The Source of the ICC’s Privileges and Immunities in Libya: Experts on Missions Immunity, Customary Immunity, or Immunity by Security Council Resolution?

Saif Al-Islam Gadaffi, son of recently deposed Libyan dictator Muammar Gaddafi, was captured last year by local officials in Zintan, Libya, and has been held there ever since. Although the International Criminal Court has had an arrest warrant issued for Saif since June 2011, and since Saif’s capture been requesting that Libya transfer him into the ICC’s custody, Saif has remained in the control of the Zintani militia.

Last week, an ICC defense lawyer and her translator were arrested in Libya for “spying” and for providing illegal assistance to Saif. The Zintani militia that detained Melinda Taylor, the defense attorney appointed by the ICC to represent Saif Al-Islam, are now claiming that she had transmitting secret letters to her client. Two other ICC officials who were with Taylor were not arrested, but opted to remain with her and her Lebanese translator:

The four were in Zintan so that Taylor could meet with her client, Saif al-Islam Qaddafi, to discuss his defense in the ICC case against him. The court issued an arrest warrant last June for Saif, as well as his father Muammar and former Libyan intelligence chief Abdullah al-Senussi, for crimes against humanity committed during the regime’s brutal attacks on civilian demonstrators in early 2011. Now, the Libyan authorities claim that Taylor and Assaf exchanged documents with Saif, and had “recording equipment” with them during the interview. Neither activity would be unusual for an attorney-client meeting, but Taylor and her team are supposedly being investigated on charges of spying. Libyan authorities have said that they will be held for 45 days, and frequent references to “threats to national security” do not inspire confidence in their fate thereafter.

The reaction of the international community to the arrests has been oddly muted, perhaps in part due to uncertainty regarding the legal status of Libya’s actions under international law. Although Taylor was an ICC agent who was arrested for performing her official duties, it is not clear that international law actually prohibits Libya from arresting Taylor in this situations. To muddy the waters even further, the arrest of the ICC agents follows right on the heels of Libya’s challenge to the ICC’s jurisdiction to even hear the case against Saif — the first such jurisdictional challenge that the ICC has faced in it short history.

The odd and unfortunate situation has come about as a result of the nature of the ICC’s jurisdiction over Saif Al-Islam, which was not derived from any treaty obligation incurred by Libya but rather through a resolution of the U.N. Security Council Resolution. Resolution 1970 (2011), which authorized the initial multilateral intervention in Libya, also contained a provision referring the situation in Libya to the ICC:

ICC referral

4.  Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

5.  Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

6.  Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

7.  Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

8.  Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

The ICC’s authorization to prosecute human rights violations in such situations is provided via Article 13(b) of the Rome Statute. Referral of a case by the Security Council is the only manner by which jurisdiction can be conveyed to the ICC for a crime committed in the territory of a state that is not a party to the Rome Statute.

But even with a Security Council referral, the ICC’s jurisdiction is not necessarily guaranteed — the other jurisdictional requirements contained in the Rome Statute must also be met. Although Libya did not voluntarily authorize ICC jurisdiction, it still has the right to challenge that jurisdiction under Article 19 of the Rome Statute. Libya is in fact currently pursuing a jurisdictional challenge in regards to the ICC’s jurisdiction to prosecute several of the would-be defendants, including Saif. Libya asserts that ICC jurisdiction would be improper under Article 17(1)(a) of the Rome Statute, as “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” In Libya’s May 1, 2012 filing to the ICC, Libya moved to have the case deemed inadmissible before the ICC, claiming that the new Libyan transitional government was properly pursuing criminal charges against Saif and the other defendants through Libya’s domestic criminal justice system.

The ICC has indicated, however, that it is not going to concede jurisdiction without a fight. On June 5th, just two days before the kidnapping of Taylor’s party, the Office of the Prosecutor (OTP) filed its response to Libya’s challenge. Although it was conceded that Libya had in fact brought domestic charges against the defendants, which under principles of complementarity would prevent the ICC from trying the case, the OTP concluded that Libya has failed to demonstrate that it has the practical ability to actually carry out a prosecution of Saif Al-Islam Gadaffi itself:

The Applicant has demonstrated that it has taken concrete steps to investigate the same person for the same conduct at issue in the case before the ICC. Further, there is no evidence to suggest that the Applicant is not genuine in its investigation and prosecution of Saif Al-Islam. However, there remain questions about its ability to advance the investigation and prosecution of Saif Al-Islam. Therefore the Court should accept the Applicant’s offer to provide further information, including the testimony of the General Prosecutor, to provide clarity on its ability to advance its case.

The OTP was concerned in particular about Libya’s failure to afford Saif Al-Islam with defense counsel:

However, despite the Applicant’s predictions at the time it filed its challenge on 1 May 2012, it does not appear that Saif Al-Islam has received a defence lawyer  within Libya, a precondition to presenting to him the charges and completing the  investigation under Libyan law”. This lack of progress could be related to the restrictions established because the Zintan militia exercise custody over him. The Prosecution is mindful of the substantial challenges faced by the Applicant, but this apparent lack of progress raises questions about whether the Applicant is able to “otherwise carry out its proceedings” within the meaning of Article 17(3). Therefore, the Prosecution submits that the Court should require the Applicant to appear before the Court to provide additional information on its ability to advance the investigation and prosecution of Saif Al-Islam.

Given the timing of these events, it could seem at first glance that the arrest of Taylor on June 7th was in retaliation to, or at least related to, the OTP’s filing on June 5th indicating that it intended to proceed with criminal charges before the ICC. There is another wrinkle, however — the Libyan transitional government was not responsible for the arrest of the ICC officials. Rather, it was a local Zintani militia group — the same group holding Saif Al-Islam — that detained the ICC defense counsel, apparently at the militia’s own initiative. The Zintani militia group has been holding Saif as a way of gaining leverage over the federal Libyan government, and now they may have decided to double up on their claims by taking the ICC staff as prisoners too.

So the whole situation is a mess right now. The ICC is claiming that it maintains jurisdiction to prosecute Saif for war crimes due, in part, to Libya’s inability to provide Saif with access to counsel. Local government actors in Libya have now kidnapped the ICC defense counsel that was being provided to Saif, for their own motives, which tends to confirm the ICC’s assessment regarding Libya’s ability to try Saif and the other defendants in its own courts. And the Libyan transitional government is still trying to argue that the ICC shouldn’t have jurisdiction to bring charges, but lacks sufficient control over the Zintani militia to either try Saif for itself or to free the ICC staff.

But while the arrest of the ICC defense counsel is clearly a poor diplomatic move on Libya’s part, it is less certain whether it also constitutes a breach of international law. Some commentators have suggested that the ICC staff have immunity from domestic judicial processes, but the source of such immunity is debatable.

