Environmental Law

For those interested in exploring international environmental law in a little more depth, a starting point would be the website for the UN Framework Convention on Climate Change. There are details there as well on the next conference, which is in Lima Peru next month. The next important Summit is in Paris next year. For more background on the science of climate change, the Intergovernmental Panel on Climate Change (IPCC) has produced some of the most authoritative reports, the latest of which (AR5, published earlier this year), is profoundly disturbing. Finally, you can find more information on the UN Environmental Program (UNEP) website.

British Court Allows Human Rights Claim

You may find interesting a case decided this week in which the High Court in the U.K. allowed the claim of an Pakistani detainee in Iraq to proceed against the British government for abuse by the British forces followed by torture by U.S. forces in Camp Nama and at Abu-Grahib. The cases raises immunity and jurisdiction issues as well as human rights and torture issues.

Nuclear Security or Standing Up to Aggression?

There is an interesting debate in The New York Times over the dilemma that the U.S. faces in how to deal with Russia - should it play down the response to Russian aggression in the Ukraine in the interest of advancing talks on disarmament and nuclear security? Or should it sacrifice those talks and possibly create instability in the nuclear equilibrium in order to confront Russia's unlawful use of force in Ukraine?

Where do you come down on the issue?

North Korea's Efforts to Avoid UN Censure on Human Rights

As The New York Times reports in today's paper, the North Korean government has been acting feverishly on a number of fronts to try to avoid censure by the UN General Assembly committee that oversees human rights. The resolution, if passed, could lead the UN Security Counsel to pass a resolution calling for the ICC to investigate specific allegations of abuse. Does this provide evidence that even pariah states with limited concern for reputation are nonetheless influenced by international law?

UPDATE: The UN committee that oversees human rights issues resoundingly approved the resolution condemning North Korea's human rights record, which will make the approval of a similar resolution by the General Assembly later this month a forgone conclusion. Now the question is whether the UN Security Council will refer the matter to the ICC.

The Definition of Aggression

As we take up the question of the definition of aggression today, for those interested in reading more about the issue, there is a good article on the subject at EJIL: Talk! on the definition the purposes of the Rome Statute of the ICC, which was decided upon at the international conference at Kampala two years ago. As discussed in the blog post, the new definition and associated "understandings" raise many interesting issues involving treaty interpretation.

The Kampala definition itself is as follows:For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

You may also want to look at the full text of UN General Assembly Resolutions 2626 (Declaration on Friendly Relations), and 3314 (Definition of Aggression), that we will discuss in class and are only excerpted in the text.

The US Changes Its Interpretation of Convention Against Torture!!

As we discussed in class last week, the US had to make submissions this month on its position regarding the US interpretation of the extraterritorial obligations under the CAT. The Obama administration has altered the US position so as to accept the more widely understood interpretation, that the CAT obligations regarding both torture and CID apply to state agents operating outside of the territory of the state. Bravo! Full story here.

Derogation and Threats to the Life of the Nation

In the Loveless case which we examine this week, which was an early case considering the latitude for states to derogate from rights obligations during times of national emergency, when the life of the nation is threatened, the Court was quite deferential to the state's interests. In thinking about this, you might be interested in looking at how the House of Lords more recently considered the issue of derogation from rights due to threats to the life of the nation, in A(F.C.) v. the Home Secretary [2004].

The case (you can find the full judgment here) involved the "certification" of the applicants under the Anti-Terrorism, Crime and Security Act, 2001, which permitted the government to detain persons so certified for an indefinite period. The government of the U.K. argued that the law constituted a permitted derogation from its obligations under the European Convention on Human Rights.

As part of the decision, Lord Hoffman considered what "the life of the nation" meant in Art. 15 of the Convention, and wrote as follows (continued below the fold):

Human Rights Committee and the United States

Above is another example of a Human Rights Committee observations in response to a state's periodic report, which each state submits pursuant to its obligations under the ICCPR. This is the Concluding Observations in response, issued earlier this year, to the most recent Periodic Report of the United States. The Fourth Periodic Report of the United States of America, submitted by the U.S. in 2011, to which this document is a response, can be found here.

