Another Development in Climate Law

After Thanksgiving we will take up international environmental law. In addition to the Bonn conference that was ongoing last week, and about which I posted, this week there are developments in relation to the Kigali Amendment to the Montreal Protocol on HFCs, as explained in this article. We will certainly discuss this in class, so please read this.

Human Rights Naming and Shaming - Australia

Last week I posted a link to an article recounting how the Human Rights Committee had found Australia responsible for violations of the ICCPR rights of detained refugee claimants in Papua New Guinea. Today's New York Times has a prominent piece on the issues. This helps to illustrate how the mechanisms of the monitoring and observations system puts pressure on countries. Australia will most certainly feel the pressure of this kind of criticism in The New York Times, which was in turn a direct result of the Human Rights Committee's observations.

Back to Prescriptive Jurisdiction

Here is a short blog post explaining an application for certiorari to the Supreme Court in a case that involves the issue of extraterritorial application of American Anti-Trust law. If the Court takes up the case, it may lead to interesting new developments in the how the U.S. understands and applies international law principles on the the extraterritorial exercise of prescriptive jurisdiction.

Decisions Facing Congress on Torture

This post in Just Security from this week explores how Congress is facing a number of decisions that will test our commitment to the prohibition on torture going forward. It also, in the first few paragraphs, recounts how the CIA has mishandled its copy of the Senate Intelligence Committee report on torture.

Election of ICJ Judges

This last week saw the election of judges to the ICJ. As this account explains, it was an eventful election, with the British judge not winning re-election on the first ballot. But the article gives a good sense of how the elections work, and some of the dynamics in play.

Climate Change Talks This Week

We will not get to climate change and environmental law for another week or so, but there are important negotiations underway this week in Bonn, which you may want to read about before we get to the topic in class. The U.S. has a small delegation taking part, and many American cities and some states are also represented at the talks, notwithstanding the Trump administration's stated intention to withdraw from the Paris Agreement. As you probably know, while having stated the intention, the U.S. cannot withdraw until 2020 under the terms of the treaty.

Recent Developments on Extraterritoriality of ICCPR and HRC Reporting

There have been recent developments that help to highlight aspects of our discussion this week about the extraterritorial application of the ICCPR, and on the monitoring and reporting function of the Human Rights Committee! This week the Human Rights Committee held, in its Concluding Observations to Australia's latest Periodic Report, that Australia was responsible for the human rights violations suffered by refugee claimants being held in Manus Island, part of Papua New Guinea. It did so on the basis that Australia was exercising "effective control" over their situation. More background on the crisis on Manus Island can be found here.

Jurisdiction and the ICC

The Hague Prosecutor announced last week that she would request permission from the ICC to pursue charges for crimes committed in relation to the conflict in Afghanistan - which would within its scope the conduct of US forces in Afghanistan, as well as the conduct of the CIA at "Dark Sites" interrogating persons captured in Afghanistan. Consider how jurisdiction is being exercised here, against the US, even though the US is not a party to the Rome Statute (the ICC treaty).

[Update - here is another good analysis of the situation from a European perspective]

Simple vs. Compound Interest

Further to our discussion in class last week, and in preparation for discussing reparations this week, here is the old post on simple versus compound interest:


On 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.

More on Secession, Self-Determination and Catalonia

As you will all have seen from recent headlines, the secession issue in Spain has taken a turn for the worse, with what is developing as a crisis heading in to uncharted waters. Here is one of a series of blog posts on the legal issues surrounding the Catalonian claim. The risk of civil war is not trivial.

[Update] - this article is quite a good backgrounder on the entire Catalonian crisis.

Limits of Diplomatic Immunity

Just as we were discussing the international law principles on immunity, an issue of diplomatic immunity came up in the news. Here is a blog post analyzing a recent Supreme Court of the United Kingdom case, Reyes v. Al-Malki, which involved allegations of human trafficking against Saudi diplomats in England. The issues are not unlike those raised in the case I mentioned in class, involving a member of the Indian consulate in New York, who the district attorney wanted to charge for visa fraud in connection with the employment of a foreign laborer. You can read about the other case I mentioned, involving the CIA contractor in Pakistan, here - though there are many articles written about this incident. His detention complicated the planning around the killing of Osama Bin Laden.

Corporate Legal Personality and the Alien Tort Claim Statute

As most of you likely know, the Supreme Court of the United States just last week heard arguments in Jesner v. Arab Bank, which involved issues related to the Alien Tort Claim Statute, which was at the center of the Kiobel v. Royal Dutch Petroleum case that we examined in class. Here is a short blog post with commentary on the case, discussing the issue of corporate legal responsibility - does this comport with your thinking after our discussion in class?