1. The ICC’s Agents Have No Immunity in Libya through the Rome Statute. States Parties to the Rome Statute are obligated by Article 48 to provide the ICC with “such privileges and immunities as are necessary for the fulfilment of its purposes.” But Libya is not a party to the Rome Statute, and is not bound by any international obligations through that instrument. (Nor is Libya a party to the Agreement on Privileges and Immunities of the International Criminal Court, which supplements and expands the immunity of Court officials, but likewise only applies to states that are signatories to the instrument.)

Even though the Security Council has referred the situation in Libya to the ICC, that does not have the effect of conferring the treaty obligations contained in the Rome Statute onto Libya.  Paragraph 4 of Resolution 1970 did not, in itself, curtail any of Libya’s jurisdiction as sovereign, but instead expanded the jurisdictional reach of the ICC to permit it to bring charges against violators of human rights in Libya — in effect, the Security Council has delegate a sliver of its own administrative jurisdiction to the ICC, to permit it to bring charges against a crime that was otherwise not within its jurisdictional ambit. But the ICC was not granted any rights to enter the territory of a sovereign entity which had not already ceded those rights to the ICC via treaty.

[Update: Over at EJIL Talk, Dapo Akande makes the argument that the treaty obligations contained in the Rome Statute can also be imposed on a state by Security Council resolution. Article 48 of the Rome Statute, he argues, now applies to Libya

because the UN Security Council, in referring the Libyan situation to the Court, has imposed the Statute on Libya. In SC Res 1970, the SC decided that Libya shall cooperate with the ICC. That resolution does not make it explicit that this is an obligation to cooperate in accordance with the Statute. However, … the obligation to cooperate under SC Res 1970 is an obligation to cooperate in accordance with the Statute. It is the Rome Statute that defines and sets out the boundaries of Libya’s obligation to cooperate. Art. 48 is part of that obligation of cooperation. Just as ICC  parties have an obligation to accord immunities to ICC personnel, so does Libya. Indeed, this provision is absolutely crucial to the cooperation obligation. Were Libya not obliged to provide immunity to ICC personnel working on the situation referred to by the Security Council, the obligation to cooperate would be rendered meaningless. Libya would be able to frustrate ICC investigation simply by using its national law and legal processes to harass ICC staff.

This explanation is not entirely satisfying to me. Akande’s argument is that, through a one line resolution ordering Libya to “cooperate” with the ICC, the Security Council has essentially forced Libya to become party to the Rome Statute and incur all the obligations of a party to that treaty. But which parts of the Rome Statute? All of them? Or just the ones that the Court finds convenient to invoke? Why is Article 48 automatically applied to Libya, but not Article 88 — which mandates that “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part”? Or may Libya propose changes to the ICC’s Rules of Procedure and Evidence pursuant to Article 51? And what about financial contributions to the ICC — is Libya on the hooks for those too?

Secondly, the text of the Rome Statute does not necessarily support the claim that the entirety of the instrument applies to cases where jurisdiction is invoked through Article 13(b) — after all, the Rome Statute does clearly provide at different points provisions governing “States Parties” and other provisions that govern simply “a State.” This would imply “States Parties” refers only to parties, while “a State” includes both parties and states that have voluntarily accepting jurisdiction in a specific case or had jurisdiction forced upon them.

But, the Rome-Statute-Applies-Automatically argument certainly does make things more convenient. I’d just be more comfortable with it if the Security Council was required to be explicit before it could mandate a state’s accession to a treaty.]

2. The ICC officials have no immunity from domestic judicial process, but by arresting them, Libya is failing “to cooperate fully with the [ICC] and the Prosecutor”, as it is required to do by Security Council resolution. Over at Opinio Juris, Kevin Jon Heller has suggested that the immunity of the ICC officials derives solely from Security Council Resolution 1970. However, strictly speaking, this is not an argument that the ICC officials have “immunity.” That is, it is not that Taylor and her interpreter have a special immunity from judicial process under international law, but rather that Libya had a more general prohibition against failing to cooperate with the ICC. In the present situation, it so happens that  Libya’s failure “to cooperate fully with and provide any necessary assistance to” the ICC took the form of Libya’s decision to arrest the ICC’s officials. However, Libya would be equally in violation of international law had it, say, built a giant wall around Zintan that prevented Taylor and her interpreter from entering.

The claim that the ICC’s “immunity” is nothing more than a side effect of the Security Council’s mandate of cooperation is also supported by Article 87 of the Rome Statute, and Article 17 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. Article 17 of the Negotiated Relationship, which is titled “Cooperation between the Security Council of the United Nations and the Court,” provides at Section 3 that:

Where a matter has been referred to the Court by the Security Council and the Court makes a finding, pursuant to article 87, paragraph 5 (b) or paragraph 7, of the Statute, of a failure by a State to cooperate with the Court, the Court shall inform the Security Council or refer the matter to it, as the case may be, and the Registrar shall convey to the Security Council through the Secretary-General the decision of the Court, together with relevant information in the case.  The Security Council, through the Secretary-General, shall inform the Court through the Registrar of action, if any, taken by it under the circumstances.

In other words, the Security Council is the ultimate arbiter of whether or not a state is failing to abide by its command that the state in question cooperate with the ICC, and is the entity that is responsible for taking action when its orders are not being followed. Although the ICC has the ability to notify the Security Council of any incidents that may arise, the state’s obligation is solely to the Security Council and not to the Court. So, at least pursuant to Article 87 of the Rome Statute or Article 17 of the Negotiated Relationship, the proper procedure for the ICC in this situation is to refer the issue to the Security Council and let them decide how to figure it out. So far, however, the only sort of decisive action that the Security Council has taken in response to the matter is to release a press statement:

The members of the Security Council express serious concern over the detention in Libya since 7 June 2012 of the International Criminal Court (ICC) staff members, and urge Libyan authorities at all levels and all concerned to work towards immediate release of all the ICC staff members.

The members of the Security Council emphasize that it is the legal obligation of Libya under the Council’s resolution 1970 (2011) to cooperate fully with and provide any necessary assistance to the ICC pursuant to that resolution.

This press statement indicates that the Security Council is of the position that Libya’s obligation to release the ICC staff members is derived from resolution 1970, and not from an alternative source under international law. However, although Libya is certainly obligated to cooperate with the ICC pursuant to the Security Council resolution, this may not be the sole source of the rights of the ICC’s agents in Libya. Taylor, as the ICC appointed defense counsel for Saif, may also have true immunity under international law through two other sources, discussed below.

3. The ICC’s Agents May Have Immunity as Agents on Missions Pursuant to the Convention on the Privileges and Immunities of the United Nations. Because Libya has not ceded any of its jurisdiction to the ICC, any immunity that the ICC officials have comes not through the Rome Statute, but through the U.N. conventions to which Libya is a party. Pursuant to the Convention on the Privileges and Immunities of the United Nations (CPIUN), the U.N.’s officials are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.” However, as the ICC is not itself a U.N. agency, the ICC’s personnel are not covered by the terms of that instrument, at least not directly. But it is possible that, at least in this particular case, and owing to the nature of the ICC’s involvement in Libya, ICC officials have agent on mission immunity pursuant to the CPIUN.

