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Transcript
ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW
NOVA SOUTHEASTERN UNIVERSITY
SHEPARD BROAD LAW CENTER
Volume 20
Spring 2014
Number 2
Executive and Editorial Board Members for 2013-2014:
EDITOR-IN-CHIEF
Kevin Koushel
MANAGING EDITOR
Jennifer Valiyi
Casey Noto
EXECUTIVE EDITOR
Tal Harari
LEAD ARTICLES EDITOR
Luz Nieto
SUBSCRIPTIONS EDITOR
Matthew Wasserman
BILINGUAL EDITOR
Nicole Bagdadi
LEAD TECHNICAL EDITOR
Laura Garcia
ASSOCIATE MANAGING EDITOR
Nga Nguyen
ASSOCIATE EXECUTIVE EDITOR
Leilani Sorogon
ASSOCIATE BILINGUAL EDITOR
Yelina Angulo
ASSOCIATE TECHNICAL EDITOR
Xia Xia Terranova
ARTICLES EDITOR
Dominique
Venetsanopoulos
ARTICLES EDITOR
Elizabeth Kata
ARTICLES EDITOR
Courtney Milam
FACULTY ADVISORS:
Douglas Donoho, Professor of Law
Roma Perez, Professor of Law
i
JUNIOR STAFF MEMBERS:
Majd “JD” Asaad
Sandra Bahamonde
Marta Garcia Barcia
Christina Black
Henry “Jessie” Brewer
Gregory Bromley
Stephanie Chocron
Jordan Dulcie
Christopher Dutton
Ellie Einhorn
Nadine Foehl
Andrew Friednash
Matthew Gottlieb
Matthew Hinds
Nicole Johansson
Brianna Jones
Ryan Knight
Lindsay Lawrence
Casey Noto
Antonio Nieves Meza
Shai Ozery
Thomas Patti
Gabriela Perez-Dumois
Stefanie Salomon
James Smith
Ronald Smith
Mauricio Vaca
Alessandra Villaraos
Mark Wu
Christina Zanakos
ii
NOVA SOUTHEASTERN UNIVERSITY
SHEPARD BROAD LAW CENTER
OFFICE OF THE DEAN
Elena Langan, B.A., J.D., Interim Dean, Associate Dean for Academic
Affairs, and Associate Professor of Law
Linda F. Harrison, B.A., J.D., Executive Assistant to Associate Dean—
Academic Affairs, Associate Dean, Critical Skills Program, and
Associate Professor of Law
Carey Courson, Executive Assistant to Interim Dean
DEANS AND DIRECTORS
Lynn Acosta, B.A., M.S., Assistant Dean for Student Services
Catherine Arcabascio, B.A., J.D., Associate Dean, International, Online
and Graduate Programs and Professor of Law
Timothy Arcaro, B.S., J.D., Associate Dean, AAMPLE and Online Programs
and Professor of Law
Meg Chandelle, B.S., M.B.A., J.D., Director of Advanced Lawyering Skills &
Values and Adjunct Professor of Law
Olympia Duhart, B.A., J.D., Director of First-Year Lawyering Skills &
Values Program and Professor of Law
Linda F. Harrison, B.A., J.D., Executive Assistant to Associate Dean—
Academic Affairs, Associate Dean, Critical Skills Program, and
Associate Professor of Law
Jennifer Jarema, B.A., M.S., Director of Communications, Publications, and
Special Events
Doug Kruse, B.A., M.S., Director of Development
Robert Levine, B.S., J.D. Assistant Dean of Career & Professional
Development and Adjunct Professor
Jennifer McIntyre, B. S., M.S., Assistant Dean for Online Programs
Josh Metz, B.S., B.S., B.A., C.P.A., Director of Administrative Operations
Janet Mosseri, B.S., J.D., Associate Dean, Student Affairs
William Perez, B.A., Assistant Dean, Admissions
Nancy Kelly Sanguigni, B.S., M.B.A., Assistant Dean, Clinical Programs
Eric Young, B.A., M.L.S., J.D. Assistant Dean, Law Library & Technology
Center and Associate Professor of Law
FACULTY
John B. Anderson, B.A., J.D., LL.M., Distinguished Visiting Professor of
Law
Catherine Arcabascio, B.A., J.D., Associate Dean, International, Online
and Graduate Programs and Professor of Law
Timothy Arcaro, B.S., J.D., Associate Dean, AAMPLE and Online Programs
and Professor of Law
iii
Heather Baxter, B.A., J.D., Associate Professor of Law
Brion Blackwelder, B.S., J.D., Director, Children & Families Clinic and
