciplinary insight into the complex world of international boundary and territorial questions.  Each panel will offer a balance of established expertise and emerging talent. The Department of Geography, King’s College London, Volterra Fietta and the United Kingdom Hydrographic Office invite any interested parties to submit their abstract to Clementine Lietar (clementine [dot] lietar [at] volterrafietta [dot] com) and Anass El Mouden (anass [dot] elmouden [at] volterrafietta [dot] com) by 31 December 2014. This abstract should be written in English and contain no more than 500 words. It should include the title of the paper as well as the name and contact details of the author. More information about the call and the conference can be found on the website.
• The Stanford Program in Law and Society at Stanford Law School is pleased to announce its Second Conference for Junior Researchers. Following the success of last year’s Inaugural Conference, this event seeks to continue the community-building process by providing a forum where aspiring scholars from around the globe can meet to present and discuss their current projects on law and society and create a fruitful ground for future cooperation. The conference is specially designed for junior researchers to present their work in progress and receive input from faculty and other participants, while promoting vibrant discussions and the exchange of ideas. The conference will also allow participants to develop their research skills through a special workshop. The conference invites papers from junior researchers (graduate students, post-graduate students, post-doctoral researchers as well as recent graduates from law schools and social science departments) that explore the relationship between law and social transformations. More information can be found here. Junior researchers are invited to submit an abstract of up to 400 words, together with their CV. All abstracts and CVs should be submitted to stanfordlawandsociety [at] gmail [dot] com by January 12, 2015.
• The Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXIV), which will be published in June 2015. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. In this context, we are particularly looking for articles that analyse different legal aspects of the current Ukrainian crisis and the new power relations that are emerging in this part of the world. Authors from the region are also strongly encouraged to submit their works. Submissions should not exceed 15,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal. All details about submission procedure and required formatting are available on PYIL’s webpage. Please send manuscripts to pyil [at] inp [dot] pan [dot] pl. The deadline for submissions is 31 January 2015.

Announcements

• TheCentre of Excellence for International Courts (iCourts) welcomes scholarship applications oriented at the study of international courts and dispute resolution with an empirical and interdisciplinary focus. In particular, candidates interested in the institutionalization of global courts, such as the ICC, ICJ, WTO AB and the ITLOS; in international commercial arbitration; and in the justificatory practices of international courts in philosophical context are encouraged to apply. Contact: Associate Professor, Joanna Jemielniak, joanna [dot] jemielniak [at] jur [dot] ku [dot] dk. You can read more about the scholarships on the 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 with a one-paragraph description of your announcement along with hyperlinks to more information. 

This week on Opinio Juris, we had three guest contributions in addition to some of our regular bloggers weighing in on timely issues in international law. The first guest post, from Michael Kearney, discussed his thoughts on the ICC’s recent decision regarding the Mavi Marmara report, in which he focused on issues about fact-finding missions, categorization of armed conflict, limitations on territorial jurisdiction, and humanitarian assistance.

Jean d’Aspremont weighed in on an event that was organized by Manchester International Law Center and the Lincoln Law School, and shared his thoughts about the identification of customary international law and the ILC report. Another post is expected from Jean later this week or beginning of next.

Additionally, Gabor Rona contributed to a discussion about the United States’ AUMF with respect to the Islamic State, that had its origins on Lawfare and Just Security earlier in the week, specifically about use of force provisions against “associated forces” and why the government should go with Just Security’s “parties to the conflict” interpretation versus Lawfare’s proposal of “engaged in hostilities”.

From our regular contributors, we saw Peter’s analysis of Kuwait’s decision to bulk-order Comoros citizenship (to the tune of a couple hundred million dollars) for stateless native-born tribal Bidoon, thereby purporting to solve the statelessness problem in Kuwait and Roger discussed his contribution to a Notre Dame Law Review symposium on Bond v. United States, in which he presented on the relationship between Supreme Court treaty interpretation and the international approach to treaty interpretation under the Vienna Convention on the Law of Treaties.

Kristin called attention to the election of two new ICJ judges and Kevin also announced a UNWCC event at SOAS London coming up on the 19th.

Finally, I wrapped up the news and An listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

Just Security and Lawfare have published dueling AUMF reform proposals, here and here. (The proposals are not those of Just Security or Lawfare, but rather, those of the individual authors. For ease of reference, I’m calling them Just Security and Lawfare.) At the moment, there are also dueling posts on the two websites about the meaning of the Just Security proposal’s sunset provision. In fact, there are bigger fish to fry.

There’s quite a bit of agreement in the two proposals, as Ben notes in his responsive post at Lawfare, but he takes issue with the Just Security proposal’s principle #1: that a new AUMF should be “ISIL-specific and mission-specific.” Ben wants to include Al Qaeda and the Taliban, but the fact is that while the Just Security proposal is limited to ISIL, it does nothing that would conflict with executive powers to use force elsewhere. Both proposals contemplate force against ISIL and “associated forces,” but the Lawfare proposal explicitly adds Al Qaeda and the Afghan Taliban. This addition appears to be a critical distinction between the two proposals, since they both also envision repeal of the 2001 AUMF against those responsible for 9/11 and those who harbor them (Al Qaeda and the Taliban) and of the 2002 AUMF against Saddam’s Iraq. Ben fears, mistakenly, that the Just Security proposal would leave our residual forces in Afghanistan legally naked. Here’s why he’s wrong.

The U.S. mission in Afghanistan hasn’t ended, but it has changed. The two international legal elements for armed conflict no longer exist. The first element is frequent and/or severe attacks. Fact is, it’s been quite a while since there have been either frequent or severe hostilities between the US and Al Qaeda/Taliban, whether in Afghanistan, Pakistan or elsewhere on the planet. The drawdown of coalition troops and the limits imposed on those that remain make it difficult, if not impossible, for frequent or sever hostilities to persist. The second element for armed conflict is that the attacks be conducted by organized entities with a command structure, such that they are capable of being considered “a party” to armed conflict and subject to the laws of war. Whether you prefer to think of Al Qaeda as having “metastasized” or “dissipated,” there’s plenty of reason to doubt that “it” is no longer an “it” with the requisite command structure.

Another way to view the situation is that we’ve gone from war in Afghanistan, where force may be employed offensively, to non-war, where force may be employed defensively. The point for AUMF purposes is this: while US troops may need congressional authorization to prosecute a war, they do not need congressional authorization to defend themselves. That’s because the executive has inherent authority to order, or permit, our forces to defend themselves in the event of attack or imminent threat.

Bottom line # 1: while the Lawfare proposal is more emphatic about repeal of the two AUMFs than is the Just Security proposal, it is the Just Security proposal’s limitation to ISIL that more genuinely melds facts on the ground with applicable law, while doing nothing to compromise the executive’s constitutional powers to use force in self-defense.

Ben’s concerns aside, both proposals fail to deal effectively with the flawed notion of “associated forces.” Section 2b of the Lawfare proposal says that the “authorization of force (against Al Qaeda, the Islamic State, and the Afghan Taliban) extends to associated forces of (those) entities . . . insofar as such forces are engaged in hostilities against the United States.” There are two things wrong here.