Section 22 of the Convention on the Privileges and Immunities of the U.N. provides for immunity not just for U.N. officials, but also for “Experts on Missions for the United Nations”:

Experts  (other  than officials coming within the scope of article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded … immunity from personal arrest or detention and from seizure of their personal baggage[.]

Could the ICC defense counsel be Experts on Missions for the U.N., and therefore immune from criminal prosecution pursuant to the CPIUN? After all, the ICC’s jurisdiction to prosecute Saif was provided by the U.N.’s Security Councilm, and was supplemented by Paragraph 5 of Resolution 1970, which instructed that “Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” The ICC was only in Libya pursuant to the Security Council’s mandates, performing work that the Security Council had requested.

The question turns upon the meaning of “Experts on Missions” under the treaty. The ICJ’s Advisory Opinion

On the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations would lend some support to the claim, anyway:

The Court will … consider first what is meant by “experts on missions” for the purposes of Section 22, and then  the meaning to be attached  to  the expression “period  of  [the] missions”[.] …

The  General Convention  gives  no definition  of  “experts  on missions”. Al1 it does is to clarify two points, one negative and the other positive. From Section 22 it is clear, first that the officials of the Organization, even if chosen in consideration of their technical expertise in a particular field, are not included in the category of experts within the meaning of that provision; and secondly that only experts performing missions for the United Nations are covered by Section 22. The Section does not, however, furnish any indication  of  the nature,  duration  or place  of these missions.

Nor is there really any guidance in this respect to be found in the travaux préparatoires of the General Convention. The Convention was initially drafted and submitted to the General Assembly by the Preparatory Commission set up at San Francisco in June 1945; that initial draft did not contain anything corresponding to the present Article VI. That article was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee to examine the draft, but the contemporary official records do not make it possible to ascertain the reasons for the addition

The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an officia1 of the Organization, and to guarantee them “such privileges and immunities as are necessary for the independent exercise of their functions”. The experts thus appointed or  elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission. …

To sum up, the [International Court of Justice] takes the view that Section 22 of the General Convention is applicable to persons (other than United Nations officials) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions; that during the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel; and that those privileges and immunities may be invoked as against the State of nationality or of residence unless a reservation to Section 22 of the General Convention has been validly made by that State.

Although Taylor was clearly acting on behalf of the ICC at the time of her arrest, she was acting on a mission that had been delegated to the ICC by the Security Council. Possibly, then, that is sufficient to grant her immunity from prosecution under Article 22 of the CPIUN, as the ICJ’s Advisory Opinion is clear that it is not necessary for the expert to have a contract with the U.N. or to be paid by the U.N. to be entitled to immunity. “Experts on Missions” are determined not by their administrative title, but by the nature of their mission, and their immunity extends to the extent necessary to permit the expert to carry out her duties.

As Taylor was on a mission to serve as defense counsel for Saif Al-Islam, and that mission was performed at the (albeit indirect) behest of the Security Council, and as Libya’s arrest of Taylor interfered with the ICC’s ability to afford a criminal defendant with the right to counsel that is provided both by international law and by the Rome Statute, Taylor may have had immunity from prosecution pursuant to the CPIUN.

4. The ICC’s Agents May Have Functional Immunity by Operation of Customary International Law. It is also possible that the ICC officials’ immunity from criminal prosecution exists entirely apart from any treaty or convention. Although diplomatic immunity is often codified in treaties and other international instruments, it is also a part of customary international law, at least as it applies to the foreign officials of sovereigns. But do agents of international organizations, like the agents of foreign states, posses functional immunity under customary international law?

Functional immunity, as opposed to the more general immunity ratione personae granted to heads of states and other diplomatic bigwigs, is the immunity of foreign officials in relation to acts performed in their official capacity. If Taylor had been acting on behalf of a foreign state rather than an international organization, she would not be entitled to any general immunity under customary international law, but she would likely be entitled to functional immunity. As counsel for Saif, it was Taylor’s performance of her official duties that lead to her arrest — and thus functional immunity would presumably apply.

However, Taylor was not acting in Libya on behalf of a foreign state, but on behalf of an international organization. Whether or not the customary norm of diplomatic immunity extends to officials acting on behalf of international organizations in general, or to officials of the ICC in particular, remains an unsettled question. There is conflicting domestic case precedent cutting both ways, and although the state practice is largely there, measuring the opinion juris in this situation is made somewhat difficult by the lack of official pronouncements.

In any event, the question of the ICC official’s diplomatic immunity under customary international law is more convoluted than I care to get into in this blog post, but there is a decent argument to be made that such a norm  of immunity does in fact exist. Even if agents of international organizations are not granted a blanket immunity under CIL, for instance, they could have immunity in circumstances such as those surrounding Melinda Taylor’s presence in Libya. It could also be bolstered in this particular case by other tenants of international law, as a showing that the functions carried out by Taylor as an IO agent, and for which she is arrested, are the sort of functions for which IO agents are customarily immune from sovereign interference, even if there is no generally applicable immunity.  For instance, human rights law provides for a right to assistance of counsel in all criminal proceedings —  and a norm providing ICC defense counsel with immunity from criminal prosecution that is intended to interfere with that right would be consistent with both human rights norms and with the norms of diplomatic immunity as applied to states. Similarly, this customary norm of IO immunity could be held to apply automatically to IO agents that are in a state pursuant to a lawfully ordered intervention. That is, when the Security Council takes the step of interfering with a state’s sovereignty by ordering that the state accept certain IO officials and agents into its territory, there could be an implicit norm that the Security Council has also usurped the state’s sovereign right not merely to exclude that person, but also to pursue criminal charges against that person for engaging in the acts that they were sent to the state to perform.


Alabama Passes Law Against U.N. Conspiracy to Destroy Freedom

In my previous post on the United State’s failure to ratify the U.N. Convention on the Law of Sea, I discussed how U.S. opposition to international organizations as a whole has manifested as symbolic opposition to that treaty in particular. Because of the relatively low stakes that have been at play when it comes to ratifying or not ratifying the Convention, political factions have largely ignored the merits of joining LOST, and instead have turned ratification of LOST into a more general referendum on whether or not international organizations are bad for America.

It turns out that there is currently an even better example of such symbolic anti-UN posturing. Conservative groups hostile to U.S. engagement with international organizations have a new cause célèbre to advocate against: Agenda 21.

