[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He will be in Paris for the climate change negotiations. This is the first in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

The latest episode of the long-running drama known as the UN climate change negotiations begins this week in Paris. Commentators are touting the Paris conference as “historic”, “pivotal,” the “last chance” for the world to address the climate change problem. So what would constitute success?

For the past couple of decades, political scientists and international lawyers have debated how to measure the effectiveness of international environmental regimes. The gold standard of effectiveness is whether an agreement solves the problem that it seeks to address. That would require the Paris conference to prevent “dangerous anthropogenic climate change” – the explicit objective of the UN Framework Convention on Climate Change. No one is exactly sure how much global warming would be compatible with this objective; to the extent severe weather events like the 2003 Paris heat wave (.pdf) or Hurricane Sandy can be attributed to global warming, then perhaps we are already in the dangerous zone. At the Copenhagen Conference, the international community defined the goal less stringently, as warming of less than 2° C above pre-industrial levels. But some think that 2° itself would be too much, arguing for limits of 1.5° or even 1°.

So far, the world has warmed by about 1°, according to the latest data from the UK Met Office. This might suggest that we’ve still got some headroom, measured against the 2° temperature. But the climate system has tremendous inertia, so the effects of past emissions have been only partially realized. Even if we stopped emitting completely right now, the world would still warm by another half degree or more before leveling off. And, of course, global emissions continue to go up rather than down, and peak emissions, let alone zero emissions, are still more than a decade away.

The bottom line is that there is no prospect that the Paris conference will, in itself, put us on a pathway to meeting the below-2° limit. The emission reduction goals that countries have submitted as part of the Paris process (known in climate change argot as “intended nationally determined contributions” or INDCs) instead put the world on a pathway to global warming of around 3° or 3.5°. So if we take problem-solving effectiveness as our measure of success, then we are bound to be disappointed.

But few public policies fully solve the problem that they address; by that standard, virtually every public policy falls short. In my view, the more reasonable test is whether the Paris conference results in a significant improvement over what would have happened otherwise. And by this measure, the Paris conference is likely to be successful.

How should we assess whether Paris is moving us in the right direction? I would suggest four elements:

• First, is the Paris agreement global in its coverage?
• Second, have countries pledged to make significant reductions in their emissions?
• Third, does the agreement establish mechanisms to promote transparency and accountability, so that we will know whether countries do what they say?
• Fourth, does the agreement provide a process to to ratchet up its level of ambition over time?

On the first element, the Paris process can already be counted a success. More than 150 countries, representing more than 85% of global emissions, have come forward with INDCs – that is pledges of what they’re going to do to reduce emissions. Compared to the Kyoto Protocol, which even in its prime covered only about 25% of global emissions, this a major step forward.

Second, the INDCs that countries have submitted represent a significant improvement over current policy. According to a recent analysis by the UN Climate Change Secretariat, they would reduce emissions by about 3 gigatons (GT) CO2e in 2025 and 4 GT in 2030, as compared to the business-as-usual trajectory. Although this falls well short of putting the world on a below-2° pathway, global warming of 3° C would still be better than 3.5°, and 3.5° better than 4°, and 4° better than 5°. So if Paris moves us down the scale of likely warming, then this represents progress.

Third, countries seem likely to agree to a relatively robust system of reporting and review. While transparency in itself does not ensure that countries will comply, at least it would allow the international community to assess whether countries are living up to their pledges, and to exert peer pressure if they don’t.

Finally, countries also look likely to agree to come back every five years to take stock of what’s been achieved and how that compares to the 2° goal, and to put forward new, more ambitious emission reduction plans.

So I am cautiously optimistic about the Paris conference. Of course, one shouldn’t underestimate the capacity of the UN climate change process to seize defeat from the jaws of victory. And the victory would, in any event, be only partial. But if Paris establishes a durable framework that is global in scope, provides for transparency, and pushes to strengthen ambition over time, then, for me, that would be a significant achievement and would constitute success.

Reports suggest that the Japanese government will resume whaling in the Southern Ocean near Antarctica early next year.  This news is causing lots of teeth-gnashing and anger in Australia and New Zealand, whose governments had brought and won a recent International Court of Justice decision finding Japan’s previous whaling program in violation of the International Whaling Convention.  The news also reveals (again) the limits of the ability of international dispute settlement system to change a country’s behavior.

Japan had previously said it would abide by the ICJ decision.  It did so by canceling whaling for one season and ending the program that the ICJ had said did not satisfy the “scientific research” exemption.  But Japan’s resumption of its whaling program signals that it believes its new program is consistent with the “scientific research” requirement.  I believe that it has the right to resume a new whaling program under the scientific research exemption without violating the ICJ’s judgment.

Of course, it might turn out that the new program is also in violation of the IWC’s “scientific research” provision, but the ICJ decision from 2014 does not require Japan to completely give up all whaling.  Indeed, although Australia sought a remedy from the ICJ requiring Japan to “refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article VIII..,” the ICJ simply noted that Japan was already under this obligation (see para. 246). Therefore, the ICJ explained: “It is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII of the Convention.”  It looks like Japan has done so, and it has now granted more permits under Article VIII.

Australia’s Environment Minister has said that Japan cannot “unilaterally” decide that its new whaling program is in compliance with Article VIII of the IWC.  Actually, legally speaking, Japan can do just that.  The only legal remedy Australia is left with is another ICJ lawsuit.  But that is going to be a problem since as of October 6, 2015, Japan has withdrawn from the compulsory jurisdiction of the ICJ with respect to “any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.”  I think Australia might simply argue that Japan is in violation of the previous ICJ decision, but this will be a tricky argument on jurisdiction (and will take another five years to resolve).

So what’s the lesson here? It is risky to place too many of your eggs in the “international court” basket, even when you are suing a liberal, generally international law-abiding country like Japan (Philippines, take note!). It is too easy to either ignore or simply work around the obligations of international courts in these types of cases. And, importantly, while the cost to a country’s reputation may be severe when it violates or works around an international court order, reputation costs are seldom high enough to actually change a country’s behavior.  (For a very good summary of this whole saga, see Philip Clapham’s essay here).  Australia and New Zealand should probably think about some other remedies besides international court litigation.  And I guess the Whale Wars truce is over.

Announcements

• The coordinators are pleased to announce the establishment of the Ghent Rolin-Jaequemyns International Law Institute (GRILI). The Institute builds on a long tradition in the area of international law at Ghent University and brings together ca. 30 faculty members and doctoral and post-doctoral researchers. Its activities span the entire realm of public international law, ranging from the law of armed conflict and international human rights law, to the law of the sea, international environmental law, international criminal law, and international economic law, as well as the history of international law. GRILI strives to be a vibrant and recognized centre of academic excellence, generating qualitative and innovative contributions to existing legal scholarship. The Institute combines doctoral research and contract research. Its members provide consultancy to (national, European and international) governmental and non-governmental bodies on issues of international law and contribute amicus curiae briefs to legal proceedings. The Institute frequently organizes lectures, workshops and international conferences. An overview of these events, including the ongoing International Order & Justice Lectures Series, can be found here. For further information on the Institute’s membership, activities, events and research output, please visit our webpage at http://www.grili.ugent.be/ or follow us on twitter (@GRILI_Ugent).

   

Calls for Papers

• The Bernard and Audre Rapoport Center for Human Rights and Justice at The University of Texas at Austin, School of Law has extended the deadline for submissions for our interdisciplinary conference on the theme “Inequality and Human Rights,” to be held April 7 – 8, 2016. The new deadline is December 13, 2015.
• The organizers are pleased to announce the call for papers for the Conference “Law Between Global and Colonial: Techniques of Empire“, hosted by the Erik Castrén Institute of International Law and Human Rights on 3-5 October 2016 in Helsinki. The conference will close the four and a half-year period of the Finnish Academy research project on “International Law, Religion and Empire” headed by Martti Koskenniemi, supported by Paolo Amorosa, Mónica García-Salmones, Manuel Jimenez and Walter Rech as research fellows. The conference proposes to discuss the legal languages and techniques through which colonial powers ruled non-European territories and populations throughout the modern age.  The aim of the Conference is to examine in detail the juridical practices and discourses of colonial powers when they exercised their supremacy over colonial subjects and disciplined them. Keynote speakers: Lauren Benton, Isabel. V. Hull, Luigi Nuzzo. The deadline for submitting abstracts is March 1st, 2016. For the full call for papers please refer to the link below. For further information contact the organizers at monica [dot] garcia [at] helsinki [dot] fi or paolo [dot] amorosa [at] helsinki [dot] fi.

Events

Our previous events and announcements post 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.

I’ve received some very good (though pretty much all critical) comments to my original post defending the consistency of the recently enacted U.S. Space Act with the Outer Space Treaty. I will concede that my reading of the statute and treaty is not exactly a cut and dried simple legal issue. But I think too much of the reporting on the Space Act has made it seem like it is a clear violation the other way.  (See here, here, and here.)

One thing that few of these articles note is that the U.S. House of Representatives Committee on Science, Space, and Technology did study the question of the Outer Space Treaty when it reported out this legislation.  They reasonably concluded that allowing private companies to exploit celestial bodies is not a “national appropriation” within the meaning of the Outer Space Treaty.  Indeed, this has long been a position of the United States. For instance, the House Committee noted that in 1980, the U.S. State Department’s Legal Adviser explained that

`The United States has long taken the position that Article 1 of that treaty [Outer Space Treaty] . . . recognizes the right of exploitation. We were and are aware, however, that this view is not shared by all States or commentators, some of whom take the position that the nonappropriation provisions in Article [II] of the 1967 Treaty preclude exploitation of celestial natural resources and the reduction to private property.”

It is also worth noting that State Practice seems to lean in favor of allowing the use of materials from outer space. Again, from the Committee’s discussion:

State practice is consistent with finding that exploration and use of outer space includes the right to remove, take possession, and use in-situ natural resources from celestial bodies. The United States, Russia, and Japan have all removed, taken possession, and used in-situ natural resources. These activities have never been protested by a State party to the treaty or judged in a court of law to be in violation of the Outer Space Treaty.

Indeed, some moon rocks taken by the Russian government have actually already been sold to private parties at Sotheby’s auctions in recent years.

Finally, the Committee cites Article VI of the Outer Space Treaty as recognizing that non-governmental entities can carry on activities in outer space, as long states bear international responsibility for those private activities.

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

I will again note that this reading of the Outer Space Treaty is hardly slam-dunk, but I think it is a quite reasonable one that is at least as persuasive as the interpretation offered by the critics.  I think it is worth noting that State practice leans in favor of the U.S. here, which is not decisive, of course, but it is helpful nonetheless.  I also don’t think the U.S. ever would have committed itself to a flat out ban on commercial exploitation of outer space when it signed the Outer Space Treaty.

In any event, we will see how things spin out. As I noted, it is possible we will one day need an “Authority’ like that created for the international seabed, but not just yet.

Happy Thanksgiving.  As those of us in the United States celebrate our Thanksgiving holiday, it is of course imperative to remember that many people outside our country are facing serious problems and perilous circumstances.

In response to the terror attacks in Paris (and in Mali), the government of UK Prime Minister David Cameron has once again called on British lawmakers to authorize the use of military force in Syria. Cameron released a document that not only articulates the strategic necessity for military action against ISIS, but also outlines the Cameron administration’s legal position regarding the legality of the proposed strikes under international law. Unsurprisingly, the argument relies on the fact that the Syria government is unwilling or unable to stop the ISIS threat.

The following excerpt is taken from a longer document released by Cameron and sent to the British Parliament’s Foreign Affairs Committee. Here is the critical section dealing with international law:

There is now a UN Security Council Resolution. Resolution 2249 (of 20 November 2015) has now made a clear and unanimous determination that ISIL “constitutes a global and unprecedented threat to international peace and security”, and called upon Member States to take “all necessary measures … to prevent and suppress terrorist acts committed specifically by ISIL… and to eradicate the safe haven they have established over significant parts of Iraq and Syria.” There is a clear legal basis for military action against ISIL in Syria. The legality of UK strikes against ISIL in Syria is founded on the right of self-defence as it is recognised in Article 51 of the UN Charter. The right to self-defence may be exercised individually where it is necessary to the UK’s own defence, and collectively in the defence of our friends and allies. This reflects the multi-faceted and evolving threat that ISIL poses, and the response that is required to bring that threat to an effective end.

Collective Self Defence of Iraq

On 20 September 2014 the Government of Iraq wrote to the President of the UN Security Council seeking international assistance to strike ISIL sites and military strongholds, in order to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces and enable them to regain control of Iraq’s borders. The main basis of the Global Coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. The UK is already supporting the Coalition’s efforts to degrade ISIL in Syria as a necessary aspect of effectively bringing an end to ISIL’s armed attack on Iraq. On 21 October 2014, the Defence Secretary announced to Parliament that he was authorising flights of manned and unmanned surveillance aircraft over Syria to gather intelligence against ISIL. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria and their ongoing attack on Iraq and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq.

In light of these considerations and the scale of the threat posed by ISIL, military action that is necessary and proportionate to bring an end to ISIL’s attack on Iraq is justified in accordance with the right of collective self-defence that is preserved in Article 51 of the UN Charter. The Coalition has relied on this legal basis for military action in Syria. Numerous States, including the USA, Australia, Canada and France have written to the UN Security Council explaining that they are taking action on the basis of the right of collective self-­defence. In accordance with the requirements of Article 51 of the UN Charter, the UK notified the UN Security Council that it was taking military action as part of the Coalition’s efforts in the collective self-defence of Iraq by a letter of 25 November 2014. The underlying considerations which justified collective self-defence of Iraq for UK activity in Syria in 2014 remain today. The collective self-defence of Iraq provides a clear legal basis for the UK to increase its contribution to the Coalition’s efforts against ISIL in Syria by taking direct military action itself, provided such activity meets the ongoing requirements of necessity and proportionality.