Terrorism and Threats to the Life of the Nation

Further to our discussion last week about terrorism, and what constitutes a threat to the institutions of the state, or threats to the life of the nation, here is the excerpt from the House of Lords Case in A(F.C.) v. the Home Secretary [2004]. When we get to human rights in a week or so, we will come across this question again, in the Loveless case—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. As we will see, the Court was quite deferential to the state's interests in that case, but the House of Lords staked out a pretty high bar in A(F.C.) v. the Home Secretary.

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):

More on Iraq and Spain

The tension increased this weekend, with Iraqi armed forces starting to deploy into a threatening posture in the Kurdish territory of Iraq. Meanwhile, the deadline is nigh in Spain for the Catalonians to clarify what position they are taking.

Non-Recognition and Human Rights

We have discussed the extraterritorial reach of human rights briefly in class, and just wrapped up our discussion of the recognition and non-recognition of states. Here is a short blog-post that looks at how the issue of non-recognition (in Crimea and the Ukraine) is affecting the extraterritorial application of the European Convention of Human Rights in the current context.

More Secession and Self-Determination

As the claims for the right of secession and independence, based on the right of self-determination, continue to evolve in the Kurdish region of Iraq and in Catalonia in Spain, focus this week turned to two other secessionist movements: in Nigeria, and in Cameroon. Consider the relationship between these claims and the principle of uti posseditis that we studied a few classes ago.

The Kurds and the Catalonians - Self-Determination

As we discussed in class, the issue of self-determination is being raised in real time in two countries right now, and in both cases it is leading to significant crisis.

As we talked about, the Kurds have voted for independence, and the Iraqi government is responding with a heavy hand. Here is a legal analysis of the issues there.

After our last class, this Sunday, the Catalonian people voted in a plebiscite in Spain that the government and the Supreme Court had ruled to be illegal, and which law enforcement took efforts to block. The situation descended into chaos as the day wore on, and leaves many experts unsure how things are going to unfold.

Self-Determination This Week

As we take up the issue of Self-Determination this week, you will be interested to know that real issues relating to self-determination are unfolding on the world stage. First, the Kurdish people of Iraq are voting in a plebiscite today on whether the issue of independence and secession, which the Iraqi Prime Minister has threatened to respond to with force. The U.S. State Department, and the Iranian and Turkish Governments, have both announced their opposition to the movement.

At the same time, the people of the Catalonia region in Spain are planning a referendum there, which the Spanish government has vowed to block.

Do either situations satisfy the conditions necessary for external self-determination and a right to secession and independence? Would either region satisfy the Monte-Video principles for statehood if they did secede? Do you think that either should be granted independence? If one and not the other, on what basis?

United Nations General Assembly

 The United Nations General Assembly convenes this week, with speeches by heads of state and foreign ministers. The New York Times has a couple of articles on the history and role of the UN, and what people are watching for in this year's session of the General Assembly. There is considerable anticipation of what President Trump will say, both in his speech to the General Assembly, and in the margins. He had a brief meeting on Monday regarding UN reform, which is reported on here.

International Events This Week

There was no shortage of headlines implicating international law this week, most of them unfortunately bad. From humanitarian disaster in Myanmar, caused by the government violence against the Muslim minority called Rohingya, to a continuing humanitarian disaster in South Sudan due to internal armed conflict; to mounting tension in Spain due to the Catalonian bid for self-determination and independence. One of the worst ongoing humanitarian disasters is in Yemen, caused by both an internal armed conflict within Yemen, and the conflict between factions within Yemen and a coalition lead by Saudia Arabia, and supported by the U.S.

UN Security Council Meets on North Korea

As you all will know, North Korea tested a nuclear weapon over the weekend, claiming it was a thermonuclear device. The US Ambassador to the UN today urged a tough response to North Korea's actions, even as claims emerged that North Korea is preparing for yet further missile launches.

President Trump suggested in a Tweet that the U.S. might terminate all trade with countries that continue to trade with North Korea, which would potentially mean breaking off all trade with China. Meanwhile Secretary of Defense Mattis made a statement in which he said that the U.S. was prepared to launch a "massive military response" in the event that North Korea threatened the U.S. or its allies. Would either of these actions be lawful under international law? Why or why not?

As mentioned in class, the recent missile tests by North Korea, and the various proposals for how the United States and its allies should or could respond, raise a whole host of international law issues. Here is a recent article in The New York Times that discusses the facts and various policy options under discussion, and here is a blog post on a leading international law blog that discusses some of the legal issues. Finally, here is another short New York Times article from a few weeks ago that canvasses the question of whether a "pre-emptive" strike by the U.S. would be  lawful "self defense."

We will not get to examine "use of force" in detail until the end of the semester, but you can begin thinking about the issues. There will likely be a "lunch and learn" on the topic in the next few weeks. Feel free to raise questions and post comments in the comments section below.

Welcome to Public International Law, 2017!