Agenda 21 is a United Nations “action plan” designed to promote an international commitment to sustainable development. It was adopted by the UN in 1992 as a “a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area in which human impacts on the environment.” But Agenda 21 is a squishy, aspirational document. It has zero teeth, and is more akin to an advertising campaign than to international law. It is not promoted by any specific bloc of states, and it is not designed to defuse any active political conflicts.

Which means Agenda 21 is the perfect anti-UN scapegoat. “Opposing” Agenda 21 is harmless and devoid of immediate practical consequences — there is no risk of offending any specific state by opposing it, nor any risk that opposition to Agenda 21 could have any serious consequences to our international relations.

And so Agenda 21 has been chosen as a pet cause to rally anti-UN sentiment behind. To many conservative organizations, Agenda 21 is a nefarious plot designed to destroy national sovereignty, eliminate private property rights, and establish a socialist world government. It is alleged that Agenda 21 seeks the following goals: [PDF]

  • The step by step abolition of private property, primarily through the implementation of the Wildlands Project and Smart Growth.
  • Education of youth to prepare them for global citizenship.
  • Control and ultimate reduction of human population

Moreover, they believe that Agenda 21 is a real and immediate threat to American freedoms, which will eliminate capitalism and property rights through the introduction of initiatives such as “Smart Growth development standards in every metropolitan area within the United States,” which would implement plans for “a concentration of high rise living, ‘mixed use buildings,’ ‘walkable communities’ with mass transit such as light rail, and bicycle trails.” God save us all.

In January of this year, the Republican National Committee decided to don the tinfoil cap as well, and adopted a “Resolution Exposing United Nations Agenda 21” into its national party platform:

WHEREAS, the United Nations Agenda 21 is a comprehensive plan of extreme environmentalism, social engineering, and global political control that was initiated at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, in 1992; and,

WHEREAS, the United Nations Agenda 21 is being covertly pushed into local communities throughout the United States of America through the International Council of Local Environmental Initiatives (ICLEI) through local “sustainable development” policies such as Smart Growth, Wildlands Project, Resilient Cities, Regional Visioning Projects, and other “Green” or “Alternative” projects; and,

WHEREAS, this United Nations Agenda 21 plan of radical so-called “sustainable development” views the American way of life of private property ownership, single family homes, private car ownership and individual travel choices, and privately owned farms; all as destructive to the environment; and,

WHEREAS, according to the United Nations Agenda 21 policy, social justice is described as the right and opportunity of all people to benefit equally from the resources afforded  us by society and the environment which would be accomplished by socialist/communist redistribution of wealth; and,

WHEREAS, according to the United Nations Agenda 21 policy National sovereignty is deemed a social injustice; now therefore be

RESOLVED, the Republican National Committee recognizes the destructive and insidious nature of United Nations Agenda 21 and hereby exposes to the public and public policy makers the dangerous intent of the plan; and therefore be it further

RESOLVED , that the U.S. government and no state or local government is legally bound by the United Nations Agenda 21 treaty in that it has never been endorsed by the (U.S.) Senate, and therefore be it further

RESOLVED, that the federal and state and local governments across the country be well informed of the underlying harmful implications of implementation of United Nations Agenda 21 destructive strategies for “sustainable development” and we hereby endorse rejection of its radical policies and rejection of any grant monies attached to it, and therefore be it further

RESOLVED, that upon the approval of this resolution the Republican National Committee shall deliver a copy of this resolution to each of the Republican members of Congress, all Republican candidates for Congress, all Republican candidates for President who qualify for RNC sanctioned debates, and to each Republican state and territorial party office and recommend for adoption into the Republican Party Platform at the 2012 Convention.

In response to the RNC’s Resolution, state legislatures all around the U.S. have been bravely combatting the threat of United Nations Agenda 21, by passing symbolic resolutions declaring Agenda 21 to be a threat to capitalism, the U.S., and single family homes.

It’s kind of poetic, in a way. Largely symbolic resolutions, being passed to combat largely symbolic declarations.

But it’s also completely insane. True, there is not much harm to be had from such antics, but to some degree it could undermine the Federal government’s ability to speak in a unified voice when it comes to international environmental law and policy. And also it makes America look like a bunch of complete idiots.

So far, three states  —  Kansas, Tennessee, and Alabama —  have passed resolutions or laws intended to protect America from Agenda 21.

Of the three, Alabama wins the award for nuttiest legislative initiative. Last week, Alabama’s governor signed into law an act prohibiting Alabaman state agencies from entering into any contractual relations with unspecified “non-governmental and inter-governmental organizations”:

Under existing law, the state, subject to certain federal laws or rules, has the right to develop its environmental and developmental policies. This bill would prohibit the State of Alabama and its political subdivisions from adopting and developing environmental and developmental policies that, without due process, would infringe or restrict the private property rights of the owner of the property.


(b) The State of Alabama and all political subdivisions may not adopt or implement policy recommendations that deliberately or inadvertently infringe or restrict private property rights without due process, as may be required by policy recommendations originating in, or traceable to “Agenda 21,” adopted by the United Nations in 1992 at its Conference on Environment and Development or any other international law or ancillary plan of action that contravenes the Constitution of the United States or the Constitution of the State of Alabama.

(c) Since the United Nations has accredited and enlisted numerous non-governmental and inter-governmental organizations to assist in the implementation of its policies relative to Agenda 21 around the world, the State of Alabama and all political subdivisions may not enter into any agreement, expend any sum of money, or receive funds contracting services, or giving [sic] financial aid to or from those non-governmental and inter-governmental organizations as defined in Agenda 21.

According to the executive director of the Alabama Republican Party, the Alabama Act is intended to “shelter Alabamians” from “a precursor for the creation of a world government.”

Tennessee and Kansas both passed more symbolic anti-Agenda 21 resolutions. The one passed in Tennessee was almost identical to the Resolution as adopted by the Republican National Committee, but  Tennessee did at least take the step of correcting one of the resolution’s blatant inaccuracies. It replaced this resolving paragraph

BE IT FURTHER RESOLVED, that neither the U.S. government nor any state or local government is legally bound by the United Nations Agenda 21 treaty in that it has never been endorsed by the U.S. Senate


BE IT FURTHER RESOLVED, that neither the U.S. government nor any state or  local government is legally bound by the United Nations Agenda 21 in that it is not treaty [sic] which has ever been endorsed by the U.S. Senate.

One would think that the qualifier “which has ever been endorsed by the U.S. Senate” would be rendered unnecessary by the fact that Agenda 21 is not, in fact, instrument that could be endorsed by the Senate in the first place. Apparently not.

In addition to the three states that passed bills, an Anti-Agenda 21 bill remains pending in Louisiana. Luckily, although Georgia, Arizona, and Minnesota also considered similar resolutions, those states ultimately decided against joining the conspiracy theorists. New Hampshire’s House of Representatives likewise had the good sense to kill a similar bill, which would have created a committee to “study procedures to prevent the implementation of United Nations Agenda 21 into the state, counties, regional commissions, towns, and cities; other implementation by nongovernmental organizations; the clarification of constitutional issues relevant to the study; and any related concerns with the implementation of United Nations Agenda 21.”