ISIL’s threat to the UK and its attack on our Allies and partners

The threat from ISIL continues to evolve and now goes far beyond Iraq and Syria, as is all too clear from the external attack planning disrupted by the precision UK strike of 21 August (as I reported to the House on 7 September) and the tragic events of 13 November in Paris. For several months now, UK security agencies have been monitoring the development of ISIL’s external attack planning capacity, which seeks to target both the UK and our allies and partners around the world. Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks. It is clear that ISIL’s campaign against the UK and our allies has reached the level of an “armed attack” such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL. As well as the collective self-defence of Iraq, there is therefore an additional legal basis to take action in our own self-defence and that of other allies and partners as well, where they request our assistance. The use of force in self-defence is of course limited to what is necessary and proportionate and we have made clear that we will act at all times in accordance with the law.

Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources.  Here is some key language from the bill, which President Obama is expected to sign.

Ҥ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.

This provision has been criticized as violating U.S. obligations under the Outer Space Treaty of 1967.  Chief among those obligations is Article I of that treaty:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

There is also Article II, which seems to restrict claims of sovereignty in outer space.

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.

Margulies:

Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

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

Africa

• Mali’s president has questioned claims that al-Mourabitoun, an al-Qaeda linked group, was responsible for last week’s assault on a luxury hotel in the capital Bamako.
• Plans by the Senegalese government to prohibit women from wearing full-body veils, amid growing security concerns, have sparked debate within the majority-Muslim country.
• Al Jazeera investigates allegations of apartheid-style extrajudicial killings in South Africa.

Middle East and Northern Africa

• Russian air strikes in Syria have killed over 400 civilians since September this year, monitoring groups say; the UK-based Syrian Observatory for Human Rights (SOHR) said the death toll from September 30 – when the strikes were launched – until November 20 stood at 403 civilians, a figure that includes 97 children.
• A Belgian citizen of Moroccan origin suspected of playing a role in the Paris attacks has been arrested in the southern Turkish city of Antalya, two Turkish officials told Al Jazeera.

Asia

• Southeast Asian nations have established a formal community that attempts to create freer movement of trade and capital in an area of 625 million people with a combined economic output of $2.6 trillion.
• South Korea said planned military firing drills would go ahead on Monday near a disputed maritime border with North Korea, which has threatened “merciless retaliation” if Seoul fires into its waters on the anniversary of a 2010 bombing that killed four people.
• A new road linking the Afghan capital with a trade hub near Pakistan has been stuck in the slow lane since a state-owned Chinese company took the contract to build it two years ago, bedeviled by militant attacks and accusations of mismanagement.
• Bangladesh executed two opposition leaders on Sunday for war crimes committed during the 1971 war to break away from Pakistan, a senior police official said, in a move likely to draw an angry reaction from supporters.
• Hong Kong’s pro-democracy movement got a boost on Monday with about eight candidates involved in crippling protests last year winning office at district-level elections, while some veterans from both sides of the political divide suffered defeat.
• The United Nations voiced alarm on Friday about the fate of nine North Koreans feared to have been deported from Vietnam via China back to their homeland, saying they might face torture or even execution.

Europe

• Belgian security forces have carried out multiple raids across the country, arresting 16 suspects believed to have ties to the deadly attacks in Paris.
• A former senior intelligence officer in Britain’s MI6 intelligence agency says air strikes against the Islamic State of Iraq and the Levant (ISIL) will “absolutely not” eliminate them.
• A metal capsule containing over 20,000 wishes for the future was stored away in a Sarajevo museum on Saturday to mark the 20th anniversary of the peace deal that ended the Bosnian war but left the country deeply divided and dysfunctional.

Americas

• The Washington D.C. Holocaust Museum has called on to the US not to turn away Syrian refugees; the museum expressed concern over refugee crisis, called on politicians to “not turn” their backs on Syrians fleeing conflict.
• Additionally, rights groups have criticized American politicians’ comments about Muslims as a debate over the future of Syrian refugees in the United States intensified in the wake of the Paris attacks.
• Colombia’s government said on Sunday it will free 30 jailed members of the Marxist FARC rebel group as a gesture of goodwill as the two sides negotiate an end to more than five decades of war.
• The U.S. Navy will likely carry out another patrol within 12 nautical miles of artificial islands in the South China Sea before the end of the year, a U.S. Navy official said on Friday.

Oceania

• The Sydney Morning Herald provides two charts showing Australia’s “human rights crisis.”

UN/World

• All able states should join the fight against Islamic State in Syria and Iraq and redouble efforts to prevent further attacks by the militant group, the United Nations Security Council said on Friday.
• United Nations Secretary-General Ban Ki-moon on Friday announced plans for a summit in March on resettling millions of people who have fled Syria as he expressed concern at “misplaced suspicions about migrants and refugees.”
• The World Health Organization’s failure to sound the alarm until months into West Africa’s Ebola outbreak was an “egregious failure” which added to the enormous suffering and death toll, global health experts said on Monday.
• The new United Nations envoy to Libya on Sunday urged warring factions to sign up to a previously negotiated agreement for a unity government, saying there could be consultations but no changes to the draft.
• FIFA’s ethics committee says it completed its investigation into the conduct of FIFA President Sepp Blatter and UEFA head Michel Platini and requested sanctions against both of them.

Announcements

• Guest Researchers – Focus on the Environment and the International Judiciary: PluriCourts invite researchers in the field of law, political science, and philosophy with a focus on the environment and the international judiciary to apply for visiting research fellowship. The positions as guest researchers can vary between 3 to 12 months. We encourage applicants to apply as soon as possible and will prioritize applications for the academic year 2016. PluriCourts allocate financial support to selected researchers with a topic of special interest for the centre, but without other funding for travel and accommodation. Please indicate in the application the need for financial support (only for stays between 6 -12 months). For more information about the positions and how to apply, visit PluriCourts’ website.

Calls for Papers

• The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 17(1) by January 31, 2016. MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries can be directed to law-mjil [at] unimelb [dot] edu [dot] au. For more information, please visit the website here.
• The ILA British Branch Spring Conference 2016 on “Non-State Actors and Changing Relations in International Law” will be held at Lancaster University on 8-9 April 2016. This conference will examine the changing role of non-state actors in international law and their impact on law-making, obligations, responsibility and dispute settlement. We welcome papers on this subject, which might include, but are by no means limited to: (1) the nature and position of non-state actors within the international legal system; (2) their role with respect to the sources of international law, which may include their role in the formation of custom and in the conclusion of treaties; (3) the source and scope of obligations for particular non-state actors, such as businesses or corporations (e.g. sanctions, human rights, modern slavery), sporting bodies and organised armed groups; (4) the potential responsibility of these actors and its relationship to state responsibility; (5) the position of these actors in dispute resolution and enforcement mechanisms, whether judicial institutions, organs of international organisations or treaty regimes; (6) the special roles of non-state actors in particular areas of international law, such as international environmental law, international economic law (including investment law), the international law of armed conflict, international human rights law and international criminal law, amongst others. For further details see here. Abstracts of no more than 500 words should be submitted to j [dot] summers [at] lancaster [dot] ac [dot] uk by 31 January 2016.

Events

Our previous events and announcements post 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.

I had the honor and pleasure of testifying today before the U.S. Senate’s Environment and Public Works Committee.  The topic of the hearing was “Examining International Climate Negotiations” and the upcoming conference in Paris. My own contribution argued that an agreement with legally binding emissions reduction obligations should be submitted to the Senate as a treaty rather than as a sole executive agreement.  I further argued that the Senate should require to the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments.

You can watch the oral testimony and the questions below on C-SPAN (my testimony starts around the 11’40” mark. Almost all of the testimony has to do with the substantive merits of such an agreement (about which I express no opinion), as opposed to the legal aspects. So I will go ahead and declare victory for my argument by default.

A couple of years ago, I praised the winning design for the ICC’s permanent home but acknowledged that I preferred a different one. I’m happy to report that I was wrong, at least aesthetically: the Court’s new headquarters are absolutely beautiful. Here are a few photos:

You can tell the Court’s staff is eager to move into their new home, because there is a large sign in the current building’s foyer that is actually counting down the time. And I don’t blame them — the complex really is an architectural masterpiece.

That said, I confess that I still find the move a bit troubling, both because of the cost — approximately €190,000,000, though the ICC website dedicated to the project is strangely silent about finances — and because the grandeur of the new headquarters far surpasses the Court’s accomplishments to date. We can only hope that the Court grows into its new home — I would hate to see such magnificence wasted on rebels like Ongwen and deposed leaders like Gbagbo. This is the kind of dock suitable for the Bushes and Blairs of the world.

PS: On Facebook, my friend and SOAS colleague Stephen Hopgood — author of the must-read The Endtimes of Human Rights — criticises the “distant, imperious and abstract concept of justice” this kind of minimalist High Modernist architecture “symbolise[s] for the peoples of the whole, diverse world.” I think that’s an excellent point.

As I was researching a new essay on complementarity, I stumbled across a fantastic article in the Chinese Journal of International Law by Paidrag McAuliffe, a Senior Lecturer at the University of Liverpool School of Law. Here is the abstract of the article, which is entitled “From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-sharing Policy as an Example of Creeping Cosmopolitanism”:

Though it was initially presumed that the primary role of the International Criminal Court (ICC) would be a residual one of monitoring and ensuring the fulfilment by the State of its obligations under the Rome Statute, it has over time moved towards a more activist “burden-sharing” role. Here, the Office of the Prosecutor initiates prosecutions of the leaders who bear the most responsibility for the most egregious crimes and encourages national prosecutions for the lower-ranking perpetrators. Since at least 2006, the Prosecutor has committed to a formal policy of inviting and welcoming voluntary referrals as a first step in triggering the jurisdiction of the Court. The judges on the Court have approved these referrals, while the broader academic and activist communities welcomed this more vertical relationship with national jurisdictions and, significantly, have provided the intellectual justifications for it. Burden-sharing, a concept unmentioned at the Rome Conference establishing the ICC, is presented as an unproblematic, natural and organic emanation from the Statute. This article argues that this development was not in fact inevitable or mandated by the Rome Statute. It was chosen, and in justifying this choice, familiar modes of cosmopolitan-constitutionalist treaty interpretation fundamentally premised on the field’s virtue and indispensability have operated to enable a Court established as a residual watchdog to become a workhorse in individual situations by assuming the preponderance of responsibility for combating impunity.

I found myself repeatedly nodding my head in agreement while I read the article, particularly when it discussed how judges, prosecutors, scholars, and activists have relied on ambiguities in treaty interpretation to push a particular activist agenda at the ICC. The article reminds me of the critical ICL scholarship by two of my favourite scholars, Fred Megret and Darryl Robinson — both of whom the article cites quite often.

The article is a must read for anyone interested in the ICC and ICL scholarship more generally. You can find it here.

Ilya Somin has updated his post at the Volokh Conspiracy to include my critique, and his response to my critique. I just want to add two more points to our little debate on the domestic legal effect of the North Atlantic Treaty’s Article V collective self-defense clause before we put it to rest. (For those of you looking for a broader discussion on the Paris attacks than our legal parsing, I recommending joining this Federalist Society teleforum today here at 2 p.m. EST).

1) Ilya argues that “[w]hile the use of force is discretionary under Article 5, treating an attack on an ally within the designated area as if it were an attack on the US itself is not… And in the event of an enemy attack on the US itself, the president has the legal authority to use force of his own volition, without additional congressional authorization”.

This is an interesting point, and I agree with Ilya that the President can use military force to defend the U.S. without going back to Congress.  So Ilya is reading Article V as a pre-authorization to the President to defend treaty allies with military force as if it were an attack on the United States.But this reading calls into question how much military force the President can use under this “pure” self defense rationale.  Surely, President Bush was authorized to defend U.S. territory on 9/11 and its immediate aftermath.   But did the 9/11 attacks also authorize the President to start bombing, and then to invade Afghanistan, without going back to Congress?  In other words, does the self-defense rationale allow all offensive actions against the attacker up to and including invasion and occupation of another country?

Similarly, do the Paris attacks(assuming Article V were invoked) allow President Obama to launch military strikes (and maybe invade and occupy) Syria?  Surely, the President could have ordered U.S. forces to defend France without Congress. But I’m just not sure the Article V self-defense rationale gets Ilya all the way to a full-scale war on ISIS.

2) On a historical note, Ilya takes issue with my characterization of the legal rationale for Article V as allowing the U.S. and its allies to comply with the UN Charter’s rules on the use of military force.  He argues that “[t]he true main purpose of Article 5 is to commit the signatories to a system of collective defense against attack…”

I don’t disagree that this was Article V’s “main” purpose, but my original post was focused on the legal purpose of Article V.  On that front, I think it is safe to say Article V was about ensuring NATO was in compliance with the then-new UN Charter, and much less about re-allocating war powers under the U.S. Constitution.

I should hasten to add that I am in favor of a robust military response to the Paris attacks (actually, I was in favor of a robust response before the Paris attacks too).  And unlike Ilya, I think the President has broad powers under the Constitution to use military force without explicit congressional authorization.  I just don’t think collective self-defense treaties like Article V are needed to authorize unilateral presidential action against ISIS.

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

Africa

• Judges at the International Criminal Court on Friday granted early release to convicted war criminal Germain Katanga, making the Congolese warlord, sentenced to 12 years in prison in 2014, the first ICC convict to be freed.
• The Congo Basin in Africa, the world’s second-largest tropical forest, is facing a growing threat of deforestation carried out to clear the way for palm oil plantations.
• At least 22 people were killed in a string of raids on villages in Central African Republic this week, a local official and state radio said on Friday, as an escalation of violence threatened to derail a visit by the pope and crucial elections.