Associate Professor of Law
Randolph Braccialarghe, B.A., J.D., Professor of Law
Ronald B. Brown, B.S.M.E., J.D., LL.M., Professor of Law
Johnny C. Burris, B.G.S., J.D., LL.M., Professor of Law
Marilyn Cane, B.A., J.D., Professor of Law
Timothy A. Canova, B.A., J.D., Professor of Law and Public Finance
Kathy Cerminara, B.S., J.D., LL.M., J.S.D., Professor of Law
Megan F. Chaney, B.A., J.D., Associate Professor of Law
Phyllis G. Coleman, B.S., M.Ed., J.D., Professor of Law
Leslie Larkin Cooney, B.S., J.D., Professor of Law
Jane Ellen Cross, B.A., J.D., Director, Caribbean Law Programs and
Associate Professor of Law
Debra Moss Curtis, B.A., J.D., Professor of Law
Michael J. Dale, B.A., J.D., Professor of Law
Mark Dobson, B.A., J.D., LL.M., Professor of Law
Douglas Lee Donoho, B.A., J.D., LL.M., Professor of Law
Olympia Duhart, B.A., J.D., Director, First-Year Lawyering Skills & Values
Program and Professor of Law
Lynn A. Epstein, B.S., J.D., Professor of Law
Michael Flynn, B.A., J.D., Professor of Law
Amanda Foster, B.A., J.D., Assistant Professor of Law
Pearl Goldman, B.C.L., M. Phil., LL.B., J.D., LL.M., Professor of Law
Joseph M. Grohman, B.A., M.A., J.D., Professor of Law and Executive
Dean for Faculty Development, NSU
Richard Grosso, B.S., J.D., Director, Environmental & Land Use Law
Clinic and Professor of Law
Joseph D. Harbaugh, B.S., J.D., LL.B., LL.M., Dean Emeritus and
Professor of Law
Linda F. Harrison, B.A., J.D., Executive Assistant to Associate Dean—
Academic Affairs, Associate Dean, Critical Skills Program, and
Associate Professor of Law
Joseph Hnylka, B.A., J.D., Associate Professor of Law
Areto Imoukhuede, B. A., J.D., Professor of Law
Robert M. Jarvis, B.A., J.D., LL.M., Professor of Law
Judith Karp, B.A., M.L.S., J.D., Professor of Law
Shahabudeen Khan, B.S., J.D., Assistant Professor of Law
Ishaq Kundawala, B.A., J.D., Professor of Law
P. Camille Lamar, B.A., J.D., Associate Professor of Law
Elena Langan, B.A., J.D., Interim Dean, Associate Dean for Academic
Affairs, and Associate Professor of Law
James B. Levy, B.A., J.D., Associate Professor of Law
Kenneth Lewis, Jr., B.A., J.D., Associate Professor of Law
Donna Litman, A.B., J.D., Professor of Law
Elena Marty-Nelson, B.A., J.D., LL.M., Professor of Law
Michael R. Masinter, B.A., J.D., Professor of Law
Jani E. Maurer, B.A., J.D., Professor of Law
Joel A. Mintz, B.A., J.D., LL.M., J.S.D., Professor of Law
Roma Perez, B.A., J.D., Associate Professor of Law
iv
Gail L. Richmond, A.B., M.B.A., J.D., Professor of Law
Michael L. Richmond, A.B., M.S.L.S., J.D., Professor of Law
Eloisa C. Rodriguez-Dod, B.B.A., M.B.A., J.D., Professor of Law
Bruce S. Rogow, B.B.A., J.D., Professor of Law
Marc Rohr, B.A., J.D., Professor of Law
John Sanchez, B.A., J.D., LL.M., Professor of Law
Florence Shu-Acquaye, LL.B., LL.M., J.S.M., J.S.D., Professor of Law
Charlene Smith, B.A, M.A., J.D., LL.M., Professor of Law
Athornia Steele, J.D. Professor of Law
Michele Struffolino, M.A Ed., JD., Associate Professor of Law
Fran L. Tetunic, B.A., J.D., Director, Alternative Dispute Resolution Clinic
and Professor of Law
Marilyn Uzdavines, Assistant Professor of Law
Kathryn Webber, B.A., J.D., Assistant Professor of Law
James D. Wilets, B.A., M.A., J.D., Professor of Law
Steven Wisotsky, B.A., J.D., LL.M., Professor of Law
Eric Young, B.A., M.L.S., J.D. Assistant Dean, Law Library & Technology
Center and Associate Professor of Law
ADJUNCT FACULTY
Antoinette Appel, B.A., M.A., Ph.D., Jason Katz, B.S., J.D.