But Alabama and the Republican National Committee, at least, are not going to stand idly by while our freedoms and rights are trampled by the international community. Without laws symbolically denouncing this socialist conspiracy, our great Nation could be at risk from the horrors of mixed-use buildings and bicycle trails.


China’s Assessment of Human Rights in America

Every year, the United States releases its Country Reports on Human Rights Practices, which assess the human rights records of every other state and almost-state on the planet.

And, every year, the Information Office of the State Council of the People’s Republic of China releases its own report, assessing the human rights record of precisely one country: the United States.

China’s report on the Human Rights Record of the United States in 2010 was just released, and, as always, it gives a funhouse mirror’s eye-view of the U.S.’s record. The report is an unapologetic retaliation against the U.S.’s “malicious design to pursue hegemony under the pretext of human rights”, and contains a hodgepodge of truths, half-truths, and extremely dubious statistics. It also collects approximately every negative statistic about the U.S. that any report has ever found, conveniently compiling them into one rather unshocking exposé. It is also hypocritical, of course, but that is not worth noting — any human rights assessment of another nation is bound to be hypocritical, unless maybe if you’re Sweden or Denmark or somewhere hippy like that. The problem with the Chinese report is therefore not the amount of hypocrisy it contains, but rather the amount of batshit craziness. A few of my favorite passages are as follows:

The census report released on September 16, 2010 showed that working women are paid only 77 cents for every dollar earned by a man.

Shhh, careful there, China. Wouldn’t want the MRAs to hear you make such claims, or they’ll leave lots of nasty comments on your blog.

Every year, one out of every five people is a victim of a crime in the United States. No other nation on earth has a rate that is higher.

You know, I guess it is probably true that no nation on earth is more likely to have a citizen be a victim of crime in the United States than the United States is. That is the only to read those sentences that makes any sort of sense at all.

The number of American people without health insurance increased progressively every year.

China must have missed the news that we’re Socialists, now.

The Atlanta Journal-Constitution reported on November 19, 2010 that a large group of human rights organizations prepared to hold a vigil in South Georgia in support of suspected illegal immigrants being held in a prison in Lumpkin.

Ah, good old Lumpkin County. As goes Lumpkin, so goes the nation.

The ACLU and the U.S. Travel Association have been getting thousands of complaints about airport security measures.

Allowing domestic civil rights groups and private citizens to complain about their government with impunity is definitely a sign of human rights abuses.

A report on The Wall Street Journal on September 7, 2010, said the Department of Homeland Security (DHS) was sued over its policies that allegedly authorize the search and seizure of laptops, cellphones and other electronic devices without a reasonable suspicion of wrongdoing. The policies were claimed to leave no limit on how long the DHS can keep a traveler’ s devices or on the scope of private information that can be searched, copied or detained. There is no provision for judicial approval or supervision.

And the founding fathers’ failure to plug up the border search exception is iron-clad proof that they had zero respect for human liberty.

Minority groups confront discrimination in their employment and occupation. The black people are treated unfairly or excluded in promotion, welfare and employment.

The black people?

The New York Times reported on April 26, 2010 that Wal-Mart was accused of systematically paying women less than men, giving them smaller raises and offering women fewer opportunities for promotion in the biggest employment discrimination case in the nation’s history.

Allowing judicial redress for claims of wrongful discrimination is yet another blatant sign of political oppression.

Bullying is most prevalent in third grade, when almost 25 percent of students reported being bullied two, three or more times a month.

American Third Grade Classrooms: Fourth Member of the Axis of Evil.

Almost 1.8 million [children] are abducted and nearly 600,000 children live in foster care.

That’s right. 1.8 million children are abducted every year, and the U.S. is doing nothing to stop it. Why won’t someone think of the children!

Pornographic content is rampant on the Internet and severely harms American children.

Only by implementing firewalls that censor 90% of the internet can a nation truly protect human rights. And the children.

While advocating Internet freedom, the U.S. in fact imposes fairly strict restriction on cyberspace. On June 24, 2010, the U.S. Senate Committee on Homeland Security and Governmental Affairs approved the Protecting Cyberspace as a National Asset Act, which will give the federal government ‘absolute power’ to shut down the Internet under a declared national emergency… The United States applies double standards on Internet freedom by requesting unrestricted ‘Internet freedom’ in other countries, which becomes an important diplomatic tool for the United States to impose pressure and seek hegemony, and imposing strict restriction within its territory.

Wait, what the hell? Where on earth did China get that idea…

Handing government the power to control the Internet will only be the first step towards a greatly restricted Internet system, whereby individual IDs and government permission would be required to operate a website (Prison, June 25, 2010).

Ohhhhh, well that explains a lot.

As a final note, report is also apparently blind to the irony that China’s access to these facts about the U.S. human rights record is only possible due to the U.S.’s liberal stances towards freedom of speech.

However, while the U.S.’s Country Reports on Human Rights Practices is an invaluable resource for monitoring the protections afforded to human rights worldwide, and one that is not currently matched by any other state or NGO, the Country Reports do inevitably and unavoidably leave the United States wide open to charges of hypocrisy and double standards. And that’s fine — there definitely is something hypocritical about highlighting others’ failures where you yourself still have work to do. But the United States has acknowledged and to some extent embraced its critics’ charges:

We do not consider views about our performance voiced by others in the international community to be interference in our internal affairs, nor should other governments regard expressions about their performance as such. Indeed, under the Universal Declaration of Human Rights, it is the right and the responsibility of ‘every individual and every organ of society to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.’

Self-criticism has never been a natural talent of sovereigns, and it is a safe bet that if the U.S. did include a self-assessment of its human rights record, it would have been nothing more than a philosophical puff-piece or abstract celebration of Freedom Yay!! — as was, say, the U.S.’s report of its human rights records, submitted to the UNHRC in November, 2010. So to the extent that there is a void where it comes to examining America’s human rights record, China — and Russia — are not wrong. But the solution is not to call on the U.S. to stop highlighting others’ failures, but to have more even states join in on the fun so that they, too, can call out the human rights abuses of other nations whenever they get the chance.

Like, for instance, the U.S.’s treatment of PFC Manning. I still don’t get how the Chinese report went for over 13 pages, and never once mentioned that.


Corporate Participation in International Law: Some Historical Examples

It has probably become apparent by now that the idea that corporations are noncognizable under international law is one that irritates me to no end. There is, obviously, a great deal of unsettled law out there regarding exactly how liability for violations of international law accrues to non-state entities. But corporations have played a vital role in the development of international law for just about as long as “international law” can be said to have existed, and there is no historical basis for the idea that corporations cannot, as a matter of law, be a participant in or violator of international law.