Middle East and Northern Africa

• Two suicide bombings claimed by ISIS in a predominantly Shia residential area of southern Beirut have killed at least 41 people and injured 200 others, according to the Lebanese health ministry.
• Islamic State said one of its militants blew himself up at the funeral of a pro-government Shi’ite Muslim fighter in Baghdad on Friday, killing at least 18 people and wounding 41.
• Syrian opposition activists have reacted to calls from world leaders for the country to hold elections within 18 months and implement an immediate ceasefire, saying that – for now – the proposed plans are nothing more than talk.
• Saudi Arabia’s foreign minister said on Saturday that his country would continue to support Syrian rebels if President Bashar al-Assad could not be removed through a political process.

Asia

• The Japanese and Philippine leaders will agree this week on a deal paving the way for Tokyo to supply Manila with used military equipment, possibly including aircraft that could be deployed to patrol the disputed South China Sea, sources said.
• The International Labour Organisation (ILO) said on Friday 80 percent of export-oriented ready made garment (RMG) factories in Bangladesh needed improvement in fire and electrical safety standards despite a government finding most were safe.
• North Korea has declared a no-sail zone off its east coast in a sign it could be preparing a missile launch, Yonhap news agency reported on Sunday.
• Regional tensions over the South China Sea and security concerns after the attack by Islamist militants on Paris could eclipse efforts by Pacific-rim leaders at APEC this week to boost trade and growth across a region of around 3 billion people.
• An Indonesian court sentenced a drug leader from Hong Kong to death on Friday for possession of more than 860 kg (1,900 lb) of methamphetamines in one of the country’s biggest drug busts in years.

Europe

• French authorities have started to name the attackers who terrorized Paris over the weekend and five have been identified as French nationals, indicating that radicalization of its own citizens is one the biggest threats to France’s security.
• French warplanes pounded Islamic State positions in Syria on Sunday as police in Europe widened their investigations into coordinated attacks in Paris that killed more than 130 people.
• The European Commission has formally authorized the temporary reimposition of border controls by Sweden and Germany’s extension of frontier checks to help get a grip on a large influx of asylum seekers, the EU executive said on Friday.

Americas

• To cheers from a large crowd of Cuban migrants, Costa Rica on Saturday re-opened its border with Panama after a sudden tightening in its immigration policy had left more than 1,200 of them stranded there.
• Nicaragua on Sunday closed its border with Costa Rica to hundreds of Cubans headed for the United States, stoking diplomatic tensions over a growing wave of migrants making the journey north from the Communist-ruled island.
• U.S. President Barack Obama vowed on Sunday to step up efforts to eliminate Islamic State and prevent more attacks like those in Paris, while urging Russia’s Vladimir Putin to focus on combating the jihadist group in Syria.
• The US defence department has announced the release of five Yemeni men held at the Guantanamo Bay prison camp in Cuba.

Oceania

• Australia’s human rights record has been scrutinised by more than 100 countries at the UN, with the treatment of asylum seekers and Indigenous people drawing particular criticism.

UN/World

• U.N. Secretary-General Ban Ki-moon will visit North Korea’s capital Pyongyang this week, South Korea’s Yonhap news agency reported on Monday, though there was no confirmation from either the United Nations or the South Korean foreign ministry.
• The outgoing United Nations envoy to Libya, Bernardino Leon of Spain, on Thursday said he would seek a “full clarification” of a newspaper report that the United Arab Emirates was shipping arms to Libyan factions in violation of a U.N. arms embargo.

Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V’s collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama’s ongoing use of military force against ISIS could be “legalized” as a matter of U.S. constitutional law.  Here is Ilya:

Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.

I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best.  But I am not sure I agree with him that Article V should be read as a “pre-authorization” for the President to use military force without going back to Congress for a specific authorization.

Here is the full text of Article V:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .

I agree that the horrible Paris attacks would constitute an “armed attack” on a member of NATO “in Europe or North America.”  But I don’t think Article V requires the other NATO members to provide military assistance.  Rather, “if such an armed attack occurs,” a NATO member “will assist the Party so attacked [France]…by taking forthwith…such action as it deems necessary, including the use of armed force.” (emphasis added).

I read this language as requiring the U.S (for instance) to assist the attacked party (France), and that this assistance could “include the use of armed force.”  But I don’t think it has to.

Moreover, Article IX of the North Atlantic Treaty states that “[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” (emphasis added).  I read this as requiring Parties to carry out provisions like Article V “in accordance with their respective constitutional processes.”  If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress.  This might actually happen. Republican presidential candidate Jeb Bush actually called for a “declaration of war on ISiS” today.  

Of course, if you believe (as I do) that the President has independent constitutional authority to use military force without Congress in most circumstances, than all Article XI does not limit the President much.

In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers.  The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are).  Invoking Article V should allow the U.S. to use armed force to assist France consistently with the UN Charter.  That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter.  But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.

Sponsored Announcement

• EIUC and its partner universities Birzeit University (Palestine), Saint Joseph University (Lebanon), International University of Rabat (Morocco) and Ca’ Foscari University (Italy) are proud to present to you the second edition of the Master in Democratic Governance – Democracy and Human Rights in the Mena Region (DE.MA), starting in January 2016. DE.MA is a multidisciplinary curriculum offering courses in law, political science, sociology and other fields relevant to the study of democratic governance and Human Rights. Open to professionals and graduates, it will combine a theoretical and practical approach and it will deliver a professional Master’s degree (60 ECTS) from Ca’ Foscari University, Venice. The first semester from January to April 2016 is held at the EIUC premises in Venice and the second one from April to July 2016 takes place in one of the partner universities in the Master’s Consortium.

  This is meant to play an active role in the ongoing debate about the principles underpinning the transition of political regimes to democracy. It aims at:

  • Creating high-profile experts in the fields of democratic governance and the protection of human rights, allowing them to act as promoters of a process leading to the affirmation of the democratic principles;
  • Fostering the creation of an élite group of people committed to the promotion of democratic institutions;
  • Building a network of experts to be active in political institutions, in national and international, governmental and non-governmental organizations in the Region.

  Interested? Here are the practicalities: Registration deadline: 16 Nov 2015; First semester dates: 4 January 2016 to 15 April 2016; Second semester dates: from 18 April to 15 July 2016 Language: English, (knowledge of French and Arabic recommended); Teaching method: Face-to-face teaching. Tuition Fees: 3.750 euro. Tuition Waivers/Scholarships: EIUC offers financial support in the form of a partial contribution towards living expenses and/or a full or partial tuition waiver. This type of financial support is awarded to a limited number of students on the basis of academic achievement, need and geographical distribution. More information on the DE.MA, the professors and the programme can be found here.

Announcements

• The Department of the Navy, Office of the General Counsel has an open billet for a GS 15-equivalent attorney to join Strategic Systems Program’s International Law team. The details of the billet are attached and are accessible via this link. The job is focused on treaty implementation and compliance (emphasis on arms control treaties), foreign military sales, and U.S. export controls. The ad closes on Monday, November 16th.

Calls for Papers

• The ASIL International Economic Law Interest Group will hold a works-in-progress workshop on Friday, January 29, in Philadelphia, at the Wharton School.  If you are interested in presenting a paper at the workshop, please submit an abstract by the end of the day on November 31st, 2015 to submissions [at] asil [dot] org. Please place “IECLIG Works in Progress submission” in the subject line of your submission. Abstracts can range from a paragraph in length to a page, and should include the author’s name and institutional affiliation. Papers should relate to the study of international economic law, broadly construed, be it related to private ordering, trade, investment, finance, or any of the other subjects that constrain the way that business is done across borders. The workshop is designed to offer a resource for those who cannot attend our December Heidelberg workshop done in conjunction with ESIL, to help scholars prepare for the February publication cycle, and to continue to broaden and deepen the interest group’s intellectual community. Papers selected for presentation will need to be submitted on January 15th; they will be circulated to the attendees of the workshop.  Attendees will accordingly be able to comment on all of the papers during the workshop, and may also be given responsibility to lead the discussion of one of them in particular. One need not present a paper or comment on a paper to participate. As is the norm for workshops sponsored by ASIL interest groups, participants will need to cover their own travel expenses.  Please do not hesitate to contact us should you have any questions about the workshop or paper submissions.

Events

Our previous events and announcements post 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.

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban — and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US’s notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller:

International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.

Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”

Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”

The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”

[snip]

Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.

The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.

MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”

On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”

I want to focus here on the claim that MSF “admitted” in its November 5 report that it “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.”

Quite simply, that is a lie. MSF makes no such admission in the report.

We can begin with September 28. Prior to that date, most of the wounded combatants in the MSF hospital in Kunduz were government soldiers and police officers. As of September 28, however, the balance shifted to Taliban combatants:

As was the case since the opening of the Trauma Centre, the vast majority of the wounded combatants were observed to be government forces and police. In the week starting 28 September, this shifted to primarily wounded Taliban combatants… As far as our teams are aware, after this time [the afternoon of the 28th], no more wounded Afghan government forces were being brought to the Trauma Centre.  (p. 4).

The next day, faced with an excessive number of patients, MSF met with the Taliban:

MSF met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged and for those who required nursing follow-up to be referred to the MSF Chardara medical post (p. 5).

At this point — September 29 — half of the wounded in the hospital were wounded Taliban fighters (p. 5). Patients then began to leave the hospital the next day, September 30:

Starting this same day a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative or whether there were general concerns about security as rumours were circulating of a government counter-offensive to reclaim Kunduz city. At the same time as patients were being discharged from the hospital, new patients were being admitted (p. 5).

The MSF report is careful not to identify whether the discharged patients were civilians or combatants. But there is no indication in the report that MSF agreed with the Taliban “to discharge Afghan civilian patients”; that MSF actually discharged civilian patients because of any such agreement; or that discharged civilian patients were replaced by “wounded rebel soldiers.” Literally none.

Indeed, everything in the report points to precisely the opposite conclusion: namely, that MSF convinced the Taliban to remove wounded rebel fighters from the hospital to open beds for new patients. The patients that left the hospital were not “removed by MSF”; the report makes clear that they “discharged themselves,” in some cases “against medical advice.” Are we supposed to believe that MSF ejected civilian patients against the advice of its own doctors and then dishonestly claimed the patients left voluntarily? That’s Ben Carson conspiracy land.

Did some civilians voluntarily leave the hospital because fear of the fighting? Perhaps. But it’s difficult to imagine why civilians would trade the relative security of a well-marked civilian hospital for the uncertainty of weathering intense urban fighting in their homes — especially if leaving was “against medical advice.” It is far more likely that the wounded who discharged themselves were Taliban fighters worried about their safety — even in a civilian hospital, and despite their wounds — given the possibility of a “government counter-offensive.” After all, as noted above, more than half of the patients in the MSF hospital were Taliban on September 30.

To be clear, because of MSF’s commitment to neutrality, it is impossible to state categorically that most of the patients who left the hospital on September 30 were Taliban fighters, not civilians. But it is fundamentally dishonest for the Daily Caller and Alan Dershowitz to claim that MSF “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.” MSF admitted no such thing.

[Rachel Lopez is an Assistant Professor of Law and the Director of the Community Lawyering Clinic at Drexel University’s Thomas R. Kline School of Law.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

First, I would like to thank Professors Drumbl, Roht-Arriaza, Teitel, and van der Vyver, who so generously offered their time and expertise to comment on my article. I have really enjoyed the opportunity to have these conversations with scholars whose writing has greatly influenced my own in near real time.

Response to Mark Drumbl

In a compelling and exquisitely written commentary, Professor Drumbl illustrates how collective memory (and storytelling more broadly) is evoked by survivors and perpetrators alike and reminds us of how thin the line between the two can be. He also highlights the contested nature of memory, resulting from a power struggle between those seeking to remember and those hoping to forget.

Professor Drumbl and I share much common ground in our assessment of the importance of remembrance after mass atrocity and how judicial proceedings can diminish its significance, which in turn frustrates and disenfranchises victims. We also agree about the notable concerns with permitting collective memory to be a source of evidence in the guilt phase of the criminal prosecutions.

Where Professor Drumbl and I part ways is when he suggests that the penal processes is so ill suited to accommodate collective memory that we should abandon that effort entirely. He astutely notes that the memories of survivors may splinter and diverge in ways that make its inclusion in judicial proceedings unworkable. I contend, however, that it is precisely for this reason that trials are such critical sites for the interjection of collective memory. On this point, I concur with legal scholar Mark Oseil when he argues that because trials are adversarial in nature, they are designed to accommodate dissensus and facilitate public discourse in ways that other institutions cannot. For instance, whereas truth commissions typically collect and catalog victims’ experiences into one official report that presents a single narrative, trials present multiple opportunities for the memories of different groups to emerge depending on who brings the claim and the scope of the conduct and events covered by it.

Professor Drumbl also cautions us that “[p]ushing one correct remembrance, and collectivizing it, risks memorializing the experiences of the strongest among the survivors while neglecting the recollections of the weakest.” I share this concern, but come to a different resolution about how to mitigate it. When lawyers are not permitted to admit collective memory and must rely on individual testimony alone, they are compelled to pick the strongest representative from their client base. That representative may engage in his or her own form of censorship, consciously or unconsciously, thereby excluding the voices of the broader affected community. On the other hand, permitting lawyers to submit victim impact statements in which a community collectively describes the harm from an alleged violation would broaden the number of voices who enter the process.