J.D.
Daniel L. Kaufman, B.S., J.D.
Karina S. Arzumanova, B.A., J.D., Sue Ellen Kenny, B.A., J.D.
Kamran Khurshid, B.S., J.D.
M.S.
Ira Kurzban, B.S., J.D.
Scott Atherton, B.S., J.D.
Neil Karadbil, B.A., J.D.
Ross Baer, B.A., J.D.
Ken Kugler, B.A., J.D.
Denise L. Baker, B.A., J.D.
Warren Kwavnick, B.C., J.D.
Steve Ballinger, B.A., J.D.
Allan M. Lerner, B.A., J.D.
Roshawn Banks, B.S., J.D.
Robert Levine, B.S., J.D.
Courtney Jared Bannan, B.S., J.D.
James Lewis, B.A., J.D.
Rob Beharriell, B.A., J.D.
Rochelle Marcus, B.S., M.ED., J.D.
Mark Bromley, B.S., J.D.
Lisa A. McNeils, B.A., J.D.
Dale A. Bruschi, B.S., J.D.
Robert Campbell, B.A., J.D., M.P.H., Chance Meyer, B.S., J.D.
Catherine M. Michael, B.A., J.D.
Ph.D.
Lydia Cannizzo, B.H.S., J.D.
Elena R. Minicucci, B.A., J.D.
Jayme Cassidy, B.S., J.D.
Alberto Moris, B.A., J.D.
George Cavros, B.A., J.D.
Gerald Morris, B.A., J.D.
Meg Chandelle, B.S., M.B.A., J.D.
Charles Morton, B.A., J.D.
Michele Chang, B.A., J.D., M.H.A.
Hon. Spence J. Multack, B.A., J.D.
Tracey L. Cohen, B.A., J.D.
John Napolitano, B.A., J.D.
Steven M. Collard, B.A., M.Ed.
Robert N. Nicholson, B.A., J.D.
Jude Cooper, Esq.
William Nortman, B.A., J.D.
Michael Constantino, B.A., J.D.
Laura Pincus, B.A., M.A., J.D.
Arthur Ted Daus, B.A., J.D.
v
Morton A. Diamond, B.A., M.D.
Robert F. Diaz, A.A., B.A., J.D.
Ken S. Direktor, B.A., J.D.
Susan Dubow, B.S.
Cynthia Henry Duval, B.A., J.D.
Rebecca Feinberg, B.A., J.D.
Luis Font, J.D.
Rex J. Ford, B.S., J.D.
John A. Frusciante, B.A., M.S., J.D
Myrna Galligano-Kozlowski, B.A.,
J.D.
Andrew Garofalo, B.S., J.D.
Jason Glusman, B.A., J.D.
Stuart Gold, B.A., J.D.
Adam S. Goldberg, B.S., J.D., LL.M.
Anthony Gonzalez, B.A., J.D.
Carlos F. Gonzalez
Shanika Graves, B.A., J.D.
Arthur Green, B.A., J.D.
Robert C. Grosz, B.A., M.S., Ed.D.
Robert C. Grosz, B.A., M.S., Ed.D.
Jami Gursky, B.A., J.D.
Tonja Haddad-Coleman, B.A., J.D.
Ross Hartog, B.S., J.D.
Robert Hartsell, B.A., J.D.
Ann Hesford, B.A., J.D.