At some point I will write some more on the subject, but for now, I want to at least throw some links up that give some historical examples. The Transnational Corporation in History: Lessons for Today? is a highly recommended starting point. It gives a good overview of how the legal character of corporations has developed, and how the private/public distinction has always been unclear, oftentimes deliberately so:

Corporations and states are commonly represented as having an oppositional relationship. Corporations represent the private; states represent the public. Corporations represent the efficient, the natural, and the spontaneous; states represent the inefficient and the contrived. The ascendancy of the corporation means the decline of the state. But these commonly held views are ahistorical and tend to ignore the complex relationships between states and corporations. Modern incorporation is simply a matter of fulfilling formal registration requirements. There are few surviving remnants of the old notion that incorporation is a privilege conferred by the state. This Article aims to redress the balance somewhat by telling aspects of the history of the corporate form that have been obscured by modern forms of incorporation and modern conceptions of the public and the private. In a modest way this Article intends to show just how recent the public/private paradigm actually is and how selectively such concepts have been applied.

Compared with the French trading companies generally, the English and Dutch companies were considered to be much more independent and able to operate at arms length from their respective governments. The agents of the Dutch and English companies were regarded as employees and servants of groups of merchants, rather than the subordinates of their governments. The British considered themselves traders first and territorial rulers second. Of course, the proper mix of the East India Company’s functions was contested, tended to be in the eye of the beholder, and changed dramatically over the period of the company’s existence.

And how questions over the status of corporation under international law are not new:

The British East India Company certainly took advantage of its ambiguous status—successfully emphasizing its sovereign powers when it wished to avoid contractual debts to local rulers, protesting to the Royal Navy that its status would be reduced in the eyes of the locals if it had to acknowledge the superiority of the British naval fleet, and all the time relying for its trading advantage on the might of British naval power and on the calculated and limited use of force. It charged merchants fees for safe passage and was able to do so as an exercise of its monopoly and sovereign powers. It was graphically and finally reminded of its subordinate status, however, when Queen Victoria took over from the company in 1858. The company had survived in various guises and with mixed public and private motives for 250 years.

But throughout the 18th and 19th centuries, corporations were assumed to be competent at conducting activities that, today, we generally believe only a true sovereign could do. Corporations could start wars, engage in diplomacy, claim new territories, and enter into international agreements. Treaties between corporations and state or state-like entities flourished during this time period, i.e., the treaty between the Dutch East India Company and the Ali Raja, the Treaty of Giyanti, and the Treaty of Allahabad. Some treaties, such as the treaty between the British East India Company and nascent Singapore, lead to the creation of what would eventually become modern day nation states.

Also worth checking out is this 1769 letter, An Enquiry Into the Rights of the East India Company of Making War and Peace and of Possessing Their Territorial Acquisitions Without the Participation or Inspection of the British Government, which gives a good example of how, even then, people were confused about how sovereign a corporation could be, when there was no “official” grant of sovereignty.

I am not trying to say that the role of corporations in international law is crystal clear — it is obviously not. But the idea that corporations are unrecognizable under international law, and that states can use the corporate form to immunize the profits its citizens have made from engaging in violations of international law, is an extremely modern one, and in its own way is a very radical idea.


ICRC Launches Customary Humanitarian Law Database

The International Committee for the Red Cross has launched its Customary International Humanitarian Law Database, and it is a huge time waster. Or huge time-saver, I guess, if your work actually involves IHL, but for me it’s pretty much just a shiny new method of procrastination.

This thing is seriously comprehensive — it’s the best free resource on Customary International Law I can think of, and the database is pretty much idiot-proof to navigate. In addition to looking at the practice records of particular countries, you can also look at a listing of the state practice for any given IHL rule. The ICRC has listed of 161 identified norms of customary international law relating to humanitarian law, and provides the practice in support thereof for reach. (The rules are not intended to be a comprehensive listing of all of customary humanitarian law: “As the approach chosen [by the ICRC] does not analyse each treaty provision with a view to establishing whether or not it is customary, it cannot be concluded that any particular treaty rule is not customary merely because it does not appear as such in this study”. But the ICRC does not seem to have missed much.)

For instance, take ICRC’s Rule 86 of IHL: The use of laser weapons that are specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision is prohibited.

This would normally be a somewhat difficult norm of CIL to research, in part because it is one of those “accelerated CIL norms” that has come into being rather recently and rather abruptly, and in part because it’s a norm of CIL that states have not really had an opportunity to violate in the first place. To quote China’s statements upon the adoption of Protocol IV to the Convention on Certain Conventional Weapons, “this is the first time in human history that a kind of inhumane weapon is declared illegal and prohibited before it is actually used.” So it could take a bit of digging to determine if there truly is CIL prohibiting the use of blinding lasers … or if nations simply haven’t developed the technology to implement such weapons, yet, and therefore the total absence of state practice refuting the norm is meaningless.

But as it turns out, there is actually vastly more examples of state practice behind the norm than I would have guessed. If any domestic or international tribunal wanted proof that such a norm of IHL genuinely existed and was actually accepted as law by the world’s nations, they wouldn’t need to look much further.

A database like this ought to exist for all of customary international law. The difficulty, of course, is in ensuring that the database administrator is operating from a neutral and objective standpoint, diligently compiling incidents of conformance and non-conformance with alleged CIL norms. From what I’ve seen so far, the ICRC’s database of IHL does a good job of that, but it would be far too easy for a database to selectively include or exclude particular examples of state practice to create a warped view of how robust the norm truly is.


The International Law Scholarship of Samuel Clemens

Mark Twain’s recently re-released The Treaty With China: Its Provisions Explained is a fascinating read. As the Journal of Transnational American Studies, Spring 2010, writes:

A good candidate for ‘the most under-appreciated work by Mark Twain’ would be ‘The Treaty With China,’ which he published in the New York Tribune in 1868. This piece, which is an early statement of Twain’s opposition to imperialism and which conveys his vision of how the U.S. ought to behave on the global stage, has not been reprinted since its original publication until now.

Mark Twain’s approach to the rights of “the Chinaman” were rather exceptional for his time period, and his commentary on the treaty is not what I would have expected. I hadn’t known of Twain’s interest in international law, but I feel as if his opening comments on the 1868 Treaty ought to be inscribed on the inside cover of an international law casebook somewhere: “Apart from its grave importance, the subject is really as entertaining as any I know of.”

The text of the treaty itself and Twain’s comments on it are equally fascinating, if for no other reason then for the jarring contrasts displayed between the treaties of today and the treaties of the 1800s, as well as for Twain’s own curmudgeonly and yet empathetic racism. On the portion of the treaty allowing for naturalization of Chinese residents, he writes:

The idea of making negroes citizens of the United States was startling and disagreeable to me, but I have become reconciled to it; and being reconciled to it, and the ice being broken and the principle established, I am now ready for all comers. The idea of seeing a Chinaman a citizen of the United States would have been almost appalling to me a few years ago, but I suppose I can live through it now.