First, the very notion of “associated forces” as a construct to widen the net of war is wrong. There is no such notion in international law, and for good reason. There is a notion of “co-belligerency” applicable to wars between states. This notion exists to remove the protections of the law of neutrality when State C interferes in a war between States A and B. But there is no neutrality principle applicable to non-State armed groups, so the US’s doctrine asserting the right to engage against “associated forces” by analogy to the concept of co-belligerency is flawed. In fact, the notion of war against X and its “associated forces” is little different than the notion of global war, absent refinement of the associated forces concept.

Second, the Just Security proposal also endorses the “associated forces” concept and is, therefore, also flawed, but it at least requires a narrow definition of that term, “to include only those groups that are acting in concert with ISIL as parties to the armed conflict against the United States…” The Lawfare proposal does not define “associated” and applies to any forces “engaged in hostilities,” a much broader frame than “acting in concert with ISIL as parties to the armed conflict…”. It’s questionable that ISIL or any of its alleged associated forces are “engaged in hostilities against the United States.” As far as I’ve seen, the hostilities have been pretty much a one-way street, with U.S. bombings of ISIL. To maintain this asymmetry is why, I suppose, Americans don’t want U.S. boots on the ground.

Bottom line # 2: if you want to authorize use of force against “associated forces” rather than specific named entities (although I recommend against it for the reasons stated above) do so with the Just Security proposal’s reference to “parties to the conflict” rather than Lawfare’s “engaged in hostilities.”

Tomorrow I have the good fortune of participating in the Notre Dame Law Review symposium with leading foreign relations scholars. The topic of the symposium is Bond v. United States. The keynote will be given by Paul Clement, who won the case for Petitioner.

The focus of my discussion will be the relationship between Supreme Court treaty interpretation and the international approach to treaty interpretation. As readers of this blog well know, the Supreme Court has never followed the international approach to treaty interpretation. In the over forty years since the Vienna Convention on the Law of Treaties was signed, the Supreme Court has not relied on its interpretive methodology on a single occasion. This is despite the fact that the Vienna Convention’s interpretive approach (the “Vienna Rules”) reflected the common practice at the time it was adopted, and now reflects customary international law. This is despite the fact that the United States views the Vienna Convention as the authoritative guide to treaty law and practice.

This is not to suggest that the Supreme Court does not utilize the same interpretive tools as the Vienna Rules. Indeed, at one time or another the Court has used every single interpretive tool reflected in the Vienna Rules. It supports reliance on the ordinary meaning of the terms of a treaty. The Court has held that “[a]s treaties are contracts between independent nations, their words are to be taken in their ordinary meaning as understood in the public law of nations.” It recognizes that a treaty should be construed to give effect to its purposes, stating that “[a] treaty should be generally construed liberally to give effect to the purpose which animates it.” It agrees that a treaty should be read in context, reasoning that “when interpreting a treaty, we ‘begin with text of the treaty and the context in which the written words are used.’” It interprets terms in light of subsequent practice and subsequent agreements. It supports recourse to supplementary means of interpretation, such as the negotiating history. It follows general rules of interpretation such as presumptions and constructions that follow ordinary logic and reason. Thus, although the Court has never systematically followed the holistic, unitary approach of the Vienna Rules, it consistently relies on the same interpretive tools.

Bond v. United States marks an important moment in this history of Supreme Court treaty interpretation. Although it did not cite the Vienna Rules, it is the first time that the Supreme Court has analyzed a treaty (and it’s implementing legislation) using the same methodology as the Vienna Rules. That is, the Court interpreted the treaty “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Because the terms of the treaty were ambiguous and could lead to manifestly absurd and unreasonable results, the Court also applied supplementary means of interpretation, including the negotiating history and a federalism presumption.

The ordinary meaning of the term “chemical weapon” was central to the Court’s analysis. “[A]s a matter of natural meaning, an educated user of English would not describe Bond’s crime as involving a ‘chemical weapon.’” The natural meaning of that term accounts for both the type of chemical used and the circumstances in which they were used. No ordinary person would consider that the chemical Bond used was a deadly toxin of the type the Chemical Weapons Convention was designed to address. The ordinary meaning of a “weapon” is an “instrument of offensive or defensive combat.” Using natural parlance, Bond’s behavior was not combat. Interpreting “chemical weapon” to include Bond’s crime “would give the [implementing] statute a reach exceeding [its] ordinary meaning.” Reliance on the ordinary meaning of “chemical weapon” plays a “limiting role” on the scope of the prohibition, and avoids transforming a “statute passed to implement the International Convention on Chemical Weapons into one that also make it a federal crime to poison goldfish.”

The Court in Bond extensively discussed the object and purpose of the Convention. It began with an image of the ravages of chemical warfare during the First World War as the impetus behind the overwhelming consensus that toxic chemicals should never be used as weapons of war. It cited the bold aspirations expressed in the Convention’s Preamble—the complete elimination of all types of weapons of mass destruction used by state and non-state actors in times of war and peace. These purposes were critical to the Court’s interpretation. “[T]he Convention’s drafters intended for it to be a comprehensive ban on chemical weapons … [and] we have doubts that a treaty about chemical weapons has anything to do with Bond’s conduct.” Given the purpose of the Convention to address “war crimes and acts of terrorism,” the Court concluded that “[t]here is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault.” It found that Bond’s chemical of choice—an arsenic-based compound that causes minor irritation when touched—bore “little resemble to the deadly toxins that are ‘of particular danger to the objectives of the Convention.’” The “purely local crime” that Bond committed “could hardly be more unlike the uses of mustard gas on the Western Front or nerve agents in the Iran-Iraq war that form the core concerns of the treaty.” Accordingly, the United States and the community of nations have no interest in seeing Bond imprisoned for violating the ban on chemical weapons. “[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

The Court also repeatedly cited context as an interpretive aid. It concluded that “the context from which the [implementing] statute arose demonstrates a much more limited prohibition was intended” by the ban on chemical weapons. Rather than rely solely on the statutory definition the Court concluded that the “the improbably broad reach of the key statutory definition” was rendered ambiguous by “the context from which the statute arose—a treaty about chemical warfare and terrorism.” The Court interpreted the term “chemical weapon” in light of the entire Convention, including the Preamble, other treaty provisions, and the Annex on Chemicals. These provisions illuminated the purpose and structure of the ban on chemical weapons, and the nature of the banned chemicals.

Most importantly, the Court twice cited another provision of the Convention, which provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” It cited this provision as contextual support for a federalism presumption. The “constitutional process in our ‘compound republic’ keeps power ‘divided between two distinct governments.’” Faithful to federalism and other constitutional concerns, the Convention only required that “necessary measures” be adopted, leaving to the States how they would be adopted within their constitutional system. This context permitted the Court to interpret the treaty obligation consistent with a federalism presumption, a presumption that has a longstanding history within the Court’s jurisprudence.