I also maintain that the lawyers are uniquely suited to act as preservers and promoters of collective memory, because of the trusting relationships they cultivate with their clients over time. In contrast, as Professor Roht-Arriaza and Laura Arriaza warn in Social Reconstruction as a Local Process, “a short-term truth seeking endeavor cannot hope to garner widespread trust among people of a deeply traumatized society, and thus the testimonies taken may be from those less affected, or more articulate…”

Furthermore, because lawyers owe fiduciary duties to their clients, they are better positioned to present their collective narrative. I fear that the external institutions that Professor Drumbl proposes as alternative sites for collective memory are more likely than lawyers to have divided loyalties. Since these institutions would obtain their mandates and likely their funding from external sources, they may be captured by outside interests that deviate from those of the victim group. In the interest of sounding neutral, they might also water down or incompletely portray victims’ stories. The problem of selectively authenticating one memory over another would be compounded.

If we aim to tether collective memory to remedies that more systematically address harms, I also believe that lawyers can play an important role in generating consensus among their clients about what relief is appropriate.

Response to Naomi Roht-Arriaza

Professor Roht-Arriaza offers a carefully considered and thoughtfully crafted commentary that furthers the conversation on the complementarity of collective memory and judicial proceedings.

First, she reminds us that not all post-conflict settings are the same and in some localities, communities may be so disrupted that collective memories are not formed. That observation aligns with my own experience working with societies in transition after mass atrocity and I would like to underscore my agreement with Jaya Ramji-Nogales that transitional justice must be bespoke. Put another way, both the form and objectives of transitional justice must be tailored to the local context and driven by homegrown demands. There is no one size fits all option in transitional justice.

For that reason, in some respects, what I suggest is quite narrow. As I explain in my article, “[w]hen I advocate for the admission of collective memory into judicial proceedings in this article, I am referring to the collective memory of groups of victims who were present or directly affected by the same event or experience.” Two preconditions are necessary: 1) there must be a group of survivors of the same event or alternatively groups of survivors who share a common experience and 2) they have must engaged in memory work and arrived at a common understanding of events.

As Professor Roht-Arriaza points out in her commentary, and I explain in my article, some of the rules of international and domestic courts may already lend themselves to the admission of collective memory. At the same time, other rules discourage attorneys from pluralizing the attorney-client relationship. For instance, pursuant to the International Criminal Court’s rules of evidence, attorney-client privilege is waived if the client discloses information to a third party, including fellow survivors. In addition, human rights lawyers, who were educated in countries with western legal traditions that propagate an individual-centered understanding of the law, may feel intrinsically wary of collective representation.

Professor Roht-Arriaza invites further discussion about how we might incorporate the on-ground experience of communities into the design and implementation of measures of non-repetition. It is my view that one critical step to accomplish that goal is to be more intentional about creating space for collective voices in judicial proceedings.

Response to Ruti Teitel

Continue Reading…

[Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law, and Extraordinary Professor in the Department of Private Law, University of Pretoria.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Knowing the truth and holding persons accountable for wrongdoing are important preconditions for reconciliation of communities in transition. There is a certain discrepancy between these two components of transitional justice. Truth commissions as an expedient mechanism for the cultivation of an impartial historical record through collective memories of past atrocities of perpetrators and victims alike seem dependent on amnesties for serious wrongdoing during the preceding age of repression. As evidenced by the South African Truth and Reconciliation Commission, which was instrumental in transforming the Republic of South Africa from a racist oligarchy into “an open and democracy society based on human dignity, equality and freedom,” amnesties for serious wrongdoing was an essential precondition for revealing the truth, the whole truth, and nothing but the truth.

Creation of the International Criminal Court (ICC) in 1998 has clearly implicated this tension between retributive and restorative justice. There are clear indications that establishment of the ICC ruled out amnesties for any of the core crimes of customary international law, and truth commissions without amnesties seems to be a contradiction in terms. At the Rome Conference, the United States noted in a non-paper that conflicts might arise between international prosecutions and truth commissions but did not take the matter further, and the issue was therefore not further pursued in Rome. At a final social event in Rome, Philippe Kirsch, chairman of the Committee of the Whole who was to become the first President of the ICC, was asked by one of the delegates about the future of truth commissions, and he responded that this was “a creative ambiguity” to be resolved if the matter should come before the ICC.

Collective knowledge is not necessarily accurate knowledge of historic events. Nor should it be.

Many years ago, a visiting professor from the Netherlands delivered a public address at my alma mater in South Africa on “History and Mythology.” He noted that the stories recorded in Greek mythology were not really based on empirical facts and events but were fabricated by their authors to instill in the minds of the readers a certain moral consciousness―a perception of right and wrong. History as recorded in textbooks also does not reflect the truth. Abraham Lincoln was not really, really the person as recorded in history books. Historians reflect an idealized image of this great man; and in doing so they instill in the public mind a certain moral perception of good governance. By contrast, history records in exaggerated form the bad characteristics and wrongdoing of the deplorable characters of the past in order to creating a perception in the minds of the people of what ought not to be. History as reflected in history books serves the same purpose as Greek mythology. History, in a word, is mythology.

If I were to translate this into the current recording of South Africa in transition, I can already see the emphasis on the wonderful contributions of Nelson Mandela toward political change and reconciliation, and perhaps an exaggerated portrayal of the lust for power, for wealth and for sex of President Jacob Zuma as the icon of impropriety. South African governments of the past have had their ups and downs. Prior to political change in the country in 1994, successive governments applied a policy that has now come to be condemned by the international community of states as a crime against humanity. But as far as defiance of the rule of law and disrespect for judgments of courts of law are concerned, no government in the entire history of South Africa has stooped so low as the one currently in command!

And there is one more matter relating to collective memory as a component of transitional justice I wish to emphasize.

In 2008, Karl Doehring (1919-2011), internationally famous professor of General Political Science and of International Law at the University of Heidelberg in Germany, published a book entitled Von der Weimarer Republic zur Europӓischen Union (From the Weimar Republic to the European Union), which is in essence an autobiography. In the opening introduction he proclaimed that current generations looking back at past historical events can describe what happened, evaluate and criticize those events, and seek guidance for future conduct, but―proclaimed Prof. Doehring―if you haven’t been there at the time and personally experienced what happened, you will never understand it.

Collective memory of past events in the minds of peoples in transition is not merely designed to record and to understand history; it is destined to secure a better future. We may not accurately record or truly understand the policies and practices of the past, but must apply our collective, and perhaps mythological, knowledge to secure a better future.

John Jackson died on Saturday, November 7, 2015, at the age of 83. He had an incredibly productive and creative career, with achievements enough for several lifetimes, and, despite that, he was a lovely and gentle man, who exuded true modesty. In this brief memorial, it would take too long to do justice to his achievements. The highlights of his career, including many important publications, coveted awards and honors, and other major milestones, are summarized nicely by Georgetown Law Centre, where he taught since he left Michigan in 1998.

During the permanent political silly season we are experiencing in the U.S., where bluster and puffery often pass for leadership, it is comforting to think of John Jackson’s authentic, modest, and altruistic leadership of the field of international trade law. He did not seem to intend to lead. Rather, I believe that he moved step-by-step, as his own intellectual curiosity and public spirit drove him at each turn. In doing so, he cultivated a field by writing leading books and articles, educating and mentoring its leading scholars and practitioners, writing important laws, founding the leading journal in the field, and designing a world-improving international organization. He did not cultivate this field to advance his own career, but rather was driven by a spirit of inquiry and of public service. In doing so, he made a major contribution to global society.   For those who would like to see Jackson speak, or hear his own views about some aspects of his contribution, this 2012 interview is a good place to start.

The world can pay no greater tribute to a legal scholar than to adopt his or her ideas. I will provide a vignette of Jackson’s achievements by focusing on the most remarkable of these tributes bestowed on Jackson, the 1995 establishment of the WTO in substantially the form that Jackson recommended in 1990. Perhaps the formation of the WTO, on the cusp of the 21st century and the third millennium, will be regarded in the future as an act of great historical significance. Jackson was present at the creation, and in fact, he was one of the creators.

In his 1990 monograph, Restructuring the GATT System, Jackson set out a critique and a prescription for institutional reform of the GATT: he provided the reasons for, and the design of, the WTO. Jackson put aside the particular trade concessions being negotiated in the Uruguay Round, in favor of “longer-term” and “more fundamental” issues of institutional and, he dared to say, constitutional, structure. Just as only Nixon could have “opened” China, only someone so pragmatic and so immersed in the doctrine, politics, and day-to-day mechanics of the GATT could open up the idea that what was needed was “constitutional.”

Jackson laid out the foundations of his prescription carefully, examining the (unfortunately termed) “birth defects” of the GATT itself, as well as the stillborn International Trade Organization (ITO), the third of the Bretton Woods triplets. He cataloged the GATT’s institutional problems in decision-making, amendment, balkanization by side agreements, dispute resolution, and secretariat services. He saw the rectification of this system as part of a broader evolution: “To a large degree, the history of civilization may be described as a gradual evolution from a power oriented approach, in the state of nature, towards a rule oriented approach.”

Thus, Restructuring the GATT System, based on thirty years of observation and analysis, formed the basis for Jackson’s advice to the government of Canada regarding institutional issues in the Uruguay Round. Jackson explicitly took a “problem-solving” approach. However, he made the jump from addressing specific problems to a more comprehensive, forward-looking and “fundamental” approach. Jackson saw that the charter of the new organization must be simple and discrete, “focused on the institutional and procedural issues, largely leaving substantive rules and obligations to other treaty instruments such as the GATT which would be served and ‘sheltered’ by the broader organization.” This intuition was the result of a combination of vision and modesty. Jackson saw the need for an overarching organization, but recognized the lack of political support for a complex organization that required more extensive substantive rules and locked them in place. Jackson named the “World Trade Organization” and specified that it would function to support not just the GATT but also, inter alia, an agreement on services and an agreement on intellectual property. Jackson then outlined the WTO charter, covering the fundamental topics actually agreed four years later.

Of course, the structure of the WTO is only the most publicly visible of Jackson’s contributions. It is possible that this contribution will be equaled or exceeded by his contribution to the education and mentoring of practically all the world’s trade law scholars and practitioners, often directly, but otherwise through his publications.

John Jackson dealt not only in punctilious scholarship, rigorous education, careful policy prescription and incisive and creative analysis, but did so with the greatest integrity and humanity. We will miss him, but we will remember him in gratitude for the work he did and the example he set.

[Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School and the author of Globalizing Transitional Justice (2015).]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

I am pleased to join this symposium about Rachel Lopez’ provocative article, The (Re)collection of Memory after Mass Atrocity. The article makes a contribution to contemporary transitional justice scholarship that challenges the normative relationship of transitional justice and human rights.

Professor Lopez, argues for “collective memory” over individual justice, characterizing the the two aims as divergent. She writes, “the preservation of collective memory is in tension with another impulse that follows mass atrocity: the desire for justice.” Here one might say she is leveling a critique at the “human rights-ization” of transitional justice—a critique which I share, as is evident in a recent essay where I argue against an absolutist view of accountability.

Nevertheless, to my mind the dichotomy drawn here between the demands of memory and justice seems too sharp. To some extent, the article hearkens back to an earlier period of transitional justice; the post-Cold War 1990’s when states seemed to be in control of their transitional justice processes and could elevate the needs of the people over abstract universal demands of justice.

But is this view relevant given contemporary developments; such as the globalization of transitional justice. Given the many other actors and institutions which are now involved in these processes I wonder about notion of a goal of arriving at a unified or unifying collective memory of an atrocity or conflict?

Indeed, one can see the emergence of a globalized transitional justice—and this means more actors beyond the state with varying demands, practices and values. Who then owns the process of arriving at “collective memory?” Collective memory raises issues of the politics of transitional justice   can see national agreements regarding transition and reconciliation but also the role of courts and diasporic populations. Consider what collective memory may mean to a state undergoing transition, and what to diaspora communities, such as Armenia today or Cuba? Who or what counts for collective memory? For example, one can see national agreements regarding transition and reconciliation but also what the role of courts and diasporic populations has been to challenge these national determinations. Consider Chile’s extradition of Augusto Pinochet: while on the one hand Chile had convened a truth and reconciliation commission, nevertheless these issues were reopened by members of the diaspora who are surely also part of some collective memory?

Moreover on this view, not only is justice not in tension with collective memory but often memory processes are often overseen or even instigated by international institutions such as courts. All of which raises the inevitable question of what is collective memory—whether there is a prefiguring of this or whether there is not an inevitable social political and yes even legal construction? And, if so, then one might raise normative question of to what extent is the cultivation of such memory necessarily a good thing? That is, in a truly liberal society what is the contribution of protecting an official story? Consider that in Argentina as in Germany today there continues to be a socially accepted militancy regarding memorialization, for example, militant democracy approach to protection of the official story.

One can even say this is true throughout the Americas where the Inter-American Court of Human Rights has aimed at a harmonized rights approach to these issues. Not only is justice not in tension with collective memory, but todays collective memory processes are often supervised and even inspired or instigated by international institutions here, including courts. One can see this in the Inter-American setting where the regional human rights court has taken an aggressive view of memory as a right of victims in a fully developed jurisprudence. For example, in Goiburú v. Paraguay, a case involving torture and disappearances, the court ordered collective memory via the convening of a monument and public acts of acknowledgment of past repression and the victimization. But what is the social significance of a coerced collective memory ordered by a regional rights actor? While the pursuit of the official story may well be seen as acceptable in Latin America given continent-wide disappearance policies, to what extent is this collective memory being guarded by the regional court?

Another example is Germany, whose collective memorialization process began in earnest through the nationwide portrayal of the Auschwitz trials. To this day, there is a view that lawyers and legislation, such as hate-speech-denial laws (even criminal), ought to be deployed to protect the country’s official account via Nuremberg and other trails on the collective memory of the Holocaust from which there can be no divergence.