This is, keep in mind, the opinions of a man who was a radical for his day, and who was considered to be something of an extremist on the issue of racial equality.

Twain’s droll asides about tangential matters of international affairs are also entertaining:

It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

But one part of the essay that caught my eye was Article 4, which provides for freedom of religion for both U.S. and Chinese citizens.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”—Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion.

The Tianjin Treaty of 1858 was an unequal treaty, entered into at the conclusion of the first part of the second Opium War. Although a series of bilateral treaties were created, France, England, the U.S., and Russia were all involved in forcing the Chinese Empire into granting each of them a large number of concessions. It also provided for the protection of Christian missionaries and their converts in China:

ARTICLE XXIX: The principles of the Christian religion, as professed by the Protestant and Roman Catholic churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quietly profess and teach these doctrines shall not be harassed or persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teach and practice the principles of Christianity, shall in no case be interfered with or molested.

Now there’s an interesting piece of treaty work. As far as I am aware, it was never the subject of a court case, although it would have been extremely interesting to see the outcome if it had been. Under modern application of the First Amendment, this portion of the treaty is clearly a violation of the Establishment Clause, and therefore ineffective as a matter of domestic law. However, the law only puts an obligation on a foreign state, and not on the U.S. — on both a domestic and international level, the U.S. is not required to enact any laws or take any actions as a result of this Article, so it is extremely unlikely any plaintiff would have ever had standing to challenge it. But even if it is Constitutionally null, such a treaty would still exist on the international plane, leaving China with an obligation to the U.S. to protect its Christian converts.

More than anything, I love the fact that in 1858, the idea of international law being used to impose duties upon a nation with regard to how it treated its own citizens had already been established. Of course, it only restricts how China is to treat its Christian citizens, but still — a limited international law recognizing freedom of religion did exist, in the mid-19th century. And the 1868 version of the treaty is even more expansive, although it provides only for the protection of non-Christian Americans in China. Non-Christians in China were, alas, left unregulated by international law. Still, Twain seemed to feel that the protection of religious freedoms in China was already well provided for:

China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion’s sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China.

Interestingly, Twain had a much less favorable opinion on the degree of religious tolerance displayed in America:

If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn’t peddle his eternal truths in this market.


The Japanese Prostitutes-for-Whaleburgers Programme

Tomorrow, the International Whaling Commission meets for the beginning of its 5-day conference in Agadir, Morocco. The annual conference will be of particular importance this year, due to Australia’s decision to move ahead with its claims before the ICJ against Japan, based upon the latter’s whaling activities.

Although there has been a moratorium on whaling since 1986, Japan (as well as Iceland and Norway) have continued whaling under the “research exception” of the Convention for the Regulation of Whaling.

Article VIII, section 1 of the Convention provides as follows:

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.

So it’s not clear cut who has got the better side of the argument, here. “Scientific research” is not defined elsewhere in the Convention, and, if this case does make it up to the ICJ, the Court will have a fairly complex question of treaty interpretation to grapple with.

Japan is, currently, hunting whales for what can fairly be characterized as commercial purposes. However, Japan is also using the whales it kills to conduct research, through its Institute of Cetacean Research. Although debate continues about the necessity of using lethal methods for whale research, it would not be accurate to characterize Japan’s whale research programs as merely a front for the commercial operations — the research on the whale populations is genuine.

On the other hand, the principle of good faith in treaty interpretation would seem to prevent construing the Convention to allow the “research” exception to encompass any sort of whale harvesting that also incidentally includes a research component. The ICJ will have a difficult task before them, in determining whether or not the Japanese research whaling fleet is authorized as a matter of law.

But if the judicial process does not go Japan’s way, there’s always the political method. And, if things go the way the pro-whaling nations hope, the upcoming IWC conference in Morocco could ultimately lift the whaling moratorium, rendering Australia’s claims moot.

I’ve talked before on this blog about Nauru’s practice of selling its recognition power. China and Abkhazia both essentially purchased Nauru’s recognition of their statehood, through the use of foreign aid. A similar situation has now developed with regards to the IWC, and Japan is engaging in very direct forms of diplomacy in order to secure more votes for the pro-whaling coalition.

Currently, 88 states are parties to the Convention, and any state that wishes to join may do so. Most of these countries, however, are not themselves whaling states, nor do any whales live in their jurisdictions. Eight of member states are actually landlocked territories. For countries that have no strong interest in whales or whaling, the decision of whether to prohibit or allow whaling on international waters is a decision controlled less by State preference, and more upon which option will garner them the most diplomatic favor. As a result, the vote-buying has been pretty blatant.

The Caribbean states all largely vote along with Japan on whaling issues, and receive large amounts of aid from Japan in return. The Pacific is more divided, as some of the countries there have been wooed by Japan, while others have been bought out by Australia and New Zealand. The Marshall Islands and Kiribati are among those Pacific Island states who receive aid from Japan and vote with the pro-whaling bloc in return.

What is interesting about Japan’s purchasing of pro-whaling votes, however, is the form of compensation offered. Although some of the compensation consists of fairly standard foreign aid packages, or the paying of smaller states’ IWC fees, or covering the travel costs for their diplomats to attend the IWC conference, some of Japan’s tactics are more questionable.

Other forms of compensation include providing prostitutes to foreign diplomats, giving government officials generous “discretionary expenses funds” for their visits to Japan or IWC conferences, and providing diplomats with lavish vacations. Although generally I disagree with those who characterize this sort of compensation-based diplomacy as a form of “bribery,” in this case, the label does seem to fit.

Japan’s justification for this particular brand of diplomacy is that the IWC is abusing its mission by failing to have adequate membership requirements. Some Japanese politicians go as far as to argue that only pro-whaling nations should be permitted to join the IWC, because the goal of the IWC is to regulate the harvesting of whales — and countries that do not harvest any do not have any legitimate interest in setting that number.

They do have something of a point. The object and purpose of the Whaling Convention clearly indicates an intention to protect whale stocks in order to create a sustainable global whaling industry. The purpose of the IWC was not to work towards the complete elimination of whaling, but rather to ensure the preservation of the earth’s whale resources so that commercial harvesting could continue — and by allowing in any country that wants to join, the IWC is letting states with no economic or territorial interest in whales to exert control over states like Japan.

But the prevalence of schemes through which smaller states sell out there international-law-making-power in exchange for cash poses something of a long term dilemma for customary international law. CIL is developed through a combination of state action and opinio juris, but for international legal issues in which “state action” is only conducted by a bare handful of states — such as with whaling — or where there state action consists of a nebulous act of “recognition”, having opinio juris be determined by who’s writing the biggest checks undermines the credibility of the whole process.