Bond raises the possibility that the Court’s interpretive approach could more closely align with the international standard. There already are existing canons of construction that support a greater reliance on the Vienna Rules. Among them is the general rule that treaties are contracts between nations that should be interpreted according to a shared understanding. As the Court recently put it, “[a] treaty is in its nature a contract between nations, not a legislative act.” Therefore, “it is our responsibility to read the treaty in a manner consistent with the shared expectations of the contracting parties.” If the shared expectations of the contracting parties is that treaty terms should be interpreted according to the Vienna Rules, then it follows that the Court could apply that canon not only to interpret the meaning of specific treaty terms, but also to its interpretive methodology. It would not do so because the United States has ratified the Vienna Convention or that the Vienna Rules are otherwise part of United States law. Rather, the Court would rely on them because with every treaty the contracting parties have the expectation that the treaty terms will be interpreted using the Vienna Rules.

Another canon of construction is that the Court should give deference to the Executive Branch’s interpretation of treaties. If the Executive Branch recognizes that the Vienna Rules are the authoritative guide to treaty interpretation, then the Court should give great weight to that conclusion. Ordinarily this deference applies to the Executive Branch’s interpretation of specific treaty terms. But it could also support the Executive Branch’s support for the Vienna Rules as the authoritative guide to treaty interpretation. As the United States argued in one recent case, “[a]lthough the United States has not ratified the Vienna Convention on the Law of Treaties, the United States generally recognizes the Convention as an authoritative guide to treaty interpretation.” If the United States views the Vienna Rules as the authoritative guide to treaty interpretation, and the Supreme Court gives deference to Executive Branch’s interpretation of treaties, then the Court could rely on the Vienna Rules in deference to the Executive Branch.

The Supreme Court has long ignored the Vienna Rules. Bond does not change that fact, but it does give support for courts to rely on the interpretive tools that form the basis for the Vienna Rules. The Court has always accepted the tools of interpretation reflected in the Vienna Rules. It now has accepted those tools as part of a holistic, unitary approach. The Vienna Rules are hidden behind the veil of Bond’s interpretative methodology. Consistent with accepted canons of construction, the Court could rely on the Vienna Rules more explicitly.

Citizenship for sale schemes have become an increasingly common phenomenon as the rich from non-Western states look to upgrade their travel privileges. The likes of Malta, Cyprus, and St. Kitts have had some success selling citizenship to plutocrats from Russia, China and other non-visa waiver countries. The revenues supply a nice fiscal bump at low marginal cost to these small states. The price is fairly steep (more than a million Euros in the case of Schengen-advantaged Malta) but the number of buyers has been relatively small.

That’s cash-for-passports on a retail basis. We now have reports of the first wholesale purchase. Kuwait has long been criticized for its refusal to extend Kuwaiti citizenship to native-born tribal Bidoon, who as a result have been left stateless. (See this report from Human Rights Watch, for example.) Kuwait continues to deny the Bidoon Kuwaiti citizenship. But it is now moving to procure them citizenship in the Comoros. Kuwait purports to solve the statelessness problem. The Comoros (not a rich country) gets a couple of hundred million dollars for the favor.

Full report here from Atossa Abrahamian in Aljazeera America. Those Bidoon who accept Comoros citizenship will no longer be stateless, which will better their lot in place in Kuwait for things like health care. But human rights groups aren’t buying. The Comoros scheme will continue to deny the Bidoon access to citizenship in their place of habitual residence. That’s problematic as a matter of international human rights, which is beginning to assimilate an “access to citizenship” norm beyond the long-established regime against statelessness.

The transaction itself is probably consistent with international law. States have near-complete discretion with respect to the extension of citizenship. If the Comoros wants to sell nationality on a bulk basis to a group of people that have no ties to the Comoros, that’s its business, at least to the extent that the Comoros doesn’t try to assert the nominal nationality against other states (which would bring the ICJ’s Nottebohm threshold of “genuine links” into play). That’s highly unlikely, since the Comoros won’t have much interest in expending diplomatic resources on behalf of citizens with whom it has no organic social connection.

So the deal is likely to stick. It might even serve as a template for other states that host large stateless populations. Hard to argue that this doesn’t supply further evidence of citizenship’s degradation, but there’s not much to do about it.

[Jean d’Aspremont is a Professor of International Law, University of Manchester and a Professor of International Legal Theory, University of Amsterdam.]

The identification of customary international law is à la mode among international lawyers. Seminars, research handbooks, special symposia in scholarly journals and on-line discussions devoted to the question are mushrooming these days. Arguments and constructions heard on these occasions are sometimes admirably – and sometimes even adorably – creative. Amidst this academic mania, particularly noticeable is the forthcoming expert seminar organized by Lincoln Law School and the Manchester International Law Centre on Thursday the 13^th and Friday the 14^th of November 2014 at Lincoln Law School. This two-day meeting will gather 25 international lawyers from across the United Kingdom. They will be joined by Sir Michael Wood, i.e. the International Law Commission (hereafter the ILC)’s Special Rapporteur. The discussions that will take place on this occasion are meant to provide the Special Rapporteur with new insights that could feed in his 3d report due in 2015. This expert seminar follows a series of similar meetings that were held in the last months both in the United Kingdom and the United States. It also perpetuates the – welcome – outreach and openness of Sir Michael Wood to the academic community witnessed over the last two years. On the eve of this new expert meeting, it is not unwarranted to take stock of where the debate currently stands as well as the direction in which the ILC and its Special Rapporteur are steering it.

Two years into the debate and after the submission of two reports by the Special Rapporteur, the ILC has already taken a few firm positions which it is unlikely to reverse. It would be of no avail to revisit them here. These choices, which are obviously more normative and policy-motivated than grounded in empirical findings, simply ought to be recalled:

1. The ILC decided not delve into the (jurisprudential) question of the nature of the rules, principles and practices on the establishment of customary international law (for a study on this question, see here). The reference in the draft conclusions to the rules on customary international law is meant to be without prejudice to the nature of the doctrine of customary law.
2. The question of customary international law arising in connection with ius cogens was left aside.
3. The regime of customary international law was held to apply across all areas of international law and the idea of differentiated regimes of customary law identification (e.g. in international criminal law or environmental law) was strongly rejected by the ILC and its Special Rapporteur. The position that prevailed in the Palais des Nations is that the difference is not of regime but of application. This normative move for the preservation of the unity of the doctrine of customary law is not without a self-empowering dimension, as it automatically gives the work of the ILC a universal scope.
4. The doctrine of customary law was equated with the two-element approach and no consideration will be given to scholarly constructions pertaining to the so-called ‘new custom’ (see the report’s draft conclusion 3 and drafting committee’s draft conclusion 3). This position is part of the abovementioned promotion by the ILC of a unitary regime of identification of customary international law.
5. Both the Special Rapporteur and the Drafting Committee considered preferable not to address the question of non-State actors in the conclusions themselves as there was supposedly a widespread agreement that the practice of non-State actors generally is not directly relevant to the formation of customary international law. This was deemed to be without prejudice to the influence of non-State actors in the promotion and adoption of certain behaviours by States and international organizations.