Peter Homer, B.A., J.D., M.B.A.
Alfred Horowitz, B.A., J.D., LL.M.
Julie Hough, B.A., J.D.
Jacqueline Howe, B.A., J.D.
Cynthia Imperato, B.S., M.S., J.D.
William Isenberg, B.A., J.D.
Yasmin Jacob, B.A., J.D.
Nick Jovanovich
Kimberly Kanoff, B.S., J.D.
Neil Karadbil
Christopher Pole, B.S., J.D.
Ari Abraham Porth, B.A., J.D.
Vanessa Prieto, B.A., J.D.
Patricia Murphy Propheter, B.S.,
M.Ed., J.D.
Rachael Ricci, B.A., J.D.
Rebecca Rich, A.B., J.D., M.S.
H. John Rizvi, B.S., J.D.
Michael Rocque, B.A., J.D.
Jose A. Rodriguez-Dod, B.S., J.D.
Morgan Rood, B.S., J.D.
Alison Rozenberg
Raul Ruiz
Thomas E. Runyan, Esq., B.S., J.D.
Philip G. Schlissel, B.A., J.D.
Maria Schneider, B.A., J.D.
Robert Schwartz, B.A., J.D.
Stacy Schwartz, B.S., J.D.
Matthew Seamon, Pharm.D., J.D.
Neal Shniderman, B.A., J.D.
Jodi Siegel, B.A., J.D.
Mitchell Silverman, B.A., J.D., M.S.
Scott Smiley, B.S., J.D.
Mindy Solomon, B.S., J.D.
Richard Stone, B.A., J.D.
Maxine K. Streeter, B.A., J.D.
Meah Tell, Esq., B.A., M.B.A., J.D.,
LL.M.
Debbie Thaler, B.A., J.D.
Ellen S. Tilles, B.A., M.S.W., Ed.S.,
J.D.
Damian Thomas, B.B.A., J.D.
Emilie Tracy, B.A., J.D.
Dawn Traverso, B.A., J.D.
Rhonda Wallach, B.S., J.D.
Lee Weintraub, B.S., J.D.
Tania Williams, B.A., J.D., LL.M.
Camille Worsnop, B.S., J.D., LL.M
LIBRARY STAFF
Eric Young, B.A., M.L.S., J.D. Assistant Dean, Law Library & Technology
Center and Associate Professor of Law
Frank Novak, B.A., J.D., Director, Network Services
Stephan Sobchak, B.S., Technology Development Manager
vi
Jason Rosenberg, B.A., M.B.A., M.I.S, Information Systems Adm.
Carol Yecies, B.A., J.D., Associate Director, Reference Services
Becka Rich, B.A., J.D., M.S. Senior Associate Director, Law Library and
Technology Center and Adjunct Professor of Law
Mary Paige Smith, B.A., M.L.S., Associate Law Library Director,
Technical Services
Angie Stramiello, B.A., M.L.S., Reference Librarian
Alison Rosenberg, B.A., J.D., Reference/Electronic Services Librarian
Stephanie Hess, B.A., M.L.I.S., Assistant Head of Technical Services,
Acquisitions & Serials
vii
EDITOR’S NOTE
The International Law Weekend (ILW) conference, hosted annually by
the American Branch of the International Law Association and the
International Law Students Association (ILSA) at Fordham University
School of Law in New York City, is the highlight of being a part of the
ILSA Journal of International & Comparative Law. This year’s ILW
theme, “Internationalization of Law and Legal Practice,” explored the
mechanisms of change in international law. More specifically, the
attending panelists focused their discussions on global topics undergoing
rapid change, including: Tariffs and trade, human rights, immigration,
labor, public health, sustainable development, and the environment.
The Journal is in the unique position each year to not only send
members to attend ILW, but also to solicit and publish articles from the
distinguished legal scholars who comprise each panel. This Issue, also
known as the International Practitioner’s Notebook, is the final result of
those efforts. We owe many thanks to all the organizers and participants of
ILW—especially to Vivian Shen of ILSA and our published authors for
their contributions. To sum it all up, the experience was nothing short of
remarkable.