First President Steals Copy of Vattel’s Law of Nations, Uses It To Break Treaty With France

On Oct. 5, 1789, President Washington checked out Vattel’s Law of Nations from the Manhattan library, and failed to return it. He has now wracked up a $300K late fee on that and another volume, although the odds of collecting on the debt are, as the library acknowledges, remote.

I’m not so disappointed in GW’s failure to return the book as I am in the fact he had to borrow a copy of Law of Nations at all. Surely the man should have possessed his own copy of the book. After all, Vattel was a significant influence on the U.S. Constitution — but then again, maybe GW only got around to reading it until after the Constitution had been finished up, and suddenly George found himself in charge of faithfully executing what was in it.

Even before George Washington was president, however, he would have dealt with people quoting Vattel at him. John Jay, the future first Chief Justice, wrote to GW, who was presiding over the Constitutional Convention, and made a recommendation to him regarding the requirements of holding office under the new Constitution. Jay’s letter borrows the phrasing of “natural born citizen” from Vattel’s Law of Nations:

“Permit me to hint, whether it would be wise and reasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

Still, perhaps George Washington made good use of his stolen copy of the Law of Nations. Less than four years after he checked it out, in 1793, Vattel played an important role in an early United States’ foreign affairs crisis, when the actions of the French ambassador, Edmond-Charles Genêt, threaten America’s neutrality to European conflicts. Hamilton and Jefferson wrote to Genêt, in which they defended the right of the United States to suspend the treaties in place between itself and France. Vattel, they conceded, had written that there was a “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.” However, Hamilton argued that, although France may have had a right to changes its government, France did not have any right to force the United States to become involved in that civil conflict. If international law allowed for such a situation, “[t]his would be to give to a nation or society, not only a power over its own happiness, but a power over the happiness of other Nations or Societies. It would be to extend the operations of the maxim, much beyond the reason of it—which is simply, that every Nation ought to have a right to provide for its own happiness.”

This was (and is) a pretty subtle question of international law, really. In the case of a nation torn by civil war, to which faction is a duty arising to that country under international law owed? To the established government? To the belligerents? At what point do the belligerents become the establishment, and are therefore the inheritors of the rights and duties under treaties incurred by previous administrations?

Young America, following a policy of neutrality set by President Washington, simply did not want to become involved. Ambassador Genêt was less than impressed with the Washington Administration’s reliance on the subtleties of international law, however. He wrote back, angrily, accusing the federal government of “bring[ing] forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”

This all sounds pretty familiar, really. For as long as the U.S. has been a nation, it has been using complicated interpretations of international law in order to avoid duties incurred under treaties. And for all the haters out there who think America shouldn’t bother itself with international law, I say that if it was good enough for George Washington to steal, it’s good enough for us to pay attention to today.


“Untreated Chronic Pain Violates International Law”

When I saw the above headline, it struck me immediately as a possible contender for the Most Absurd Claim To A Customary Norm of International Law Yet. (Even one of my long time favorites, the ATS case involving the use of under-aged camel jockeys, had a better basis.) Although there is a very good case to be made that, under international law, states have a duty to avoid causing chronic pain in their citizens, there is hardly one whit of support for the idea that they are obliged to treat it.

It turns out the story is based upon a Human Rights Watch Report [PDF] that presents access to narcotics and relief from chronic pain as a human right enshrined under international law. Somewhat surprisingly, HRW starts not with a CIL argument, but claims that that the right to treatment of chronic pain is a treaty based obligation. For this they cite a single paragraph of the preamble of the Single Convention on Narcotic Drugs of 1961, which provides that the signatory states are

Concerned with the health and welfare of mankind, [and]

Recogniz[e] that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes…

Unfortunately for the HRW report, however, the Convention was clearly not intended to address the availability of pain medication, but rather was entered into by states in an effort to curb cross-border drug trafficking. “Pain” or “suffering” is not mentioned again in the treaty’s text. Even giving it the most generous interpretation, all this language signifies is that the object and purpose of the treaty is to reduce world drug trafficking while not also prohibiting the legitimate medical use of narcotics.

The HRW report also undermines any claims that the Single Convention on Narcotic Drugs of 1961 is the basis of a customary norm that has developed since the treaty entered into force. According to the HRW report, “approximately 80 percent of the world population has either no or insufficient access to treatment for moderate to severe pain.” Given the total absence of any opinio juris on the subject, a mere 20% compliance rate does not a norm make.

I will not even address the report’s batpoop crazy claim that the well established and more-or-less globally accepted norm against cruel, inhumane, and degrading treatment applies to chronic pain, because “[a]s part of this positive obligation [against CITD], states have to take steps to protect people from unnecessary pain related to a health condition.” Seriously, HRW?

I suppose I could accept that the right to treatment of chronic pain qualifies as an aspirational norm, albeit a pretty weak one. The World Health Organization does list codeine and morphine on its Model List of Essential Medicines, a list signifying those drugs which states should endeavor to make available to all of their citizens that need them. But that’s about the most I can say for the study’s claims.

Of course, all of this is definitely not to suggest that the report does not in fact identify a genuine problem. As HRW notes, “Burkina Faso estimates that 8 people need morphine per year. Gabon estimates 14. The Gambia, 31.” Hard to argue with a need for education and reform there. But by cloaking every worthy policy suggestion in a nonsensical guise of “international law,” HRW is actually undermining the rule of international law on the global plane.


Samantar v. Yousuf…

… was anticlimactic. Although we succeeded in running into quite a few GW Law people, we did not succeed in getting seated. (I may have succeeded in getting frostbite, however.)

Poor Michael was #52 in line, and they only let a grand total of 50 in. So he has the distinction of being the second loser. Although the first loser had it worst — it was the second time in which he had been the first person to not get seated at a hearing. I will accept some responsibility for us missing the hearing, as I had the bright idea of changing our meet up time from 6am to 7am. Poor form, I know.

The guards stationed in front of the steps informed us that it had been less crowded for friggin’ McDonald than it was for Samantar, which is ridiculous, because it was rainy and cold and Samantar does not involve guns.

Also I still maintain that Michael lost his spot to Harold Koh, who came waltzing across the plaza with his entourage about five minutes before the oral argument started. Excuse me, sir, I do not believe that the U.S. is a party to this case, so you can just go wait in line with the rest of us, thank you very much.

Anyway, as a very poor consolation prize, we were at least in the first group for the silly 3-5 minute viewing exercise they have for tourists. Didn’t really see or hear much, though. The transcripts are up for the case now, but I think at this point I will have to put off reading it until tomorrow. Will probably have more thoughts then.

But I swear, if I ever find out that that class of 8-10 year olds that was let in got seated and we didn’t, I will lose all faith in American democracy.