The second report proposed 11 draft conclusions which were referred to the ILC’s Drafting Committee which provisionally adopted 8 conclusions. It will not come as a surprise that the second report as well as the conclusions adopted by the Drafting Committee have not clinched all the controversies associated with the aspects of the identification of customary law that have already been addressed so far. Mention must be made here of some significant recurring ambiguities:

1. Although taking pains to distinguish between the establishment of customary law and the evidence of the two elements (see the report’s draft conclusion 4 and draft conclusion 10), the two processes remain conflated in some provisions (see the report’s draft conclusion 2).
2. While unflinchingly adhering to the two-element approach, the second report occasionally nurtures some conflation between the two elements. For instance, some acts can indeed be constitutive (and/or declarative) of both practice and opinio juris (see report’s draft conclusion 7 and draft conclusion 11). This creates a tension between the universal adherence to the two-element approach and an inclusive understanding of practice and opinio juris reminiscent of what is often witnessed in the practice and scholarship.
3. The rules in which the practice of states or international organizations can potentially coalesce are left undefined (see the report’s draft conclusion 5 and draft conclusion 7 as well as the drafting committee’s draft conclusion 4). This silence leaves open the – very contra-intuitive and technically incongruent – possibility for international organizations to contribute to the formation of rules that only bind states and vice-versa.
4. In case of dissonant individual States practice – that is when the organs of a State do not speak with the same voice, the position adopted so far is to give less weight in given to the practice of that state (see the report’s draft conclusion 8). This leaves unanswered the possibility of the practice of some organs being given more value. This could be the case if the rule concerned pertains more specifically to the behaviour of one type of organ (e.g. the judiciary in the case of rules on state immunity). It also ignores the possibility of resorting to other criteria in case of dissonant practice, like representativeness, powers or delegation. Obviously the same difficulties arise in the case of dissonant practice of organs of international organizations.
5. The notion of specially affected states has been scarcely discussed in the second report whilst it seems to call for much more consideration. This question not only pertains to the material possibility of practice and opinio juris by certain states or international organizations (e.g the practice of landlocked states in connection with the law of the sea) but also to the quantitative variations in the practice generated by States or international organizations (e.g. the practice of a major military power constantly engaged in armed conflicts compared to the practice of a small and peaceful state in relation to international humanitarian law or the use of force).

Whilst the abovementioned expert seminar will revert to some of these lingering ambiguities (most of which the Special Rapporteur is aware of), attention will also be paid to the controversies which the Special Rapporteur will seek to address in his third report. This includes:

1. The role of treaties,
2. Resolutions of international organizations and conferences
3. The practice and opinio juris of international organizations
4. The persistent objector rule
5. Inaction as a form of practice and/or evidence of opinio juris
6. Special, regional and bilateral custom
7. Dissemination and publicity of practice and opinio juris

The orientation of the debates which will take place at Lincoln Law School and in the ensuing months can of course not be prejudged here. Yet, it is anticipated that, given the pragmatic spin given to the work of the ILC, a dilemma is likely to arise and infuse the future discussions related to the third report of the Special Rapporteur. The ILC has obviously embraced a problem-solving, pragmatic and clarificatory approach. Indeed, its ambition has not been to work on the internal aesthetics of the doctrine of customary law but to strip debates of their theoretical intricacies with a view to offering useful guidelines that can ease the identification of customary law by both practitioners and scholars. In that sense, the value of academic hair-splitting has been plaid down in the Palais des Nations, not without good reason. This does not mean, however, that one should let all the conceptual distinctions on the basis of which the doctrine of customary law was – albeit artificially – built collapse completely. Indeed, ironing out of all those distinctions may well be counter-productive as it would make the doctrine even less operable. If, as some of the abovementioned recurring ambiguities seem to make possible, resolutions of international organizations or diplomatic protests or any relevant act or statement can be constitutive or declarative of either practice or opinio juris (or both) by either States or international organizations (or both) and generative of an obligation binding either States or international organisations (or both), one may wonder whether law-applying authorities will actually find in the ILC’s practical toolkit the guidance that is currently promised to them. After all, conceptual distinctions also come with an operative value for those confronted with the question of the identification of customary international law.

A follow-up post will appear on Opinio Juris shortly after the seminar.

Congratulations to two new members of the bench of the International Court of Justice: James Crawford and Kirill Gevorgian.  Also, congratulations to Joan Donoghue and Mohammed Bennouna on their reelection.  The esteemed judges will commence 9 year terms starting in February 2016.

The voting process and requirements for election under the ICJ statute are described here.

Voting also took place for a fifth position on the bench, however one candidate received a majority in the Security Council and the other candidate received a majority in the General Assembly.   As a result, another round of voting is required to finalize the selection for the final position.  This is expected to take place later this month.

Update:  I’ve just seen that Dapo has a great post on the voting over at EJIL talk.   Highly recommended for a more detailed analysis.

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

Africa

• A suicide bomber dressed as a student killed at least 48 people, most of them students, and injured 79 others at a school assembly in the northeastern Nigerian town of Potiskum on Monday, a hospital official said.
• Opposition parties, civil society groups and religious leaders adopted a plan on Sunday for a transitional authority to guide Burkina Faso to elections, after a popular uprising forced longtime president Blaise Compaore from power.

Middle East and Northern Africa

• An Iranian copy of a U.S. reconnaissance drone captured in 2011 has taken its first flight, state news agency IRNA reported on Monday.
• Egypt’s Ansar Beit al-Maqdis, the country’s most active armed group, pledged its allegiance to IS, in a recording posted on its Twitter account.
• Iran, the United States and the European Union began an unscheduled second day of talks today over disagreements blocking the resolution of a confrontation over Tehran’s nuclear program, U.S. and Iranian officials said.
• Kuwaiti government has said that tens of thousands of stateless people in oil-rich Kuwait will be offered citizenship of the impoverished African nation of Comoros to end their decades-old problem.

Asia

• More than 200 boat people held in southern Thailand will be pushed back out to sea, police said on Monday, despite calls by rights group to stop a policy that puts would-be asylum seekers at risk.
• The leaders of China and Japan have held one-on-one talks for the first time since they took office, signalling willingness to put on the back burner a bitter row over disputed islands and Japan’s war-time aggression.
• Chinese and South Korean leaders on Monday signed a “substantial conclusion” of a free trade agreement that will sharply reduce barriers to commerce between the two trading giants, but leaves in place those on rice and automobiles.
• Asia Pacific countries agreed on Saturday to cooperate on the extradition of corrupt officials, enhance asset recovery efforts and establish an anti-corruption transparency network to share intelligence on graft.

Europe

• Britain wants Spain to stay united and any referendum to decide whether Catalonia becomes independent should be done through the proper constitutional framework, Prime Minister David Cameron said on Monday.
• East Ukraine’s rebel stronghold Donetsk was pummeled on Sunday by the heaviest shelling in a month, and the OSCE said it spotted an armored column of troops without insignia in rebel territory that Kiev said proved Moscow had sent reinforcements.
• The European Union’s new foreign affairs chief, Federica Mogherini, has called for the establishment of a Palestinian state, saying the world “cannot afford” another war in Gaza.
• German Chancellor Angela Merkel praised the courageous citizens who peacefully brought down the Berlin Wall 25 years ago, calling the historical day proof that “dreams can come true”.