You may also review here the submissions of the American NGO Human Rights Watch to the Human Rights Committee, criticizing the compliance record of the United States.

Consider whether such reporting, and resulting response from the Human Rights Committee, is effective as a mechanism for mobilizing compliance with state obligations.

Human Rights Committee Report on Israel

As we will discuss this coming week, the International Covenant on Civil and Political Rights (ICCPR), the most important human rights treaty, requires each party to submit periodic reports on the country's compliance with its obligations under the treaty. The Human Rights Committee, the institution charged with overseeing compliance with the ICCPR, issues "concluding observations", which are assessments of the state party's reports, and its compliance with its obligations.

The Human Rights Committee this week released a draft of its Concluding Observations on Israel's most recent report. A blog post on the issue is on Just Security, and for those interested there is a link there to the Human Rights Committee's report.

We will examine excerpts from past U.S. periodic reports and the HRC's concluding observations in relation thereto.

Sandel's "Justice" and Theories of Rights

As discussed in class, Prof. Michael Sandel's course entitled "Justice" at Harvard is a fantastic introduction to theories of rights and perspectives on moral philosophy, illustrating each with great dilemmas drawn from our current public discourse. Each class is just 25 minutes, and they are both entertaining as well as informative and thought provoking.

You can watch the classes as well as find introductory notes, questions, and reference to the detailed readings, at course website. You can also access and download the video/audio podcasts for each class on iTunes. Below is the first class.

Compound vs. Simple Interest

Further to our discussion of damages and costs in litigation, and the difference between compound and simple interest, here is a link to a spreadsheet that illustrates the power of compound interest. It includes the formulas you can use to calculate straight-forward compound interest.

Important to note is that an investment of $15,000 in an account earning compound interest, calculated and paid monthly, at a rate of 6% per annum, will earn $31,653.07 more in interest over a 20 year period, than an account earning simple interest at the same rate over the same period.

Compound interest is even more powerful when the principal is increasing with each period. So, if you took $2 each week (the amount you might be tempted to spend on lottery tickets), and invested it in an account earning 6% per annum compounded monthly (admittedly impossible to find in the current environment), at the end of 40 years your account (in which you would have only invested $4,160 over the 40 years) would be worth $15,953, or close to four times your investment. Make that $20 instead of $2, and the amounts become more interesting.

You can find a straight compound interest calculator here, and one which includes the addition of monthly contributions to principal  here.

The Response to Terrorism

This is a brilliant short essay on how we should think about responding to terrorism, which we will think about when we discuss both human rights and the use of force.

The Cuba Embargo

A few classes ago there was some discussion about the embargo on Cuba, during which I mentioned that there had recently been some interesting discussion on the issue, including a detailed argument by the New York Times editorial board, which may be found here. Fidel Castro actually respond to the New York Times editorial here.

There was also a rather startling revelation last month, from recently unclassified documents, that Henry Kissinger had developed plans for the invasion and "smashing" of Cuba in the mid-1970s due to Castro's military and political assistance in the conflict in Angola!

Interpretations and Reservations to the Convention Against Torture

We will come back to this issue when we get to Human Rights. But yesterday the New York Times reported that lawyers for the U.S. military and intelligence agencies are pressing the Obama Administration to affirm a George W. Bush era interpretation of the International Convention Against Torture (CAT) that limits the prohibitions against cruel, inhuman and degrading treatment (CID) to the territory of the state party. President Obama had himself rejected that interpretation as a Senator, and an Executive Order he issued in his first term prohibits torture and CID both at home and abroad.