Hence we can see that the relationship of justice and collective memory is complex. In a truly liberal society, militant-democracy approach to memorialization would ultimately give way as the society matures and democracy becomes consolidated. Indeed, with the passage of time, that there will be multiple paths of access to memory, a process of social and political construction.

[Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Rachel Lopez’ article breaks new ground in a few ways. We’ve known of the importance and process of formation of collective memory for nearly a century, as she points out. There’s a whole literature on the reasons for prosecutions in the wake of mass atrocities, and the reasons why those reasons don’t apply. Given that, I appreciated her novel insight that when there’s a long temporal lag between the end of the violations/atrocities/crimes and the ability to bring the perpetrators to justice, that disrupts existing collective memories and opposes them to an individual-centered judicial process.

Of course, an easy answer to the problem would be to hold trials closer to the time of the alleged crimes, while collective memory is still in the process of formation and consolidation. It may be that the erosion through external and civil society pressures of a still widespread preference for impunity, and earlier attention to (re)building a justice infrastructure in the wake of armed conflict or dictatorship, will eventually make that possible. But I’m a bit pessimistic. Judicial processes always take a long time, except if they ride roughshod over due process; judicial processes involving previously, and perhaps still, powerful people who will fight like hell to avoid them, take longer. So the temporal lag is likely to persist.

I’m not sure, though, that the result is necessarily a confrontation between the fruits of collective memory and the individual testimony of witnesses. International courts, and domestic courts applying civil law, do not have strict hearsay rules that preclude witnesses testifying about events involving others in the community. In many local communities that have retained some degree of cohesion in a post-war era, an informal process of discussion, recall and vetting precedes any discussion of sensitive memories with outsiders, whether these are truth commissions, prosecutors or courts. For example, our work in Guatemala found a number of examples of community-level constructions of collective memory through mapping exercises, community museums or rituals around inhumation and reburial of the dead, which later fed into judicial processes in various places.

Collective memory is reproduced and perhaps expanded, but not necessarily challenged, in individual testimony.

However, this is not true everywhere, as war and repression inevitably disperse, degrade and destroy community. This presents a problem for collective memory, both because it’s no longer clear who is included in the collective, and because the internal processes of reconstruction, retelling and comparison of memories that creates collective memory are disrupted. Under these circumstances, trials can actually both reaffirm and reinvigorate collective memories by broadening the sphere of the “collective” to those listening to trial testimony, who find their individual memories validated. Of course, they can also give rise to counter-narratives, a “dissensus” that can in theory enrich civic discourse but that in practice is often intimidating, silencing, and violent. The Guatemalan Rios Montt genocide trial offers one example.

The other aspect of Rachel Lopez’ article that I found provoking was her recommendation to use the tools of community lawyering to better allow communities more of a collective say in processes of reparations and in the design of guarantees of non-repetition. To some extent, as she recognizes, this is already done, not least by the Inter-American Court of Human Rights, which regularly recognizes injuries to collectivities and orders appropriate redress. A number of national reparations programs have, at least in design, been attentive to the dimension of collective harm and collective redress, for example Peru, Colombia and Cambodia.  No doubt more could be done.

Where the big gap lies, in my view, is in the design and implementation of measures of non-repetition. Intended to respond to the underlying causes and amplifiers of armed conflict and/or repression, these have often been framed with a donor-driven or elite-driven logic that makes no room for the on-the-ground experiences of communities.   So they have focused on a narrow band of civil and political rights violations, ignored or underestimated continuities of violence—around women’s rights, or extraction of natural resources and expropriation of community lands, for example—and been accorded insufficient resources, imagination, or importance. Even where broad-ranging reforms are incorporated into peace agreements or transitional justice plans, as was the case in 1996 in Guatemala, these are not translated into practice. Here is where the overlap and synergies between community lawyering, bottom-up consultation and collective interests, economic development and transitional justice provides fertile ground for further research and discussion.

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee University, and Visiting Scholar, CICJ, VU University Amsterdam.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Atrocity begins with story-telling. Elegies lament unrighted wrongs from ancient battles. Fables weave and spin the bravado of national or ethnic superiority. The roll, pitch, and yaw of an entire literature ritualizes dehumanization: stories of vermin, poisonous mushrooms in children’s books, bespectacled intellectuals, enemies of the state. Then come exhortations to cut the tall trees, to take out the garbage, and to make way for Lebensraum. The filth is to be scrubbed, the society purified, the landscape cleansed.

Atrocity metastasizes once these stories become performed. New stories then emerge. These stories narrate pain and suffering. Their tales, however, may redound with redemption; their ballads may record harrowing strategies of survival paired with forensic accounts of death; at times, too, chants of resistance arise.

In the aftermath of atrocity, these stories become memory. The construction of memory, then, becomes an act of the living and a sign of life. For survivors, authorship over memory represents the exercise of agency and autonomy. For perpetrators and their supporters, revising (or denying) memory – also an act of authorship – becomes a tactic to thrive in changing times.

It is no surprise that in the aftermath of mass atrocity the recovery of memory, and its reclamation, matters so much to so many. The hunger for memory, however, intersects with the blandness of law. This encounter frustrates, perhaps most acutely for victims.

It is here that Professor Lopez enters the conversation. She recognizes this frustration. She also gestures towards a path forward. For her, law can respect memory. It can channel stories of survival, subjugation, and suffering. While Professor Lopez is an optimist about law’s potential, she remains more circumspect about how, exactly, we should understand memory. In a particularly thoughtful argument, she contends that conversations ought to move towards “collective memory.” For Professor Lopez, collective memory arises when those most affected by mass atrocity “though discussion and ritual … merge their fragmented recollections into one holistic narrative.” Collective memory is unscripted. It emerges organically through a synthesis of informal conversations, shared glances, tacit rejections, and knowing nods. Drawing from a rich array of sources, Professor Lopez posits that collective memory is more accurate, consistent, and concise than individual memory.

In sum, then, Professor Lopez effectively exposes law’s predilection for individual conduct and illustrates how this penchant inhibits law’s ability to inflect collective action. For her, this is a loss. It is a loss because victims yearn for more. Professor Lopez’s response is reformist. Human rights lawyers should preserve and promote collective memory. Integrating collective memory of victims into legal process, for Professor Lopez, would clarify how atrocity begins and could document the pain it inflicts, while also furthering aspirations of reconciliation, transition, the development of an historical record, nation-building, and legal reform.

How to accommodate collective memory into legal proceedings? Professor Lopez’s recognizes that the criminal law may find such accommodations awkward, if not downright unworkable. The criminal law, after all, is primarily about adjudging the guilt or innocence of the defendant. The need to focus on the defendant requires the foregrounding of all sorts of due process rules. This need stymies the use of collective memory in penal process because collective memory cannot be properly vetted. Professor Lopez therefore directs our gaze elsewhere. She points to tort-based claims, action civile, and the victims’ participation scheme built by the Rome Statute and present at the ECCC.

Professor Lopez’s article makes a tremendously valuable contribution to the literature on transitional justice. Her diagnosis of law’s foibles, and her proclamation of the potential of collective memory, is sterling. She has the courage to offer some remedial responses. Her article is a rich base for a symposium.

For me, her piece opens two shutters. The first is architectural. The second is discursive. Continue Reading…

[This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.]

We are proud to partner once again with Opinio Juris to present an online symposium discussing a thought-provoking issue of international significance. This year, we highlight Professor Rachel Lopez’s The (Re)collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice, which was recently published in Volume 47, Number 4, of the NYU Journal of International Law and Politics.

Today and tomorrow, we hear comments on Professor Lopez’s article from four distinguished scholars:

• Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
• Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law.
• Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
• Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.

Tomorrow, Professor Lopez will respond to the comments.

Professor Lopez, Assistant Professor of Law and Director of the Community Lawyering Clinic at Drexel University’s Thomas R. Kline School of Law, offers the following words to introduce the discussion:

First, I want to express my sincere appreciation to the editors at NYU JILP for organizing this symposium and Opinio Juris for hosting it. A central goal of this piece is to encourage a conversation about the proper role of collective memory—an enduring and shared memory of events—in transitional justice. This forum provides a great opportunity to spark that conversation with some of the most influential thinkers on transitional justice.

As a preface to the discussion, I thought that it would be helpful to summarize the central questions raised by the article and situate it in the context of my scholarship more broadly.

The impetus for this article arises from the challenges I encountered in representing survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects. Some have noted its potential for healing the wounds of a tattered national conscience and preventing future atrocities.

What my article explores is the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. Indeed, I believe that inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.

This work draws on and builds from my other scholarship on transitional justice. As a general matter, I posit that transitional justice has distinct objectives that differ from traditional legal justice and that merely importing principles and procedures from other legal systems results in a mismatch between the transitioning society’s needs and the legal mechanisms employed. My research thus seeks to explain, analyze, and theorize about the unique role of justice after mass atrocities and how to better tailor transitional justice mechanisms to the specific needs of recovering societies.

The article also ties into another area of scholarly and professional interest: collective representation. As the director of a community lawyering clinic, I have been exploring innovative ways to engage collectives to guide the substantive focus and strategies of our work. Most recently, I co-authored with Susan Brooks Designing a Clinic Model for a Restorative Community Justice Partnership, which chronicles the development of the my clinic and highlights how the principle of deliberative democracy guides our engagement with the two communities we serve. As a general matter, I believe that our profession has an exaggerated fear of the corrupting influence of the collective, which manifests in a narrow conception of the attorney/client relationship that isolates clients in times of crisis when they most need communal support. In future scholarship, I hope to further examine models of lawyering that effectively balance the need for independent decision making with collective concerns and support.

I look forward to engaging with the participants in this discussion and want to thank them for generously offering their thoughts and critique.

[Andrew Gou is an Associate Professor at Jilin University. A translation of this post is also being circulated in Chinese via wechat, and that can be found here.]

Once upon a time, a man was traveling with a white horse. They were stopped at the entrance to town, for the town had a “no horses allowed” rule. The man argued that a white horse was not a horse, for white horse was a new concept defined by both the concepts of white and of horse, and thus different from the original concept of horse. However, the gatekeeper insisted that the white horse was still a horse and should consequently be excluded from the town. The white horse story highlights the importance of the identification of the subject matter to the application of rules. Even for such simple rule as “no horse allowed”, identifying the true subject matter is inevitable.

A key aspect of the ongoing South China Sea arbitration is to identify whether the submissions fall within the delimitation exception in the UNCLOS and China’s declaration under the exception: China argues yes, while the Philippines disagrees. On 29 October, the Arbitral Tribunal delivered its award on jurisdiction. Issues relating to delimitation exception are addressed briefly in paragraphs 155-157. The Tribunal states that it is “not convinced” by China; it considers that a dispute concerning maritime entitlement is distinct from a dispute concerning the delimitation; the Philippines has not requested the Tribunal to delimit, and the Tribunal will not effect the delimitation of any boundary. Then in paragraphs 397-412 titled “[t]he Tribunal’s conclusions on its jurisdiction”, the Tribunal concludes that 14 submissions of the Philippines do not concern maritime delimitation.

I respectfully disagree with the award. In particular, I disagree with the manners in which the Tribunal reaches its conclusions on the delimitation exception.

Basic understanding of the delimitation exception

Article 298.1(a) of the UNCLOS provides that a State may declare that it does not accept compulsory procedures with respect to “disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations”. In a recent article of mine (paras. 7-37), I tried to interpret the exception in accordance with Article 31 of the VCLT. Some basic findings are as follows:

First, delimitation is a process, and the term delimitation in the exception shall be understood as such. “The task of delimitation consists in resolving the overlapping claims” (Maritime Delimitation in the Black Sea, para. 77), which indicates that delimitation is a process of identifying, weighing and effecting competing claims, not only the final determination of the boundary line.

Second, according to their ordinary meaning, the good faith principle and relevant case law, the terms relating to and concerning in the language of the delimitation exception shall be interpreted non-restrictively. They carry the meaning of on and connected with, or having a bearing on.

Thus, the delimitation exception covers not only disputes on the determination of sea boundaries but also disputes having a bearing on the entire delimitation process. With an Article 298.1(a) declaration, the UNCLOS compulsory procedures shall not apply to those disputes.

The Philippines has wrongly specified the nature of the disputes

My article (paras. 73-100) also examines the Philippines’ submissions, and concludes that each of them has a bearing on delimitation and is excluded from arbitration by the declaration of China.

For instance, the Philippines asks the Tribunal to declare that China’s maritime claims based on its “nine dash line” are inconsistent with the UNCLOS and therefore invalid (award, paras. 4, 99). Apparently the Philippines is of the view that the line represents China’s maritime claims. If the view is correct, then disputes on the line are typically disputes on overlapping claims: they arose only when the Philippines raised maritime claims overlapping with China’s; they could be settled only in the process of delimitation. If the Philippines’ view is not correct, then it must be proved that there exists a dispute concerning the interpretation and application of the UNCLOS; otherwise, the Tribunal will have no jurisdiction. Continue Reading…

[Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway and the author of Judges, Law and War; the Judicial Development of International Humanitarian Law (Cambridge, 2014). This is the second part of a two-part series. The first post can be found here.]

Following on from the first part of this essay, which introduced the consideration given by the United Nations Commission of Inquiry into the 2014 Gaza Conflict to the ill-treatment and execution of Palestinians alleged to have collaborated with Israel, this second part looks at the practice in light of the war crimes provisions of the Rome Statute of the International Criminal Court.