Americas

• US President Barack Obama has said sending more US troops to Iraq signals a “new phase” in the fight against IS.
• Syrian activists shared a photo on social media on Friday of two children they said were killed in U.S. air strikes on Wednesday night which Washington said targeted an al Qaeda-linked militant faction.

Oceania

• Australia said on Saturday it was pleased with progress on a long-planned free trade agreement with China and that it would be happy to conclude it by next week when Chinese President Xi Jinping visits.

UN/World

• The UN Security Council has imposed sanctions on Yemen’s former president Ali Abdullah Saleh and two allied rebel commanders for threatening the peace and stability of the country and obstructing the political process.

I want to call our London-area readers attention to a very interesting event I’ll be chairing on November 19. The event is entitled “Reinforcing International Criminal Justice: Building on the Work of the 1943-48 UN War Crimes Commission”; here is the description:

As part of Centre for International Studies and Diplomacy’s Research Programme on UN War Crimes Commission which was published in the Criminal Law Forum, CISD will be holding a Panel Discussion on recently disclosed archives from the United Nations War Crimes Commission (1943-48), uncovering a critical gap in the historical narrative of World War II and the development of international criminal law, upon which the international community can draw in view of strengthening the effectiveness of the International Criminal Court and sharpening international responses to contemporary war crimes and crimes against humanity.

And here are the participants:

Overview: Shanti Sattler (by skype)

Shanti Sattler is the assistant director of the War Crimes Project at the Center for International Studies and Diplomacy at SOAS, University of London.

Complementary Justice: Dr Mark Ellis

Mark Ellis is Executive Director of the International Bar Association (IBA) and leads the foremost international organisation of bar associations, law firms and individual lawyers in the world.

Torture: Dr Lutz Oette

Dr Lutz Oette is Counsel at REDRESS and a lecturer in law at the School of Law, SOAS, University of London.

Prosecution of Sexual Crimes and of Low Level Officials: Dr Dan Plesch

Dr Dan Plesch is the Director of the Centre for International Studies & Diplomacy at SOAS, University of London.

Additional information about the event, which is open to the public and does not require registration, is available here. Readers with a particular interest in the UNWCC’s underappreciated work should also check out CISD’s amazing website here.

Call for Papers

• TDM will be publishing a Special Issue on the Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA) and is hereby inviting contributions dealing with the Agreement and the issues raised by any of its chapters. Of particular interest in the investment chapter are clarifications brought to key substantive provisions such as fair and equitable treatment; the definition of investment, which refers to “income generating assets” in the sense used by economists; the fair and equitable standard, including manifest arbitrariness, targeted discrimination on manifestly wrongful grounds and abusive treatment of investors, and its interpretation by the contracting Parties; the definition of acts de jure imperii, and CETA’s detailed language on what constitutes indirect expropriation. Proposals or papers should be submitted directly to the co-editors – Herfried Wöss, Fabien Gélinas, Andrea Bjorklund, and John Gaffney – by January 15, 2015 – contact details on the TDM 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 with a one-paragraph description of your announcement along with hyperlinks to more information.

[Dr Michael Kearney is Lecturer in Law at the School of Law, Politics and Sociology at the University of Sussex.]

On 6 November 2014 the Office of the Prosecutor at the International Criminal Court released the report of her preliminary investigation into the Israeli army’s attack on a flotilla of ships, which, in 2010, had been sailing towards Palestine with the aim of breaking Israel’s naval blockade of the Gaza Strip. As a result of this investigation the Prosecutor is of the belief that during the interception and takeover of the ship, the Mavi Maramara, in which ten people were killed, Israeli soldiers committed war crimes. The Prosecutor has decided that further action by the Court is not currently feasible on the grounds that the crimes in question are not of sufficient gravity so as to warrant a full investigation. The following thoughts will address issues arising from the Report other than the actual war crimes. (Due to the manner in which the Report is formatted, and specifically the repetition of paragraph numbers, references to excerpts from the Report’s Summary are cited as eg ‘para Z ExecSumm’).

I don’t think this is an unexpected or an unreasonable conclusion from the Office of the Prosecutor with respect the gravity aspect of a preliminary examination. What this statement should encourage however, is the immediate ratification of the Rome Statute by Palestine. The analysis demonstrates how, while distant from any possibility of alleged criminals taking to the dock in The Hague, the International Criminal Court can play a crucial role in considering Israel’s policies and practices against Palestinians through the lens of criminal justice.

Continue Reading…

This week on Opinio Juris, Peter continued his commentary on the Zivotofsky hearing and Kristen posted the transcript of the recent hearing in the Haiti Cholera case.

Jens wrote about the DOD’s plans for a Defense Clandestine Service, and welcomed the news that President Obama will seek congressional authorization for the ISIS campaign.

Kevin discussed the passage in the OTP’s Mavi Marmara decision where the OTP finds that Israel is still occupying Gaza, and explained why the Comoros’ appeal will have little effect in practice.

In guests posts, Nikolaos Ioannidis wrote on the complex legal issues surrounding activities in the Cyprus EEZ, and Giacomo Pailli analysed the Italian Constitutional Court’s decision that the ICJ decision in Germany v Italy can be given no effect in the Italian legal system.

Finally, Jessica wrapped up the news and listed events and announcements, and Kevin asked our European readers for advice on PhD applications.

Many thanks to our guest contributors and have a nice weekend!

According to Marlise Simons at the New York Times, Comoros intends to appeal the OTP’s decision not to open a formal investigation into Israel’s attack on the MV Mavi Marmara. That’s its right — but it’s a right without a remedy, because the judges cannot order the OTP to investigate the attack. The relevant provision in the Rome Statute is Art. 53:

1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

…

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

The problem for Comoros is that the OTP refused to open a formal investigation because it concluded that the crimes in question are not grave enough to warrant investigation — Art. 53(1)(b). As a result, although Comoros has the right under Art. 53(3)(a) to ask the Pre-Trial Chamber (PTC) to review the OTP’s decision, the PTC does not have the authority to order the OTP to investigate. All it can do is “request the Prosecutor to reconsider that decision” — to which she would no doubt reply, “thanks, but no.”

The situation would have been very different if the OTP had deemed the crimes adequately grave but refused to investigate because of the “interests of justice” — Art. 53(1)(c). In that case, the PTC would have had the right under Art. 53(3)(b) to review that decision sua sponte and the authority to refuse to confirm the OTP’s decision — which would presumably mean that the PTC could have ordered the OTP to formally investigate. It was thus a very smart move by the OTP to rely on gravity instead of the interests of justice.

No one quite knows what would happen if the PTC ever ordered the OTP to conduct a formal investigation against its will. Such a situation, of course, seems practically untenable. We’ll have to wait a while longer to find out.

For those following the developments in the Haiti Cholera Case, the transcript of the October 23, 2014 Oral Argument is now available.   It can be accessed here:  Oral Argument_Cholera Case 10.23. For my takeaway on this important hearing, please see my recent blog here.