In addition, I would also like to thank the ladies of the Journal who
accompanied me to New York and assisted with my illogical fear of flying:
Nicole Bagdadi, Laura Garcia, Tal Harari, Luz Nieto, and Leilani Sorogon.
ILW was bookended by their hard work and dedication, which undoubtedly
made Volume 20.2 possible. To the rest of the Editorial Board and the
Junior Staff, thank you for putting in another semester of long hours for the
Journal. And of course, to our Faculty Advisors, Professors Douglas
Donoho and Roma Perez, thank you as always for your continued support
to all of us Journal members who come and go.
Finally, I would like to dedicate this Issue to Jennifer Valiyi, our
Managing Editor. As someone who worked full-time, attended law school,
and was raising a family—in addition to her Journal work—Jennifer never
had an opportunity to attend ILW. Despite this sacrifice, she remained
committed to the Journal and has been a vital part of its success for the past
three years. Thank you for everything.
Kevin M. Koushel
Editor-in-Chief, 2013-2014
ix
ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW
NOVA SOUTHEASTERN UNIVERSITY
SHEPARD BROAD LAW CENTER
Volume 20
Spring 2014
Number 2
TABLE OF CONTENTS
International Law Weekend
2013 Keynote Address: The Advocate in
the Transnational Justice System ........................ Donald F. Donovan
247
Over There: Teaching International and
Comparative Law at West Point........................... Robert J. Goldstein
261
Recent Developments in European Union
Crisis Management Operations ..................................... Gilles Marhic
277
Conflict Minerals and International Business:
United States and International Responses ...................Ved P. Nanda
285
Accelerated Formation of Customary
International Law ................................................... Michael P. Scharf
305
Humanitarian Intervention Post-Syria:
A Grotian Moment? ...................................................... Milena Sterio
343
Settlement of Maritime Delimitation Disputes
Within Complex Geographical Settings ......................Teoman Uykur
357
xi
THE AMERICAN BRANCH
of the
INTERNATIONAL LAW ASSOCIATION
and the INTERNATIONAL LAW STUDENTS
ASSOCIATION
Presents
International Law Weekend 2013
"Internationalization of Law & Legal Practice"
October 24–26
Thursday events held at the
House of the Association of the Bar of the City of New York
42 West 44th Street, New York City
Friday and Saturday panels held at
Fordham University School of Law
140 West 62nd Street, New York City
xiii
THE AMERICAN BRANCH
of the
INTERNATIONAL LAW ASSOCIATION
Gratefully Acknowledges the Generous Support of the Following
Organizational Leaders and Sponsors
__________
American Bar Association Section of International Law
American Society of International Law
American University, Washington College of Law
Amherst College
Arizona State University, Sandra Day O’Connor College
Backer & McKenzie LLP
Benjamin N. Cardozo School of Law
Brill/Martinus Nijhoff Publishers
California Western School of Law
Cambridge University Press
Case Western Reserve University School of Law
Chadbourne & Parke LLP
Columbia Law School
Cornell Law School
Debevoise and Plimpton LLP
Federalist Society
Fox Rothschild LLP
Freshfields Bruckhaus Deringer LLP
Georgetown University Law Center
George Washington University Law School
Hofstra University, Maurice A. Deane School of Law
Hughes Hubbard & Reed LLP
Human Rights First
Johns Hopkins University, School of Advanced International Studies
King and Spalding LLP
Marks & Sokolov LLC
New York State Bar Association, International Section
Norton Rose Fulbright LLP
Oxford University Press
Pace Law School
Princeton University, Program in Law & Public Affairs
Princeton University, James Madison Program in American Ideals and
Institutions
Rutgers School of Law–Camden
St. John’s University School of Law
University of Connecticut School of Law
xiv
University of Maine School of Law
