The Use of Force and the Next President

As we wrap up our examination of the use of force and the jus ad bellum regime, you may be interested to read that John Bellinger last week delivered an address at the Supreme Court on "Law and the Use of Force", and he has published parts of his speech in Lawfare here. Is it consistent with what we have been discussing? If not, how so? Please comment below.

Aggression and the Use of Force

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.

Threats to the Life of the Nation

In the Loveless case which we examined last 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):

The Looming Torture Debate

As we began to discuss in class on Monday, there is already increasing discussion in scholarly and policy circles about the status of law and policy on torture. This is driven in part by statements that were made by Donald Trump during the campaign, in which he said that torture works, and that he would bring back water-boarding and much worse (for later statements along the same lines, see here).

It will be recalled that President Obama issued an Executive Order early in his first term prohibiting torture and lesser forms of coercive interrogation techniques, and that prohibition was consolidated in law last year. But there are rising concerns that the next administration may overturn these prohibitions and re-introduce interrogation techniques that constitute torture or cruel inhuman and degrading treatment. See, for example, this article on Lawfare, and this one at The Intercept.

Meanwhile, on Nov. 15 the ICC prosecutor stated that preliminary inquiry indicates that U.S. forces may have committed war crimes, including torture, in Afghanistan, thus signaling that the ICC may be getting ready to announce a full-fledged official investigation into U.S. conduct in the Afghan conflict.

On the psychological impact on victims of the U.S. interrogation program, see The New York Times special investigative reports here, here, and here.

A Post-Human Rights Agenda for International Law in the Age of Trump

Prof. Ingrig Wuerth, in a blogpost on Lawfare, examines the likely negative impact of a Trump presidency on international law, and in particular on human rights. It is an interesting analysis of recent trends towards the weakening of human rights regimes, and how human rights regimes have actually weakened international law more generally, and she makes an argument for how the Trump administration should approach the issue of protecting human rights

Justice and Human 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.

Developments in Nuclear Weapons Disarmament

This New York Times article recounts American allegations that Russia is violating one of the more important and successful nuclear weapons arms control treaties.

The United Nations General Assembly overwhelmingly passed a resolution calling for the commencement of negotiations in 2017 for a treaty aimed at banning nuclear weapons. The Guardian article on the move can be found here, and the resolution itself here. Most of the nuclear weapons states, including the U.S. and Russia, voted against the resolution.

Huge International Agreement on Climate Change

You will likely have seen the news that there was an international agreement reached to limit the use of HFCs, the chemical used most commonly in refrigerators. 170 countries agreed to the deal negotiated in Kigali, and it is said that it will likely have a greater impact, and is certainly more enforceable, than the Paris Climate Change Accord. How did they manage to get the deal? How is it that the U.S. government is able to ratify it without obtaining the advice and consent of the Senate?

Meanwhile, here is some analysis on the entry into force of the Paris Climate Change Accord.

ICJ Decision on Marshall Islands and Nuclear Weapons

Here is a preliminary analysis of the ICJ decision dismissing the case brought by the Marshall Islands against three of the nuclear weapons states. Note that the basis for the decision was something we just this week covered in class. Be sure to read this, and consider whether the excerpt of the case provided in this blog post is consistent with what we read and discussed this week in our consideration of dispute resolution and the jurisdiction of the ICJ.

JASTA and Sovereign Immunity

As we discussed briefly in class on Thursday, the big news this week is the override of President Obama's veto of the Justice Against Supporters of Terrorism Act (JASTA), and what this means for the doctrine of sovereign immunity. Here is one blog post that analyses the question of whether JASTA is inconsistent with international law; and here is an "initial analysis" of the effects of the new law. Ironically, members of Congress are now voicing regret for having voted to override the veto.

U.N. Sec. Gen. Seeks Quick Ratification of Climate Accord

This article in The New York Times describes how U.N. Secretary General Ban Ki Moon is making a huge effort to have the Paris Climate Change Accord ratified before a new president can be inaugurated in the U.S. Note the timelines for ratification, and the conditions precedent to the Accord coming into force, discussed in the article. Why is it that the next president would be bound for at least 4 years if the Accord comes into force by January?

Justice Against Sponsors of Terrorism Act and Sovereign Immunity

We will come to the issue of sovereign immunity in a few weeks. But this last Friday Congress passed a piece of legislation that would allow families of the victims of the 9/11 attacks to sue the government of Saudi Arabia in U.S. Courts. A Washington Post account of the legislation is here. This in effect eliminates the sovereign immunity of states in U.S. courts if certain conditions are met. The legislation has been opposed by the White House, many policy makers and most international law scholars, as the legislation will place the U.S. offside the international law principles on sovereign immunity, and will likely result in other countries doing likewise to allow law suits against the U.S. government. An example of the arguments against it can be found in Just Security post this weekend here.

What do you think? We will revisit the issue once we have examined the doctrine of sovereign immunity, and we can discuss then whether your views have changed.

U.S. and China Commit to Paris Climate Agreement

This last weekend the United States and China came together to adopt the Paris Climate Agreement, as reported in The New York Times in this article. But what does that mean? Is the Paris Climate Agreement a treaty? How would you know? And if it is, what exactly was the meaning of the announcement? Did the U.S. and China become parties to the treaty with this so-called "adoption"?