Perhaps not surprisingly, the hearing garnered significant coverage in the main stream press.  At least one article suggested that Judge Oetken “wavered” on UN immunity.  In my opinion, this isn’t a correct depiction of his interventions.  He gave the plaintiffs a day in court, while giving no indication as to how he will rule.  Judge Oetken was clear that the plaintiffs have a steep hill to climb.  Nonetheless, he managed a politically sensitive case adeptly, by carefully examining the scope of the UN’s immunity under the Convention and Privileges and Immunities of the UN, and its obligation to provide appropriate modes of settlement under Article 29 of the same convention.   A decision is not expected before the new year.

Huge news coming from the White House last night and today: the President will ask Congress for specific authorization for military action against ISIS.

This is a welcome development. The White House had previously argued that military action against ISIS was already authorized under the 9/11 AUMF, the Iraq AUMF, or some combination of both. None of these arguments was particularly convincing. The 9/11 AUMF is inapplicable because ISIS was excommunicated from al-Qaeda long ago and is now a competitor to it. The Iraq AUMF is temporally and geographically problematic. The temporal problem stems from the fact that the Iraq war is over and the original authorization died with it. The geographical problem is that it is unclear why a congressional authorization to invade Iraq should give the White House authorization to fight a war in Syria. As a final matter, I’m not sure how mixing and matching the two authorizations helps matters in any meaningful way.

The White House says that Obama still believes that he has authority to engage ISIS even without a new authorization, which complicates how this incident should be viewed as precedent. If the request for authorization is indeed supererogatory, then Obama has at least preserved, for the time being, his broad interpretation of the prior statutory authorizations. Until they are repealed, this is still a relevant issue. However, his decision to go to Congress must carry some weight regardless of what he says about it being discretionary or not.

Will Congress pass an authorization? You bet. Everyone knows that ISIS is a regional threat and a growing threat to the homeland. Furthermore, I find Obama’s timing here somewhat curious. Apparently he was waiting until after the mid-term elections to announce that he was seeking congressional approval. I have no idea why (as a matter of politics). If he had sought authorization before the election and received it, this would have strengthened his image as a foreign policy president dealing with the most pressing and emerging threats. Furthermore, thinking of this as a “new” war helps his image. If it is viewed as an “old” war, he is open to criticism that the situation was caused by his failure to deal with the Iraq War appropriately. On the other hand, if Congress had denied him the authorization, he could have used that denial as a sword against the Republicans going into the mid-term elections.

As Thomas Escritt has reported for Reuters, the OTP has declined to open a formal investigation into Israel’s attack on the MV Mavi Marmara. I will have much more to say about the decision tomorrow; I agree with the OTP’s conclusion but have serious problems with much of its reasoning. But I thought I’d tease tomorrow’s post by noting that, despite the declination, Israel is going to be very angry at the OTP — because the OTP specifically concludes (as part of its decision to classify the conflict as international) that Israel is still occupying Gaza. Here are the relevant paragraphs:

26. Israel maintains that following the 2005 disengagement, it is no longer an occupying power in Gaza as it does not exercise effective control over the area.

27. However, the prevalent view within the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement. In general, this view is based on the scope and degree of control that Israel has retained over the territory of Gaza following the 2005 disengagement – including, inter alia, Israel’s exercise of control over border crossings, the territorial sea adjacent to the Gaza Strip, and the airspace of Gaza; its periodic military incursions within Gaza; its enforcement of no-go areas within Gaza near the border where Israeli settlements used to be; and its regulation of the local monetary market based on the Israeli currency and control of taxes and customs duties. The retention of such competences by Israel over the territory of Gaza even after the 2005 disengagement overall supports the conclusion that the authority retained by Israel amounts to effective control.

28. Although it no longer maintains a military presence in Gaza, Israel has not only shown the ability to conduct incursions into Gaza at will, but also expressly reserved the right to do so as required by military necessity. This consideration is potentially significant considering that there is support in international case law for the conclusion that it is not a prerequisite that a State maintain continuous presence in a territory in order to qualify as an occupying power. In particular, the ICTY has held that the law of occupation would also apply to areas where a state possesses “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.” In this respect, it is also noted that the geographic proximity of the Gaza Strip to Israel potentially facilitates the ability of Israel to exercise effective control over the territory, despite the lack of a continuous military presence.

29. Overall, there is a reasonable basis upon which to conclude that Israel continues to be an occupying power in Gaza despite the 2005 disengagement. The Office has therefore proceeded on the basis that the situation in Gaza can be considered within the framework of an international armed conflict in view of the continuing military occupation by Israel.

I’m not certain I agree with this analysis, though the OTP’s conclusion is far from unreasonable. Regardless, let the fireworks begin…

Here is the question: are there any norms governing how many potential supervisors a student looking to apply for a PhD can or should approach? I get a few emails expressing interest in my supervision each month, and they generally fall into three categories: (1) proposals that are clearly directed toward me, because they discuss my work and propose topics I’ve written about; (2) proposals that have nothing to do with my work or interests and seem to be little more than academic spam; and (3) proposals that seem to be directed towards me, because they discuss my work, but propose topics that are at the very outer edge of my intellectual interests. I have little trouble with the first two categories — proposals in the first tend to be strong; proposals in the second tend to be anything but. It’s the third category that I find difficult to deal with. The students are often more than qualified and the proposals are usually quite good. But I cannot escape a sneaking suspicion that even when the proposals are addressed specifically to me, I am one of many potential supervisors to whom the student has written.

To be honest, I never know what to do in that situation. Given the uncertainties of acceptance and financial support — particularly in the UK — I understand that potential PhD students need to apply to multiple universities and thus need to approach multiple potential supervisors. But I also want there to be some kind of intellectual connection between me and my PhD students; I don’t want to work with someone just because he or she knows my name and sees the “Professor” in my title.

So, European colleagues: how do you handle situations like these? How many simultaneous approaches is too many? Is it kosher to write back to a student and ask how many others they’ve written to? Can I ask for names?

Any advice would be most appreciated…

[Giacomo Pailli is a PhD in comparative law at University of Florence, Italy]

Many readers will recall the judgment of the International Court of Justice in Germany v. Italy, where the Court upheld Germany’s claim of immunity under international law vis-a-vis Italy’s exercise of jurisdiction over certain Nazi crimes that had occurred during World War II. The decision received a lot of commentary, e.g., by Ingrid Wuerth on this blog and by Paul Stephan on Lawfare. Following the decision, the Italian Corte di cassazione, which previously found that immunity could not lie when crimes of such gravity were concerned, had no choice but to bend its head (see, e.g., its decision no. 32139 of 2012, also here, and no. 4284 of 2013). The story seemed settled and closed.

On October 22, 2014, however, the Italian Corte costituzionale wrote a new and surprising chapter with its decision no. 238. Upon referral by the Tribunale di Firenze, and faced again with claims against Germany by victims of Nazi’s crimes committed during WWII, the Constitutional court found that the ICJ holding in Germany v. Italy is contrary to fundamental principles of the Italian Constitution (namely, articles 2 and 24) in that it deprives victims of crimes against humanity of the possibility, altogether, to seek justice and redress for the torts suffered. Thus, the Constitutional court found that no effect to the ICJ decision can be given in the Italian legal system; Italian jurisdiction continues to hold and the Tribunale is free to proceed with hearing the merits of the dispute.