Grave Breaches of the 1949 Geneva Conventions

Not all of the war crimes provisions of the Rome Statute are defined in relation the adverse party, particularly those applying in non-international armed conflicts, although this at times implicit, most notably with regard to grave breaches of the 1949 Geneva Conventions. Grave breaches under Article 8 of the Rome Statute can only arise if committed against persons protected by those treaties – under the Fourth Geneva Convention, protected persons are considered to be those who find themselves in the hands of a party to the conflict or Occupying Power of which they are not nationals. The ICTY famously sought to dilute this nationality requirement in Tadić by emphasising allegiance, and the ICC’s Elements of Crimes can be considered to partially reflect this approach when they state that in relation to the grave breach of wilful killing, a perpetrator need only know that “the victim belonged to an adverse party to the conflict”. The Pre-Trial Chamber in Lubanga applied the Tadić approach to nationality, albeit in the context of interpreting “national armed forces” in the context of recruiting child soldiers, rather than protected persons under the Fourth Geneva Convention.

The Commission of Inquiry on the 2014 Gaza Conflict concurred with prevailing international opinion that Gaza remains occupied territory and that the laws of occupation, including the Fourth Geneva Convention, continue to apply. But Palestinians detained by the authorities in Gaza would generally not be considered as protected persons under the Fourth Geneva Convention, as they do not belong to an adverse party to the conflict. Those that collaborate with Israel could be considered to have somehow switched sides and changed their allegiance. Would their actions have to have amounted to direct participation in hostilities, such as by relaying the location of Hamas fighters or weapons, or would more minor forms of collaboration suffice, such as relaying messages or money? Treating cooperation with an opposing force as a switching of allegiance could lead to the absurd situation where protected person status might arise for those that voluntarily engaged in collaboration, but not those coerced into doing so. Assessing this on an individual basis would be extremely difficult given the secrecy surrounding these practices.

The Gaza Commission noted in a footnote the overlap and distinction between war crimes in international armed conflict and non-international armed conflicts under Article 8 of the Rome Statute, but it did not apply the distinctions in any great detail in its analysis. It refrained from classifying the hostilities between Israel and Palestinian armed groups as amounting to either an international or non-international armed conflict, claiming that there is “very little substantive difference” in the customary international law applicable to both when it comes to the rules governing conduct of hostilities. Debate exists as to the status of the hostilities between Israel and Palestinian armed groups – the ICC Prosecutor has previously considered the situation in Gaza “within the framework of an international armed conflict”. Perhaps the strictures of the grave breaches regime might be softened by reference to the protections of Article 75 of Additional Protocol I, which insists on humane treatment and fair trial rights for any person in the power of a party to the conflict. The Court has said that it will only apply “the established principles of the international law of armed conflict” as referred to in Article 21, where there is a lacuna in the Statute, Elements of Crimes or Rules.

Common Article 3 War Crimes

The Gaza Commission used Common Article 3 in assessing the lawfulness of the treatment of civilians and those hors de combat by Palestinian armed groups. The “protected person” conundrum under grave breaches does not arise for war crimes based on Common Article 3 as set out in Article 8(2)(c) of the Rome Statute, but such crimes must have occurred in an armed conflict “not of an international character”. It is unlikely that an armed conflict can be said to have existed at the time between Palestinian armed groups and the Palestinian Authority forces, even though some of the executions and cases of ill-treatment observed by the Commission “were directed against persons who had links with Fatah and the Palestinian authorities’ security forces and may have been acts of revenge”. If the hostilities between Israeli forces and Palestinian armed groups were classified as a non-international armed conflict, it might still be asked if the law of war crimes extends to the ill-treatment by either party of their own civilians. Neither Common Article 3 nor Additional Protocol II make such a distinction, setting out fundamental guarantees for those who do not or who have ceased to take part in hostilities. Perhaps the notable broadening of the law of non-international armed conflict, and the attendant expansion of the concept of war crimes beyond international armed conflicts, challenges this idea that war crimes can only be committed against the opposing side (or sides) during a conflict. For a non-international armed conflict confined to the territory of a State, surely all civilians formally belong to the same overall power, even if some may profess allegiance or fall under the control of one or other parties to the armed conflict within that State.

Nevertheless, the war crimes provisions of the Rome Statute related to non-international armed conflict include some references to combatants and the property of “an adversary”. It is a war crime to physically mutilate persons “who are in the power of another party to the conflict”. When assessing the requirement that there be a nexus between an armed conflict and the alleged conduct, an ICC Pre-Trial Chamber cited amongst possible factors “the fact that the victim is a member of the opposing party”. This is not an absolute requirement though, and it has been cited in jurisprudence of both the Special Court for Sierra Leone and the ICTY where the tribunals found that the ill-treatment and killing of suspected or perceived collaborators were war crimes committed in internal armed conflicts. The Commission of Inquiry on Syria has described as unlawful killings the numerous deaths of suspected collaborators at the hands of various parties to the conflict.

The abuses perpetrated against alleged Palestinian collaborators are against civilians who are accused having provided information, often under coercion, to the Israeli authorities. The Gaza Commission did not take issue with the trial and punishment of those killed, but rather that they were executed summarily or before legal proceedings against them had been completed. The death penalty itself was not at issue. The link to the armed conflict referred to by the Commission, but not specified, may have been the provision of information to the opposing side. What then of those civilians merely labeled as collaborators, but who may have been tortured and killed as a matter of revenge or the settling of political scores? In the past, many Palestinians accused of involvement in prostitution or drug-dealing were also killed as collaborators. The ICTY has noted that “[n]ot all unlawful acts occurring during an armed conflict are subject to international humanitarian law”. Would the occurrence of such crimes during a military occupation, albeit not by the forces of the occupying power, mean that they are sufficiently “in the context of and was associated with” an armed conflict (albeit of an international nature)? If these killings by Palestinian armed groups qualify as war crimes, then so too might the torture and ill-treatment of Palestinian detainees at the hands of the Palestinian Authority. A key issue is determining at what point criminal acts by Palestinian armed groups against Palestinian civilians become war crimes, over which an international tribunal can potentially exercise jurisdiction.

Extra-judicial executions are undoubtedly criminal acts, which violate both human rights law and the fundamental guarantees of international humanitarian law as set out in Common Article 3. They can also amount to war crimes under customary international law and the Rome Statute of the International Criminal Court, although the two are perhaps not coterminous. The extra-judicial execution of alleged Palestinian collaborators by Palestinian armed forces and the context in which they occur raise difficult legal questions which the Gaza Commission overlooked. Such questions may eventually come to be addressed by the International Criminal Court itself.

Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified.

Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself.

Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies. Continue Reading…

[Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway and the author of Judges, Law and War; the Judicial Development of International Humanitarian Law (Cambridge, 2014). This is Part 1 of a two-part series.]

The recruitment and use of Palestinian collaborators by the Israeli authorities, and their ill-treatment and execution by Palestinian forces, has been a perennial feature of the conflict in Israel and Palestine. A common practice in many armed conflicts, the use of informers is seen as a vital means of intelligence gathering. A 2006 United States counterinsurgency manual stated that “[n]othing is more demoralizing to insurgents than realizing that people inside their movement or trusted supporters among the public are deserting or providing information to government authorities”. It is lawful, according to the United Kingdom manual on the laws of armed conflict, “to induce enemy civilians or soldiers to give information”, although it is clearly unlawful to use coercion against protected persons for such purposes. Such collaboration would be usually considered as treason or spying for an enemy, which is criminalised in most national jurisdictions, and for which numerous States have retained the death penalty.

Despite the prevalence of collaboration and informing during armed conflicts, international humanitarian law has had relatively little to say about the practice. Collaborators are not referred to as individuals or as a distinct category of participants in armed conflict in the relevant treaties, and thus not defined under the laws of armed conflict, while spies are generally understood under humanitarian law as referring to members of the armed forces that engage in espionage. The practice of collaboration is neglected in the legal academic literature also, although the phenomenon is addressed in other disciplines. International law has tended to defer to national jurisdictions when it comes to dealing with collaborators or traitors. During the Second World War, the United Nations War Crimes Commission decided that “[t]he trial of quislings would be left exclusively to the National Governments”. In the great purges that followed the Second World War thousands of collaborators were executed in Europe, many extra-judicially. The subsequent drafting of the 1949 Geneva Conventions saw States assert their right to deal with “spies and traitors” outside of the Conventions’ protections – the derogation in Article 5 of the Fourth Convention concerning protected person status is described as “an important and regrettable concession to State expediency”. The article does insist, however, on humane treatment and the rights of a fair and regular trial for certain persons suspected of having engaged in acts deemed hostile to State security.

The Commission of Inquiry on Gaza

Israeli security services have been said to use a “combination of pressure and sweeteners to entice Palestinians to divulge intelligence”. The Goldstone Commission briefly addressed the phenomenon of collaboration in Gaza, noting that it had received reports of attempted recruitment of Palestinians activists by the Israeli security services. The Commission condemned the killing of alleged collaborators by the Gaza authorities, describing these as “serious violations of human rights”. The United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict paid greater attention than its predecessor to the treatment of suspected collaborators by Palestinian armed groups, and analysed the lawfulness of their treatment through both human rights law and international humanitarian law. Regarding the killing of collaborators, the Commission reported that…

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

Africa

• Residents of Sierra Leone’s capital held a candlelit vigil and celebrations to mark the end of an Ebola epidemic that has killed almost 4,000 people including more than 220 health workers since it began last year.
• The international community has condemned Burundi’s government for inciting violence amid a deteriorating security situation in the country and expressed alarm at a number of apparent summary executions.

Middle East and Northern Africa

• The Islamic State of Iraq and the Levant (ISIL) group has released 37 Assyrian Christians from the towns of Tal Shiram and Tal Jazira, according to a monitoring group.
• U.S. President Barack Obama and Prime Minister Benjamin Netanyahu meet on Monday for the first time since the Israeli leader lost his battle against the Iran nuclear deal, with Washington seeking his re-commitment to a two-state solution with the Palestinians.
• A pilotless U.S. military drone crashed in rural Kuwait on Sunday, causing no injuries, the small Gulf Arab state’s defense ministry said in a statement.
• Two Serbian embassy employees, a man and a woman, have been abducted in Libya’s northwestern coastal city of Sabratha while travelling with a convoy to Tunisia, the government in Belgrade said.
• Morocco’s king has renewed Rabat’s insistence that there will be no compromise on the kingdom’s claim to sovereignty over the Western Sahara, vowing that he will offer no more than autonomy to end the four-decade deadlock over the region.

Asia

• The Philippine Supreme Court is expected to decide that a new U.S.-Philippine security agreement is constitutional and will announce its ruling before President Barack Obama visits Manila next week for an Asia-Pacific summit, a source said.
• NATO partners are considering ways of beefing up their training and assistance mission in Afghanistan as concern grows over the ability of local forces to fight an escalating insurgency by Taliban militants, according to officials in Brussels and Kabul.
• A day after Chinese President Xi Jinping and Taiwan President Ma Ying-jeou held historic talks in Singapore, the island’s opposition leader and presidential frontrunner said on Sunday: only the people of Taiwan can decide its future and will do so in elections in January, as China’s top newspaper warned peace was at risk if it opted for independence.

Europe

• The Polish government’s decision to accept 6,800 refugees fleeing Syria and Eritrea has created a fierce debate dividing Polish society with opponents of the decision dominating the discussion.
• Ukrainian forces and pro-Russian separatists have agreed to complete a withdrawal of heavy weaponry from their frontlines in eastern Ukraine, German Foreign Minister Frank-Walter Steinmeier said on Friday after a round of peace talks in Berlin.
• Germany needs to be tougher in the refugee crisis and do more to help secure Europe’s external borders, European Council President Donald Tusk said ahead of a meeting with Chancellor Angela Merkel on Sunday.

Americas

• After standing by Communist Cuba in its years of international isolation, Mexico welcomed Cuban President Raul Castro on Friday as it seeks to turn Havana’s thawing relations with the United States into a major business opportunity on the island.
• Venezuela said a U.S. Coast Guard intelligence plane violated its airspace on Friday and that other planes with capacity to gather information were circulating close to the South American country.
• U.S. and coalition forces are likely to increase air strikes against Islamic State targets in Iraq and Syria in coming weeks after a lull in September and October, the head of U.S. Air Forces Central Command said Saturday.
• Wealthy Gulf Arab states such as Saudi Arabia and Qatar as well as the so-called BRICs emerging market nations should do more to help Syrian refugees, a senior U.S. official said on Friday.
• The Obama administration is moving to increase and accelerate the number of Syrian refugees who might be admitted into the United States by opening new screening outposts in Iraq and Lebanon, administration officials told Reuters on Friday.

Oceania

• A riot has erupted at a controversial offshore refugee-detention facility in Australia following the death of asylum-seeker.

UN/World

• Without the right policies to keep the poor safe from extreme weather and rising seas, climate change could drive over 100 million more people into poverty by 2030, the World Bank said on Sunday.

I’m delighted to announce that two good friends, Leiden’s Larissa van den Herik (also one of my PhD supervisors!) and Manchester’s Jean d’Aspremont, are the new General Editors for CUP’s prestigious Cambridge Studies in International and Comparative Law book series, which celebrates its 70th birthday next year. Here is Larissa’s statement:

It is with great enthusiasm that I take on the general editorship of one of Cambridge University Press’ flagship series in law. I feel honoured to lead this series into the twenty-first century with a view to promoting the most outstanding scholarship on international law as we previously did as joint editors-in-chief of the Leiden Journal of International Law. Building on the Cambridge Studies in International and Comparative Law series’ impressive heritage and committed to fostering its repute of excellence, it is my ambition to be open to new and fresh voices in terms of perspective and geography as well as to a great range of themes and approaches. Such an overture is essential, in my view, to preserve the Law series’ generalist character and its position of standard-setter in international legal thought and practice.