There were excellent blog posts on Just Security both yesterday and today analyzing the purpose and intent, language, context, and drafting history of the CAT, as well as the reservations declared by the U.S. at the time of ratification. The posts explain that the treaty is clearly intended to and does impose obligations with respect to conduct in any territory under the jurisdiction of the state party, and that the reservations do not alter this fact. As well, one of the posts discusses why American government lawyers might be pressing for this restrictive interpretation.

Aside from the importance of the substantive issue of torture, it is an excellent review of the issue of treaty interpretation, the operation of reservations, and even some aspects of jurisdiction. Please take the time to read these.

Public International Law Visualized!

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We've just received a link to "International Law Visualized."  And we're impressed.

There are charts for these subjects:

• Three Types of International Law (Public, Private, and Supranational)
• Sources of [International] Law (Customary Law, Silence as Consent, Codifications, and Enforcement by the United Nations)
• The International Court of Justice
• The International Criminal Court
• Who is Affected by International Law (and for that matter, who isn't!!!)

Click here to have a look at the charts.

Historical Treaties

Have you wondered what the actual text was of the treaties that established the Peace of Westphalia, in 1625? Now you can read them for yourself, in a new on-line data base of historical treaties. Check some of them out!

U.N. Security Council Elections

For those who missed it, last week saw the elections to the U.N. Security Council. This is obviously tied to our discussion of the structure and operation of international organizations. This New York Times report will fill you in on both the process, and the big winners (Venezuela) and losers (Turkey).

ECHR Decision in Al-Skeini

Hazim Al-Skeini

As we will discuss in class this week, the European Court of Human Rights in July of 2011 handed down a judgment with respect to the same case that we examined today, the House of Lords decision in Al-Skeini v. Secretary of State for Defence, holding that the Iraqi nationals could make claims under the Convention, and finding that the UK had, among other things, violated the claimants' Art. 2 right to life. There is a summary and commentary on the judgment on the Lawfare blog here, and the decision itself is here.

Please take a look at the decision, and consider whether you still think that the House of Lords got it right (or wrong), and which decision you think better accords with international law principles on jurisdiction, and the rationale underlying those principles.

Russia Begins Restricting Dual Nationals

As we have wrapped up our discussion of nationality and in particular dual nationality, you may be interested in this article on steps Russia is taking with respect to dual nationals within Russia. Is this a violation of international law?

ILSA Quarterly

The International Law Students' Association quarterly magazine is available on-line here. Last year a Washburn student was one of the editors. You might find it both interesting, and potentially a medium in which to publish a short essay.

Sweden to Recognize Palestinian State

Further to our discussion of state recognition, and self-determination, Sweden announced last week that it would formally recognize the state of Palestine. Previous governments of Sweden had declined to do so primarily because, in its view, Palestine failed to satisfy one of the criteria for statehood in the Montevideo Convention, namely an effective government with control over its territory.

In related news, the Palestinian "Unity Government" - the reconciliation government that purports to represent both Gaza and the West Bank, will meet this week in Gaza. If this government, the legitimacy of which is opposed by Israel, is successful, it will eliminate one of the objections to the recognition of the Palestinian state.

Over 100 countries already recognize Palestine as a state, but Sweden is the first Western European state to do so.

UPDATED: Today the New York Times reported that Israel has formally protested the Swedish move.

How Do You Learn? Metacognition

This is a short video on how we learn, and how one can learn more effectively, which I think might be helpful. It is not long, so take a couple of minutes to check it out.

        

Air Strikes in Syria, and the Climate Summit

International law is everywhere in the news this week.

The U.S. began airstrikes against ISIS in Syria this week, which has led to questions about the legal authority for such strikes, and whether they are lawful under international law (some different views here, here, here, and here). The U.N. General Assembly is also getting under way, and President Obama spoke to the General Assembly today, making the legal and policy case for the strikes against ISIS.