Technically, the Constitutional court applied a long established but (to my limited knowledge) seldom used constitutional doctrine.  It declared that the two Italian laws in question, one ratifying the UN Convention on States’ Immunity of 2004 (art. 3 of the law 14 January 2013, no. 5) and the other the UN Charter (art. 1 of the law 17 August 1957, no. 848) are partially unconstitutional to the extent they would require Italy to abide by the decision of the ICJ, which would force Italy to deny its jurisdiction vis-à-vis crimes against humanity.

I should stress that, as far as the law no. 848 of 1957 is concerned, the effect of this most recent decision is expressly and surgically limited to prevent the ICJ’s holding of 3 February 2012 from having effects within the Italian legal system; otherwise, the law is left completely untouched.

[Nikolaos A. Ioannidis is a doctoral candidate in Public International Law at the University of Bristol]

Αs of October 20, a Turkish survey vessel, the “Hayreddin Barbaros Pasa”, accompanied by a frigate of the Turkish Navy, has been carrying out seismic surveys within the continental shelf and the Exclusive Economic Zone (“EEZ”) of Cyprus.The area of operarions is very close to block 9, where the Italian oil company ENI is drilling for hydrocarbons on behalf of the Republic of Cyprus. Although these activities have sparked rigorous reactions on the part of the Republic of Cyprus, the “Barbaros” has yet to terminate its operations.

Prior to analyzing the ongoing situation, I’ll begin with a short review of the legal regime of the waters under consideration. According to customary international law and the Law of the Sea Convention 1982 (“LOSC”) a coastal state maintains an inherent right to a continental shelf, which extends up to a distance of 200 nautical miles (“nm”) measured from the coast. In addition, a littoral state is also entitled to claim an EEZ of a breadth of 200nm. In these zones, the coastal state enjoys exclusive sovereign rights for the purpose of exploring and exploiting the natural resources, either living or non-living, in its seabed and subsoil (articles 58(1)(a), 77(1)(2) and 81). Consequently, no other state can set forth assertions over the natural resources in another state’s maritime zones. Nevertheless, in both the continental shelf and the EEZ the freedom of navigation shall not be hindered (articles 58(1) and 78) as those waters, in essence, form part of the high seas. This is a trade-off aiming at striking a balance between the viewpoints of the great maritime powers on the one hand (which were reluctant to concede expansion of state jurisdiction over the high seas) and the smaller states on the other hand (which sought extended maritime rights in order to safeguard the natural resources of their sea waters).

The Eastern Mediterranean conundrum

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Recent news reports indicate that the Defense Department is negotiating with members of Congress over plans to augment its Defense Intelligence Agency with a Defense Clandestine Service with about 500 undercover officers. The previous proposal had called for about 1000 officers in the clandestine service, but that proposal was met with substantial criticism.

This is a major development. There are multiple concerns. The first is money — running clandestine operations is not cheap. The second issue is reduplication. The Clandestine Service would be in addition to — and external to — the operations already provided by the CIA and Joint Special Operations Command, though obviously the hope is that there would be some meaningful cooperation between the services.

In the past, there has been much consternation of a blurring between Title 10 and Title 50 activities. Title 10 authorizes military operations conducted by the Defense Department, while Title 50 actions are covert and controlled by the CIA (though could make use of Defense Department assets, as was the case during the Osama Bin Laden raid). The usual occasion for this hand wringing is the increased role of the CIA in paramilitary (or even traditional military) activities. The criticism often heard is that the CIA has strayed far from its original mission as an intelligence agency and is now deploying force in areas of the world where the U.S. is unwilling or unable to publicly acknowledge its use of force.

The current proposal for a Defense Clandestine Service involves the exact opposite. Instead of the CIA getting involved in military activities, this time it is the Defense Department getting involved in intelligence activities. And while it has always been the case that the Defense Department has some intelligence capabilities (which is inherent in the process of target selection), the creation of an entire clandestine service indicates that the Defense Department wants to increase its capabilities in this area. Is this needed or is it a case of rival bureaucracies between the Pentagon and Langley?

One important note. The proposed Service would be clandestine in nature, but presumably not covert. That is an important distinction here. Its operatives would remain acknowledged as agents of the United States, and would presumably remain in uniform as military personnel (although the exact details are not clear). If the operatives were covert and not in uniform, this would pose a substantial threat to the culture and ethos of the uniformed military services — thankfully this is not part of the proposal as I understand it.  However, their operations will still be clandestine (secret) because their true missions would not be publicly disclosed. Although this mitigates some potential anxiety, it does not resolve all of it. Even an increased DoD presence in clandestine operations suggests that the federal government does not have a clear sense of the right dividing line between CIA and military responsibilities.

Transcript of today’s argument here. Scalia, Roberts, and Alito are siding with petitioner (and Congress), Kagan and Sotomoyor are with the Government. Breyer, Ginsburg, and Kennedy didn’t tip their hands clearly one way or the other.

A lot of speech-related framings. Zivotofsky’s lawyer argued that allowing “Israel” as a choice for those born in Jerusalem is a matter of self-identification. Kagan had the best one-liner of the day in response, noting that it is “a very selective vanity plate law” insofar as it doesn’t give Palestinians the same choice. On the other side there was some characterization of the law as imposing “compelled speech” on the Government. Justice Kennedy took care of that with prospective disclaimers that the executive branch could issue, even on the passport itself.

Along those lines, there was this interesting response from Justice Alito to SG Verrelli’s assertion that the statute poses a “very serious risk” of harming US credibility on the sensitive issue of Jerusalem’s status:

Justice Alito: Why would that be so? No matter how this Court decides, everyone will know what the position of the President is. Everyone will know what Congress thought when they passed this legislation. Whatever we do, that’s not going to be changed, and our decision isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.

So why will there be any effect on foreign policy except by people who will misunderstand the situation, either ­­ — either because they really don’t understand it or they will exploit it in some way?

He has a point. One might add that everyone will know that Congress has no idea what it’s doing on foreign policy or anything else, and that “everyone” includes most of the world. Certainly sophisticated foreign government elites — they know that on everything from climate change to the International Criminal Court to human rights, Congress is way, way behind the curve.

That would take care of many contexts but perhaps not this one. There will be some people out there (not sophisticated government elites) who could take the passport policy the wrong way, not knowing that Congress is out to lunch and that US policy has not changed. That’s where the risk comes in. It’s what makes this case less than ideal for adapting the Constitution to the new global dynamic. The Middle East is a throwback to the old world. Arguments like Noah Feldman’s here still make a lot of sense when it comes to Israel-Palestine, even if they don’t make so much sense anywhere else.