University of Nebraska College of Law
University of Virginia School of Law
Washington University School of Law
Whittier Law School
2013 ILW ORGANIZING COMMITTEE
Jack Beard, University of Nebraska College of Law
Aaron Fellmeth, Arizona State University Sandra Day O’Connor College of
Law
Steven A. Hammond, Hughes Hubbard & Reed LLP
Blanca Montejo, United Nationals office of Legal Affairs
Vivian Shen, International Law Student Association
David Stewart, American Branch of the International Law Association
Nancy Thevenin, Backer & McKenzie LLP
Ruth Wedgwood, American Branch of the International Law Association
xv
PATRONS OF THE AMERICAN BRANCH OF THE
INTERNATIONAL LAW ASSOCIATION
Charles N. Brower
David D. Caron
Edward Gordon
Cynthia Lichtenstein
Houston Putnam Lowry
John F. Murphy
James A.R. Nafziger
Ved Nanda
John E. Noyes
Charles D. Siegal (deceased)
Paul B. Stephan
Ruth Wedgwood
THE AMERICAN BRANCH
of the
INTERNATIONAL LAW ASSOCIATION
(FOUNDED 1873)
Chair, Executive Committee
John E. Noyes
President
Ruth Wedgwood
Vice Presidents
Valerie Epps
Gary N. Horlick
Philip M. Moreman
Leila N. Sadat
David P. Stewart
xvi
Honorary Vice Presidents
Charles N. Brower
Edward Gordon
P. Nicholas Kourides
Luke T. Lee
Cynthia Lichtenstein
John F. Murphy
James A.R. Nafziger
Ved P. Nanda
Cecil J. Olmstead
Alfred P. Rubin
Robert B. von Mehren
Honorary Secretary
Houston Putnam Lowry
Honorary Treasurer
(vacant)
Executive Committee
William Aceves
Catherine Amirfar
Kelly Dawn Askin
Andrea K. Bjorklund
Ronald A. Brand
John Carey
Christina M. Cerna
Paul R. Dubinsky
Valerie Epps
Malvina Halberstam
Gary N. Horlick
Scott Horton
Karen A. Hudes
Larry Johnson
Anne Milano
Philip M. Moremen
John E. Noyes
Houston Putnam Lowry
Aníbal Sabater
Leila N. Sadat
Michael P. Scharf
David P. Stewart
Louise E. Teitz
Nancy Thevenin
Susan Tiefenbrun
Vincent Vitkowsky
George K. Walker
Ruth Wedgwood
Peter K. Yu
xvii
ILW PANELS
THURSDAY, OCTOBER 24, 2013
6:30pm
The Arms Trade Treaty, Destabilizing the Flow of Arms to
Conflict Region
Earlier this year, the United Nationals General Assembly
approved the text of an Arms Trade Treaty (ATT)—to
regulate the international transfer of conventional arms.
The treaty would cover handguns, rifles and automatic
weapons, as well as battle tanks, combat aircraft and
warships. The ambition is to prevent weapons transfers
that could lead to international crimes or human rights
violations, and could end up in the black market of war
lords, pirates and criminal gangs. Though more than 80
countries states have signed the treaty, the ATT has
proven controversial.
This opening panel for the
International Law Weekend will feature a robust debate on
the treaty from both the international and national
perspectives.
xviii
FRIDAY, OCTOBER 25, 2013
9:00am
American Legal Imperialism: The Explosion in
Extraterritorial Application of U.S. Law
Criticism of U.S. “legal imperialism,” the imposition
of Lex Americana beyond our borders, continues to
grow. The U.S. Supreme Court has recently cut back
on this trend in Morrison and Kiobel. This panel
focuses on two of the most controversial areas of
extraterritoriality—the Foreign Corrupt Practices Act
(FCPA) and the Racketeer Influenced and Corrupt
Organizations (RICO) Act. The FCPA now reaches
foreign defendants with no jurisdictional nexus to the
U.S. other than an email or wire transfer incidentally
routed through the U.S. Nine of the ten largest
penalties ever extracted from FCPA defendants are
from foreign defendants, some with no direct
connection to the U.S. These cases involved no
judicial oversight and some assert these penalties
have been extorted by the Justice Department.
Significant, new, and as yet unexplored, postMorrison developments in the application of RICO
will also be considered by our expert panelists.
Moderator: Bruce W. Bean, Lecturer in Global
Corporate Law, Michigan State University College of
Law; Chairman, ABILA Extraterritorial Jurisdiction
Committee.