And here is Jean’s:

Books, like courtrooms, are where choices about what we call international law and what we do with it are debated, made, and unmade. Books are serious matters. Taking the helm of the prestigious series is thus a huge responsibility. It is also a great honour given the unequalled credentials of the preceding General Editors. The challenges ahead are gargantuan, especially in the light of some of the dramatic changes witnessed in the scholarly landscape. In order to keep some a-temporal relevance, scholarship must denote a certain degree of methodological, conceptual and political self-awareness. This means that it must be possible to situate any claim made about what we call international law by any professional of the subject. In my view, it is only as long as the series nurtures such a culture of self-awareness that it can make the works it publishes today relevant to the thinkers and practitioners of tomorrow.

CUP has done well replacing James Crawford. The series is clearly in good hands. Please join me in congratulating Larissa and Jean!

Duncan, unlike David, is not primarily an international law scholar. But Kennedy’s work on critical legal studies has had a profound influence on most left-wing international law scholars — including me. So I wanted to post a link to a fascinating and wonderfully substantive interview with him conducted by Tor Krever, Carl Lisberger, and Max Utzschneider. I had no idea Kennedy worked for the CIA for two years before going to law school!

I spent two years at the CIA. The first I spent in the field, an agent of student politics, traveling all over the world. I was the overseas representative of the National Student Association. We organised conferences, produced manifestos, in alliance with the Western European student unions, and aided and cooperated with student organisations from developing countries in an effort to build a Western-oriented politics of a moderately left variety. The US organisation criticised the US government a lot, to establish credibility but also because the leaders believed the criticism. We also gathered information that went back to Washington about student politics, which was a side effect for some but maybe the main justification for others. The second year I spent inside the Langley headquarters, working for the internal staff that supervised the front organisations, collating the intelligence they gathered, and so forth. The operation was exposed at the end of my second year working for the CIA. Not everyone in the front organisation was a CIA agent. It was divided between the witting and the unwitting, and that is how the cover was eventually blown: the boundary turned out to be somewhat porous, especially when more and more of us liberal cold warriors were deciding that we, the US government, were no longer the good guys, or even good at all. I started out thinking the CIA was a good way to get out of the draft, which made me a lot less of a true believer than most of my colleagues. But by the end of my experience there, I had started to be radicalised. It was all about the war, but as the war came to seem an atrocity, many other long-term bad aspects of our foreign policy began to look like part of the pattern rather than like aberrations.

The interview is well worth a read. You can find a PDF of it here.

Call for Papers

• The Rapoport Center Human Rights Working Paper Series (WPS) is happy to announce a call for papers for the 2015 – 2016 academic year. The WPS seeks innovative papers of the highest quality by both researches and practitioners in the field of human rights. Acceptance to the WPS series provides authors with an opportunity to receive feedback on works in progress and stimulate a lively, productive conversation around the subject matter of their paper. This process is designed to prepare papers for publication in academic journals or other venues. This year we are particularly interested in papers exploring the relationship between human rights and inequality, natural resources governance, and the future of labor. Please see the submission guidelines here and feel free to contact us at rcwps [at] law [dot] utexas [dot] edu with any inquiries. 

Announcements

• Oxford University Press and the Manchester International Law Centre (MILC) have been developing a database of annotated documents pertaining to the law of international organizations called ‘Oxford International Organizations’ (OXIO). They are now looking for rapporteurs who will be identifying relevant materials and providing short commentaries. Within a few years, OXIO is meant to become one of the largest databases of international law documents. The call for rapporteurs is available here. It is of the utmost importance that the pool of rapporteurs remains representative of the variety of practices in the field, the variety of geographical traditions, as well as the variety of international organizations.

Events

Our previous events and announcements post 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.

Professor Burns Weston passed away on October 28, 2015.  His daughter, Rebecca Weston, wrote the following obituary, which she passed on to us to circulate among the international law community.  I never had the privilege of meeting Professor Weston, but was a regular user of his textbooks (on both international law and international environmental law).  I know I speak for all of us here at Opinio Juris when we offer our condolences to Rebecca, her family, Burns’ former students, as well as all his friends and colleagues.

Burns H. Weston, Bessie Dutton Murray Distinguished Professor of Law Emeritus at the University of Iowa and founder and senior scholar of the University of Iowa Center for Human Rights (UICHR) died on October 28, 2015, just a few days before his 82nd birthday.  After surviving numerous intense challenges to his health, Weston’s death was unexpected and sudden.  To the end, he was excited about upcoming birthday celebrations with his wife and visits to his children over Thanksgiving; he was steadily writing and developing new projects.

Weston was fond of quoting EB White, who said:  “If the world were merely seductive, that would be easy.  If it were merely challenging, that would be no problem.  But I arise in the morning torn between a desire to improve the world and a desire to enjoy the world.  This makes it hard to plan my day.”

In his own life, Weston also felt the pull of these choices every day – including in his first pivotal career decision to discontinue a promising career as a pianist or conductor to focus on the then relatively new field of international law.

As loved ones, friends and colleagues from around the world witnessed, Weston had a limitless capacity to enjoy so much about this world – and an equally tenacious drive to improve it.

After receiving his J.D. from Yale Law School, Weston began his legal career in 1961 with the distinguished New York City law firm of Paul, Weiss, Rifkand, Wharton & Garrison.  Wanting to teach, he subsequently joined The University of Iowa College of Law, where he remained for the rest of his professional life.  He devoted himself to the cause of international law, human rights and environmental sustainability.

As his close friend and colleague, Richard Falk said, Weston was one of “the most talented and dedicated international law scholar[s] of his generation.”  Weston authored over 28 books, innumerable articles, and was on the editorial board of over 10 professional journals, including the American Journal of International Law.  Among others, he published in the Harvard International Law Journal, Human Rights Quarterly, and the Journal of Human Rights and the Environment.

Over the years, Weston participated in fact finding missions, lectured, wrote and taught about some of the most pressing issues facing our planet: nuclear weapons and disarmament, child labor, human rights and in the latter part of his life, environmental survival.  And in doing this work, Weston was often bold and inventive.  As close collaborator David Bollier wrote, he was an “irresistible disruption” – a force of such optimism, conviction and potential – that he emboldened and challenged those around him.

At the University of Iowa, Weston inspired generations of law students and “put Iowa Law on the map” of international law and international human rights. He developed a path-breaking, problem-oriented approach to teaching international law and wrote the award-winning textbook, International Law and World Order: A Problem-Oriented Coursebook.   Always broad and expansive in his thinking, Weston also founded and directed an interdisciplinary, university-wide Center for World Order Studies (later known as the University’s “Global Studies Program”) in the 1970s.

At the same time, Weston was a dedicated teacher who paid close attention to and nurtured his students.  As one student wrote, he “will always be the internationally-renowned scholar, writer, and teacher who was also generous enough to write two e-mails to a very desperate law student when she needed it most.  And there’s not a lot of those out there.”

Prior to the end of the Cold War and the collapse of the Soviet Union, Weston took part in a human rights fact-finding mission to Havana Cuba in 1984, a protective conflict-mitigation mission in 1985 to accompany former political dissident (and later president) Kim Dae Jung upon his return to Korea following involuntary exile in the United States; and in 1987, a human rights fact-finding mission in the Israeli-Occupied Territories of the West Bank and Gaza.

Later, Weston (usually with his wife Dr. Marta Cullberg Weston), organized and/or participated in a number of human rights fact-finding and conflict-mitigation missions in the former Yugoslavia, Central Asia, and beyond.

In the latter part of his career, Weston founded the University of Iowa Center for Human Rights (UIHCR) and turned his scholarly attention to issues of the environment.  He immersed himself in the politics and the social dynamics of ecological crisis and climate change.  In 2012, Weston authored the International Environmental Law and World Order: A Problem-Oriented Casebook. 

Subsequently, in 2013, Weston co-authored a ground-breaking book titled Green Governance: Ecological Survivial, Human Rights, and the Law of the Commons.   As co-author David Bollier has written about their collaboration on the Commons Law Project, Weston “attacked these questions with the enthusiasm of a first-year law student and the sagacity of a gray eminence. […] He wasn’t afraid if they might require social and political struggle.”

At the time of his death, he was in the final stages of completing the 4^th edition of Human Rights in the World Community: Issues and Action, with co-author, Anna Grear.

In his non-academic, non-activist life, Weston embraced the world “with all five senses.”  Above all, he was passionate about and constantly immersed in classical music:  friends and family can easily recall moments when Weston’s attention drifted into a musical score; they remember often urging him to lower the volume just enough to hear themselves talk in the car or over a dinner table conversation.

He also loved art, taking drives and going to movies.  He had a strong sense of aesthetics and a gifted ability to create beautiful spaces. In no place were Weston’s senses more alive or more soothed then in his beloved Adirondack Mountains.  Until the end, Weston was a devoted spouse, father and grandfather: he was consistently and steadily available, curious about and eager to support and connect with his children and grandchildren.

Weston is survived by his wife, Marta Cullberg-Weston (Sweden) and his two children, Timothy Bergmann Weston (Boulder) and Rebecca Burns Weston (Montana), four grandchildren (Leah and Emma Yonemoto-Weston, Elijah and Isabella Weston-Capulong) and three stepchildren, Malin Cullberg, Johannes Cullberg, and Martin Cullberg and five step grand-children John Birger Wedinger, Olivia Lampenius Cullberg, Sima Wiernik Cullberg, Joar Wiernik Cullberg, and Cecilia Lampenius Cullberg.

A memorial service in honor of Weston will be held at the University of Iowa College of Law on December 5, 2015, from 2:00 p.m. – 5:00 p.m.  Donations in Weston’s honor will be accepted at the Iowa Law School Foundation for the benefit of the University of Iowa Center for Human Rights, 130 Byington Road, Iowa City, Iowa 52242

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) “squarely appl[ies]” (Ralf Trapp) or “plainly applies” (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of “special meaning” that Art. 31(4) of the VCLT requires us to take into account when interpreting that provision.

After the post went up, Alex and I had a heated but typically friendly exchange on Twitter concerning “plain meaning” treaty interpretation. Interested readers can start with this tweet. Our debate did not focus on the applicability of Art. 31(4) of the VCLT. Instead, we argued about whether simply reading the text of Art. 8(2)(b)(xviii) makes it plain that it criminalises chemical and biological weapons. Alex thinks it’s evident that it does; not surprisingly, I disagree.

The problem with the debate is both obvious and timeless: if two people disagree about the correct interpretation of a text, how do they determine whose interpretation is correct? Alex rightly rightly pointed out that we should not reject a particular “plain meaning” simply because one person disagrees with it; any such standard would deny the possibility of plain meaning altogether. (Which, to be clear, I’d be happy to do on other grounds, because I follow the neo-pragmatic approach to interpretation associated with Stanley Fish. See, for example, this fantastic essay.)

But if one person’s disagreement cannot render a “plain meaning” not plain, how many people is enough? Five? 10? 100? At some point disagreement over the meaning of a text has to negate the possibility of any particular interpretation being considered “plain.” Alex and I went around and around on this, and he finally advocated what is essentially a procedural solution to the problem: the “plain meaning” of Art. 8(2)(b)(xviii) is whatever the ICC’s judges ultimately say it is.

As a descriptive matter, Alex is absolutely correct. But unless we believe the ICC’s judges are legally infalliable — and I certainly don’t! — we have to accept the possibility that they could be wrong about the “plain meaning” of Art. 8(2)(b)(xviii). So we are right back where we started: trying to determine how much disagreement over the interpretation of a text has to exist before we conclude the text has no plain meaning.

I have no easy answer. But I would still maintain that it strains credulity to believe that the “plain meaning” of Art. 8(2)(b)(xviii) indicates that it criminalises chemical and biological weapons. To see why, we don’t even have to return (as I think we should) to the drafting history of Art. 8. It is sufficient to note that a significant number of states still believe that Art. 8(2)(b)(xviii) does not criminalise chemical or biological weapons. How do we know that? Because 14 states formally proposed amending Art. 8 to criminalise those weapons at the ICC’s Review Conference in 2010: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa and Slovenia. Here, in relevant part, are the provisions the 14 states wanted to add to Art. 8(2)(b):

xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972.

xxviii) Using chemical weapons or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1992.

These proposed amendments make no sense if the “plain meaning” of Art. 8(2)(b)(xviii) already criminalises chemical and biological weapons. So how can that interpretation be considered the “plain meaning,” given that at least 11% of the States Parties to the Rome Statute do not understand Art. 8(2)(b)(xviii) in the supposedly plain manner? Surely such disagreement indicates that there is no “plain meaning” of the war crime.

Does that mean the 14 states are right? Of course not. Perhaps Art. 8(2)(b)(xviii) really does criminalise chemical and biological weapons. All I’m saying is that we cannot reach that conclusion by looking to Art. 8(2)(b)(xviii)’s “plain meaning.” The meaning of the war crime is at best ambiguous or obscure.

But that, of course, is a critical realisation. Because it means that we have to look to the drafting history of the Rome Statute to determine the correct interpretation of Art. 8(2)(b)(xviii) even if we accept a plain-meaning approach to treaty interpretation. (Which we should not.) Here is Art. 32 of the VCLT:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure.

Even though my understanding of the VCLT accords with Julian Davis Mortenson’s, I am willing to entertain the idea that the meaning of some provisions of the Rome Statute is so plain that we have no practical need to examine their drafting history. Art. 8(2)(b)(xviii), however, is not such a provision. Given the widespread disagreement among states concerning whether the war crime criminalises chemical and biological weapons, the best interpretation of Art. 8(2)(b)(xviii) is that it has no plain meaning.