But the risk may be small enough that the Court is willing to take it. As Wells Bennett notes, some of the Justices seemed not really to believe the Government’s predictions of dire foreign policy consequences. (On this score it may help them that there doesn’t seem to be a whole lot of back-up evidence.) If the Court rebuffs the executive branch and all hell doesn’t break loose when Zivotofsky and others get their passports, it will undermine all such claims in future cases, and we can expect the Government to get a dwindling bump from the increasingly putative foreign relations power.

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

Africa

• The army takeover in Burkina Faso after President Blaise Compaore’s resignation has prompted protests in the capital and international condemnation. Burkina Faso’s army cleared thousands of protesters from the capital and opened fire at state TV headquarters on Sunday, killing one person, as it sought to restore order following the resignation of President Blaise Compaore two days ago.
• Boko Haram’s leader, Abubakar Shekau, has said the 219 schoolgirls kidnapped from the remote town of Chibok in Nigeria’s northeast in April have converted to Islam and been married off.

Middle East and Northern Africa

• Iraqi Kurdish fighters have joined the fight against Islamic State militants in Kobani, hoping their support for fellow Kurds backed by U.S.-led air strikes will keep the ultra-hardline group from seizing the Syrian border town.
• The Islamic State has killed at least 200 people from the Albu Nimr tribe, which had taken up arms against the fighters, police officers cited by news agencies said; women and children were said to be among those executed over the past 10 days in western Iraq’s Anbar province which has been largely overrun by IS.

Asia

• Bangladesh’s Supreme Court has upheld the death penalty handed down for Jamaat-e-Islami leader, Mohammad Kamaruzzaman, for atrocities committed more than four decades ago, the latest in a spate of rulings against the Islamist party’s officials.
• Sri Lanka has allowed a Chinese submarine and a warship to dock at its port in the capital Colombo, officials said on Sunday, despite concerns raised by India about China’s warming relations with the Indian Ocean island nation.
• Two children of a passenger on Malaysian Airlines Flight MH370 have sued the company and the Malaysian government for damages, the first lawsuit to be filed over the aircraft which disappeared in March.

Europe

• German Chancellor Angela Merkel has warned Britain’s David Cameron that putting limits on immigration from other European Union nations would be a “point of no return” that could sharply increase the risk of Britain leaving the EU, a magazine said.
• Russia has recognized the results of a controversial rebel elections in eastern Ukraine which it said would help re-establish “normal life in the region”; Ukranian president Petro Poroshenko has dismissed the vote as a sham.
• Scotland will break away from the United Kingdom within 20 years, the defeated leader of the Scots nationalists predicted on Sunday, after a poll showed a majority of voters would back independence if another referendum were held today.
• A Dutch team took advantage of a pause in fighting between government forces and pro-Russian rebels in eastern Ukraine on Friday to recover human remains from the Malaysia Airlines MH17 crash site, the Dutch prime minister said.
• Italy said on Friday it would close a sea rescue mission that has saved the lives of more than 100,000 migrants from Africa and the Middle East, a move one rights group warned could lead to a “surge of deaths” in the Mediterranean.

Americas

• The United States has asked for targeted U.N. sanctions to be imposed on Yemen’s former president Ali Abdullah Saleh and two Houthi rebel leaders for threatening the peace and stability of Yemen and obstructing the political process.
• Sierra Leone has accused Canada of discrimination over its decision to suspend visa applications for residents of Ebola-hit nations.
• An Argentine judge has requested that Spain arrest and extradite 20 former Spanish officials, including two ex-government ministers, suspected of human rights violations in the era of dictator Francisco Franco.

Oceania

• In Australia, proposed Abbott government changes to the Migration Act are incompatible with Australia’s international human rights obligations, says a parliamentary committee on human rights chaired by a Liberal senator.

UN/World

• In a report released on Sunday, the Intergovernmental Panel on Climate Change (IPCC) said global warming is causing rising sea levels, a warmer and more acidic ocean, melting glaciers and Arctic sea ice and more frequent and intense heat waves. Secretary General Ban Ki-moon added: “Time is not on our side,” as experts reveal conclusive evidence that humans alter Earth’s climate.
• A new UN draft resolution takes aim at Myanmar’s aggressive campaign to have its Rohingya Muslims identify as a term they reject, urging “access to full citizenship on an equal basis.”

Events

• Junior Scholar Workshop – Law and Human Rights in the Global South: the Role of the State and the Non-State, UBC Law School, June 8-10, 2015. At this point in history it is trite to suggest that the evolving role of non-state actors is transforming the landscape of human rights law. Yet despite repeated calls to incorporate the reality of non-state actor law-making in our accounts of human rights law, scholars are still struggling to incorporate this empirical insight in the emerging literature of law and human rights. How can human rights law be further enriched by a nuanced understanding of the ways in which non-state actors are both protecting human rights and preventing the realization of these rights? And what is the role of the state in protecting human rights in an era where security, immigration control and global trade appear to dominate state political agendas? This Workshop invites submissions on all these themes, including papers addressing the scope, impact and future of human rights as they apply to the corporate world. For full details, including information about application processes, please see the official flier here.

Announcements

• The International Committee of the Red Cross (ICRC) has recently launched the online version of the casebook, How does law protect in War. This new online reference platform in IHL features:
  • Regular updates with new case studies on contemporary armed conflicts
  • An comprehensive IHL outline composed of 14 different themes
  • More than 350 case studies covering past and contemporary armed conflicts
  • More than 20 model IHL courses and pedagogical resources for IHL lecturers
  • More than 300 terms and notions referenced in the online index “A to Z”
  • Full online navigation between theory and practice through internal links and search engine
• The ICRC has also published its IHL Bibliography, 2014-3.
• The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories. More information can be found here. The deadline for submissions is 9 January 2015.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

This fortnight on Opinio Juris, Jens predicted that the Ebola crisis will become a Chapter VII issue at the UN. The theme of the UN and diseases continued in Kristen’s update on a hearing on the UN’s Privileges and Immunities in the Haiti Cholera case. In other UN news, she summarized some of the issues discussed at a meeting on the Security Council’s methods.

Kevin wrote on the Constitutional Court of South Africa’s decision in the Zimbabwe Torture Docket case, finding that international law did not prohibit universal-jurisdiction investigations in absentia.  Kevin also assessed the likelihood of the ICC’s OTP opening an investigation into Chevron’s activities in Ecuador. For those in need of a refresher on these activities, Peter recommended Paul Barrett’s Law of the Jungle.

Peter looked ahead at the Supreme Court argument in Zivotofsky v. Kerry, and pointed out three factors that in his view point to the Court sustaining the Jerusalem Passport Statute, while Julian wondered what China really means when it celebrates the “International Rule of Law”.

Kevin congratulated Dapo Akande on his promotion to Professor of International Law at Oxford, and recommended a post by Mark Kersten on the terror attacks in Canada.

We ran two guest posts: one by Chimène Keitner on the evolving law of foreign official immunity, and one by William Dodge who raised a question on the Convention on the International Sale of Goods.

Finally, Jessica wrapped up the international law headlines (1, 2), and we listed events and announcements (1, 2). Our readers may also be interested in a Lawfare podcast on al-Bahlul, featuring Kevin, Wells Bennet and Steve Vladeck.

Have a nice weekend!