There is also the climate change conference underway in New York this week (official site for the summit is here), in which the international community attempts to lay the foundation for a treaty to be agreed to in 2015 in Paris. The absence of India and China at the meeting has led to some pessimism. President Obama addressed the Summit earlier this week, below:

Scotland, Catalan, and Self-Determination

As we take up self-determination this week, how should we understand the Scottish referendum last week? (Here is a funny but quite informative video explaining the Scottish referendum to non-Brits). Were there international law issues at play?

The answers may come into stark relief if we compare the Scottish example (thinking through, for instance, what would have happened if the YES side had won), with that of Catalan in Spain, which is preparing to hold a referendum later this year. What are the differences? What are their significance from an international law perspective? What does the Quebec Secession Reference have to say about either case?

UPDATED: Meanwhile, in China a moderate human rights scholar and activist was just sentenced to life in prison for "seperatism", for advocating the right of self-determination for the Uighur people, and secession of the Xinjiang region in Western China.

Air Strikes in Syria and International Law

Returning to the issue of U.S. air strikes against ISIS in Syria, there have been some developments, and some scholarly debate on the issue since the last post.

Beginning with the debate, there is first Ryan Goodman of NYU on Just Security, followed by response there from Michael Lewis of Ohio Northern, and finally a response to both from Kevin Heller of LSE at Opinio Juris. Who do you think has the better argument?

Today, at a conference in Paris, the President of Iraq requested that the international community take action against ISIS in Syria in order to defend Iraq. Is there any legal significance to that? If so, why and what is the significance?

Scottish Referendum and International Law

As you will no doubt have seen in the news, Scotland is this week going to the polls to vote in a referendum on the question of independence. After over 300 years in the United Kingdom, the Scottish people may vote to secede and form an independent state. But what does international law have to say about this? What if the UK objected - would Scotland be free to secede then? What are the operative principles in play?

We will examine such questions in some detail in just a few weeks. But as this drama is unfolding this week, you may want to get a head-start on the issues! There is an "insta-symposium" beginning this week at Opinio Juris in which you can dive into the detailed legal issues.

Are Air Strikes Against ISIS in Syria Lawful?

Last night President Obama announced that the U.S. would commence air strikes against the non-state actor ISIS within the territory of Syria. It has already done so against ISIS (also known as ISIL) in Iraq. This has led to an explosion of debate (see, e.g., Opinio Juris, Just Security, and Lawfare) over whether President Obama requires Congressional approval for such strikes, or whether the Authorization to Use Military Force (AUMF), passed immediately after 9/11 and authorizing the use of force against Al Qaeda and other forces responsible for 9/11, is sufficient.

Less heard in the U.S., however, is any debate over whether such air strikes are lawful under international law. We will not get to the use of force for several more weeks - but what do you think? If you think them lawful, what would be the legal authority or justification for such strikes? If not lawful, why not?

U.S. Investigating Russian Treaty Violation

The question has been asked a few times in class, what happens when a treaty is violated? What are the sanctions? The answer varies according to the nature of the treaty and the parties involved, but one example is in the news today. The U.S. is currently investigating a Russian violation of a bilateral arms-control treaty. What will happen if it is determined that Russia violated the treaty?

Obama's Climate Accord - Not a Treaty?

The New York Times reported yesterday that President Obama was "Pursuing a Climate Accord in Lieu of a Treaty". What does this mean? Is an international accord not a treaty? How does it differ? Or is it only relevant as a matter of domestic law? Take a read of the article, and in light of what we have discussed in class today, post your thoughts!

UPDATE: Here is a blog post on this issue, on the international law blog Opinio Juris (something you should get in the habit of scanning). Note that this is as much about U.S. constitutional law as it is about international law. But it is interesting.

Successful Treaty on Land Mines

As we begin to examine the law of treaties, and consider the extent to which treaties successfully moderate or shape state behavior, here is a story from earlier this summer on how the relatively recently concluded Convention on the Prohibition on the Use, Production, Stockpiling and Transfer of Anti-Personnel Mines (the Ottawa Treaty), has had a fairly significant impact on the use of land-mines around the world.