Simon Lester of Worldtradelaw.net and the Cato Institute offered a very interesting pro-free trade argument against the inclusion of investor-state dispute settlement (ISDS) in trade agreements like the TransPacific Partnership or the Transatlantic Trade and Investment Partnership.  I disagree and we discussed and debated the issue today in a lively conversation hosted by Columbia University’s Center for Sustainable Investment.

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

U.S. commentary has largely celebrated the UNCLOS Arbitral Tribunal’s award finding it has jurisdiction to consider the merits on many of the Philippines’ South China Sea related claims against China.   Perhaps the most positive note is found in Jill Goldenziel’s essay at the Diplomat entitled, “International Law Is the Real Threat to China in the South China Sea.”

But just by getting this far, the case already has important implications for the use of international courts to manage and resolve international conflicts. International law has become a weapon of the weak. Countries that cannot afford or have no chance of winning military conflicts have increasingly turned to courts to resolve territorial, economic, and human rights claims. Other countries are closely watching the Philippines as they consider similar options for asserting their own rights in the South China Sea and beyond. Vietnam, in particular, is considering filing a similar lawsuit. At the very least, the case may force China to engage in talks with its neighbors to resolve competing claims to the South China Sea. By doing so, China can save face and claim to resolve the disputes on its own terms. If law can bring China to its knees, cases involving the South China Sea will have ripple effects far beyond its shores.

For my own part, I am much more skeptical about the benefits of an arbitral award for the Philippines. As I argued last year, there is little reason to think China will suffer serious reputational consequences for defying the UNCLOS Arbitral Tribunal’s award on jurisdiction or on the merits. Why?

Because other cases involving “weak” nations using international courts against “strong” nations shows that “strong” nations suffer few consequences and rarely change behavior significantly. The most similar case to Philippines v. China is probably the 1986 ICJ judgment in Nicaragua v. United States. That case (also brought by the Philippines’ current lawyer Paul Reichler) resulted in the U.S. withdrawing from the compulsory jurisdiction of the ICJ, not showing up for the merits argument, and ignoring the ICJ’s final judgment on the merits in that case. While the U.S. suffered some negative votes in the General Assembly and had to veto several Security Council resolutions, it is hard to argue that the U.S. “complied” with the ICJ judgment as a result of the reputational costs it suffered by walking away. The U.S. never paid the compensation the ICJ held that it owed, and it stopped mining Nicaraguan harbors only years later.

Russia has also recently demonstrated the ability of a “Strong” state to ignore an international court ruling. After detaining a Dutch-flagged Greenpeace vessel and its crew in 2013, Russia faced a provisional measures proceeding in the International Tribunal for the Law of the Sea. That tribunal ordered Russia to “promptly release” the vessel upon the posting of a bond and to release the crew as well.   Russia did not show up for the argument in court, and simply ignored the ITLOS order as well as a subsequent UNCLOS arbitral award.

Perhaps the Philippines will win some sort of leverage over China down the road by using a favorable award as a bargaining chip with China. But in the short-term, the Philippines has enraged China and has also led China to denounce (for the first time) the UNCLOS arbitral tribunal itself. It would not be impossible to imagine China announcing a withdrawal from UNCLOS (just to avoid the dispute settlement provisions) and simply adhering to UNCLOS as customary international law. That result will not be great for China, but I have a hard time seeing how it helps the Philippines either.

I’m in the middle of a week-long trip to Georgia, where I’m giving nine lectures in five days to the military and university students. (Thanks, Anna Dolidze, Deputy Minister of Defence and friend-of-OJ!) I’m talking about perfidy a couple of times, but most of the lectures — not surprisingly — are about the OTP’s request to open a formal investigation into the situation in Georgia. I’ve greatly enjoyed the lectures I’ve given so far, at Free University Tbilisi and at the Ministry of Defence. The questions have been uniformly intelligent and challenging. Today I’m heading to Gori to give lectures at the National Defence Academy.

In any case, a reader emailed me and asked whether I could send her the notes of my talk and the accompanying PowerPoint slides. I was happy to oblige, and I thought I might upload both to Opinio Juris, in case anyone else would like to see them. The notes are here, and the accompanying PowerPoint slides are here.

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

Africa

• Rebel fighters in South Sudan have released 13 United Nations workers who were held hostage for a week, the UN has said.
• Al-Shabab fighters in Somalia have struck again – managing to evade security measures to stage an attack in downtown Mogadishu.
• At least two soldiers and 11 militants were killed on Sunday in suspected Boko Haram attacks on two remote military posts in the Lake Chad area, Chad’s government and military sources said.

Middle East and Northern Africa

• Libya’s elected government has accused the Italian navy of violating the country’s territorial waters after authorities said they spotted three Italian warships off the eastern coast, but Italy’s government on Sunday dismissed the claim.

Asia

• South Korea, Japan, and China have agreed to restore trade and security ties, in addition to economic co-operation, after the countries’ leaders held their first three-way discussions in more than three years.
• Nepali police shot and killed an Indian citizen at a border checkpoint on Monday as they tried to clear protesters whose blockade has strangled Nepal’s fuel supplies and badly damaged relations between the neighbors.
• The U.S. and South Korean defense chiefs urged North Korea on Monday to immediately cease all activities related to its nuclear program and said they will have no tolerance for any military provocation by Pyongyang.
• Japan, which accepted less than a dozen asylum seekers last year, should show more leadership on refugees and craft an immigration policy given its need for foreign workers, a former U.N. High Commissioner for Refugees said on Thursday.

Europe

• Throughout Europe’s migrant crisis, Sweden has laid out the welcome mat for tens of thousands of asylum seekers, but in towns like Munkedal and other small communities, someone has replaced it with death threats and arson.
• The number of migrants and refugees entering Europe by sea last month was roughly the same as for the whole of 2014, United Nations refugee agency UNHCR said on Monday.
• The West is to blame for the refugee crisis confronting Europe after it interfered in the affairs of Middle Eastern countries to try and push its own values, such as democracy, but only caused chaos, a former senior Chinese diplomat has said.
• The European Union sided with Washington on Friday over a U.S.-Chinese patrolling incident in the South China Sea, in a move that may affect Brussels’ discussions with Beijing at next week’s Asia-Europe Meeting (ASEM) of foreign affairs ministers.

Americas

• The last British resident to be held in Guantánamo Bay, Shaker Aamer, has been released and has landed in the UK, having been detained for 13 years.
• Colombia’s FARC rebel group said its 3-month-old unilateral ceasefire, declared amid peace talks with the government to end 51 years of war, may be at risk because of a rise in military actions against its fighters.
• Disputes over territory in the South China Sea are causing countries in the region to increase their demand for an American security presence, the U.S. defense chief said on Sunday.

Oceania

• Australia is being forced to seek new countries to take its refugees after the Philippines said it won’t accept them.

UN/World

• The U.N. special envoy to Yemen said on Sunday he expects talks between its warring parties to begin by mid-November, eight months after the start of a messy civil war that has killed thousands and caused a humanitarian crisis.
• U.N. Secretary-General Ban Ki-moon and International Committee of the Red Cross President Peter Maurer made what they called an “unprecedented joint warning” on Saturday for states to stop conflicts, respect international law and aid refugees.

Announcements

• International Organisations and the Rule of Law: Perils and Promise, Victoria University of Wellington Faculty of Law, New Zealand, 7-8 December 2015. This symposium will take a fresh look at the resources that international law possesses to ensure that international organisations (IOs) are held accountable for their errors and excesses, while remaining relevant and effective in the face of ever growing global challenges. How can international law develop in a way that preserves and enhances the dynamic possibilities of IOs while making sure that they comply with the rule of law? Can the rule of law offer solutions, or is it part of the problem? The programme and registration form for the symposium are now available here.

Events

• Reminder: On November 5th, at 3.30:  Growing Competition Among International Courts and Tribunals, a panel organized by LPICT and the NYC bar. Speakers include Prof. Chester Brown (University of Sidney), Prof. Mathias Forteau (University of Paris Ouest-Nanterre), Prof. Makane Mbengue (University of Geneva), Mr. Eduardo Valencia-Ospina Editor-in-Chief of The Law and Practice of International Courts and Tribunals), Prof. August Reinisch (University of Vienna), Prof. Attila Tanzi (University of Bologna) and Dr. Catherine Tinker (Seton Hall University, Chair of the European Affairs Committee of the NYC Bar Association). More information here. The event is free, but you need to register.
• Reminder: November 5-7, 2015 | New York City – International Law Weekend 2015 Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. The conference will offer engaging panels on current problems and innovative solutions in both public and private international law. ILW begins Thursday evening, November 5, with a distinguished opening panel at the New York City Bar (42 W. 44th Street, New York, NY). A reception will follow and is open to all conference attendees. The conference continues Friday, November 6 and Saturday, November 7 at Fordham University School of Law (150 West 62nd Street, New York, NY). Friday’s activities feature a keynote address from Miguel de Serpa Soares, United Nations Under-Secretary-General for Legal Affairs and United Nations Legal Counsel. The event is organized by The American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA).
• On Tuesday, November 17th from 6:00 to 7:30 p.m., the Benjamin N. Cardozo School of Law  will host a Book Launch of Reconstructing Atrocity Prevention, edited by Sheri P. Rosenberg, Tibi Galis, and Alex Zucker. Please RSVP by November 3rd to info [at] auschwitzinstitute [dot] org.
• The Benjamin N. Cardozo School of Law will host “Three Presidents: Former Israeli Chief Justices in Conversation,” at 7:00 p.m. on November 9th. Please RSVP to saphir [at] yu [dot] edu (with “RSVP” noted in the subject line). For more information, visit The Israeli Supreme Court’s website, Versa.

Our previous events and announcements post 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.

I’ve received a few emails over the past couple of days wondering why I have not joined the now 500 scholars at UK universities who have pledged to boycott Israeli universities. The answer is that although I wholeheartedly support BDS in its economic and cultural forms, I am much more ambivalent about academic BDS. I agree with the boycotters that Israeli universities are deeply complicit in Israel’s systematic oppression of Palestinians. I’m fully aware that the too many Israeli academics either support that oppression or at least generally remain silent about it. And I know that most people who criticise academic BDS on “academic freedom” grounds could not care less about the academic freedom of Palestinians. But I simply cannot get past my belief that the boycott, at least as it is currently structured, is unfair to the (unfortunately small) number of Israeli academics who are brave enough to speak out against Israel’s policies.

To be sure, those who support the boycott insist that it targets Israeli universities, not individual Israeli scholars. The statement by the UK academics, for example, says that they will “continue to work with our Israeli colleagues in their individual capacities.” Similarly, the PACBI Guidelines for the International Academic Boycott of Israel provide that “[m]ere affiliation of Israeli scholars to an Israeli academic institution is… not grounds for applying the boycott” and clearly notes that Israeli academics can use their individual research budgets “in support of academic activities, such as attendance of international conferences and other academic events,” as long as they do not have to acknowledge that their funding comes from an Israeli institution.

I’m glad that the UK academics and PACBI are sensitive to the distinction between Israeli universities and Israeli scholars. But I still think the PACBI guidelines (which the UK statement endorses) harm Israeli scholars, including those that are critical of Israel, to an extent that makes it impossible for me to endorse academic BDS. Here, in relevant part, is what Guideline 10 prohibits (emphasis in original):

10. Serving as external reviewers for dissertations, writing recommendations or other forms of refereeing such as advising on hiring, promotion, tenure, and grant-making decisions at Israeli universities. International academics who choose to review the academic work of faculty or students at Israeli universities on a personal basis are not conflicting with the boycott guidelines, so long as their names are not used by those universities in any way (to gain legitimacy). Accepting to be on a dissertation, referee or review committee appointed by or serving an Israeli university, however, directly conflicts with the institutional boycott of these universities, as it legitimates Israel’s academic standing around the world. The boycott also applies to writing tenure or promotion recommendations addressed to university administrators.

I fail to see how  these restrictions target Israeli academic institutions, not individual Israeli scholars. If a left-wing Israeli scholar is already a full professor, academic BDS will not have a profound impact on her career. But any scholar is who is more junior is directly harmed by Guideline 10. If I supported academic BDS, I could not co-supervise a PhD student at an Israeli university or serve as her external examiner. Once she obtained her PhD, I could not help her get a job at an Israeli university. And after she became a lecturer, I could not write a letter on her behalf advocating her promotion or tenure.

These restrictions could easily be fatal to the career of a left-wing Israeli scholar — especially a more junior one. Given Israel’s increasing suppression of even the most tepid criticism of its policies, including (yes) by University administrations, it is unlikely that such a scholar will find many senior Israeli academics willing to supervise her dissertation, help her get a job in the Israeli academy, or support her promotion and tenure. And Guideline 10 prohibits non-Israeli scholars from providing her with that support. So the young Israeli scholar will end up facing a difficult choice: either find a PhD program or academic position overseas — which she may not be able to do, whether for family/financial reasons or because she wants to fight for change from within Israel — or abandon an academic career.

That’s troubling enough, but the systemic effects of academic BDS on the presence of left scholars in the Israeli academy are even more troubling. Academic BDS obviously has no effect on young right-wing scholars, who already outnumber their left-wing counterparts. Young right-wing scholars will have no problem finding more senior Israeli and non-Israeli scholars to supervise their dissertations, help them get jobs, and support their promotion and tenure. So academic BDS will simply ensure that, over time, then, left-wing scholars become more scarce in Israeli universities while right-wing scholars become ever more common.

Perhaps that’s okay. Perhaps the need to pressure Israel to change its policies is worth preventing left-wing Israelis from pursuing academic careers and ensuring that the Israeli academy becomes even more right-wing than it already is. If so supporters of academic BDS should say so openly, instead of claiming that the boycott doesn’t affect individual Israeli scholars. It does — which is why I can’t support it.