Panelists: Andrew Spalding, Assistant Professor of
Law, University of Richmond School of Law;
Thomas Firestone, Of Counsel, Baker & McKenzie;
former Resident Legal Advisor, U.S. Embassy in
Moscow; Bruce S. Marks, Managing Member, Marks
& Sokolow, LLC; and Mike Koehler, Assistant
Professor of Law, Southern Illinois School of Law;
Creator, FCPA Professor blog.
9:00am
Big Data: The End of Privacy or a New Beginning?
Over the past few years, the volume of data collected
and processed by business and government
organizations has increased exponentially. This
trend, called “Big Data,” is driven by reduced costs of
storing information and moving it around in
conjunction with increased capacity to instantly
analyze massive troves of unstructured data by using
modern analytics methods and large-scale statistical
xix
simulations. The extraordinary benefits of Big Data
are tempered by concerns over privacy and data
protection. Privacy advocates are concerned that the
advances of the data economy will upend the power
relationships between government, business and
individuals, and lead to profiling, discrimination and
other restricted freedoms. This panel will explore the
benefits and costs of Big Data and proposals for
regulatory reform.
Moderator: Omer Tene, Vice President of Research,
International Association of Privacy
Panelists: Britton Guerrina, Deputy Global General
Counsel,
PricewaterhouseCoopers
International
Limited; JoAnne Stonier, Chief Privacy Officer,
MasterCard;
and
Boris
Segalis,
Partner,
InfoLawGroup LLP
9:00am
Private International Law: Year in Review
This panel will provide multiple perspectives on
important developments of private international law
in the past year, including those that arise close in
time to International Law Weekend. Presentations
will include coverage of recent judicial and other
decisions, recent actions on treaties, recent work of
intergovernmental
organizations,
and
recent
legislation of the European Union. Ample time will
be reserved for discussion so that the implications of
the new developments may be fully considered by the
panel and the audience. The panel will include an
academic,
an
international
practitioner,
a
representative of the European Union, a
representative of the Hague Conference on Private
International Law, and a representative of the U.S.
Department of State.
Moderator: Ronald A. Brand, Professor of Law and
Director, Center for International Legal Education,
University of Pittsburgh School of Law.
Panelists: Louise Ellen Teitz, First Secretary, Hague
Conference on Private International Law; Charles T.
Kotuby Jr., Associate, Jones Day; and Karen
Vandekerckhove, Team Leader for Civil and
Commercial Matters, DG Justice, European
Commission.
xx
9:00am
Accounting for Children Affected by Armed Conflicts
Despite the international community’s increasing
focus on assigning individual responsibility for
violations of international law in armed conflict
settings, insufficient attention is paid to the children
affected by such conflicts. This panel brings together
distinguished experts for a moderated dialogue that
will assess both current and alternative approaches to
securing the rights and well-being of children affected
by armed conflict. The dialogue will incorporate
relevant perspectives from international human rights
law, international criminal law, and international
humanitarian law.
Moderator: Jonathan Todres, Associate Professor of
Law, Georgia State University College of Law.
Panelists: Diane Marie Amann, Emily & Ernest
Woodruff Chair in International Law, University of
Georgia School of Law; Special Adviser on Children
in and affected by Armed Conflict, International
Criminal Court Office of the Prosecutor; Mark A.
Drumbl, Class of 1975 Alumni Professor & Director,
Transnational Law Institute, Washington and Lee
University School of Law; and Leila Zerrougui,
Special Representative of the Secretary-General for
Children and Armed Conflict, United Nations.
9:00am
Complexities of Regulating the Outer Space Domain
by Analogy to Legal Regimes in the Other Four
Domains
Activities in the outer space domain are rapidly
increasing, both in terms of numbers of countries
involved in such activities and the increase in
commercial activity beyond satellite-related activities.
Human access to the space domain is relatively new,
and the space domain may be able to benefit in
developing its legal regime by looking to analogies
from other long-standing legal regimes for land, air,
and maritime. Significant linkages between the even
more recent fifth domain of cyber and outer space may
also create opportunity of regulation through analogy.
However, each domain is unique in its characteristics
and the types of activities undertaken, and thus some
analogies may not be particularly well-suited or require
significant adaptation.
Chair:
Matthew Schaefer, Professor of Law and
xxi
Director-Space, Cyber, & Telecom Law LL.M.,
University of Nebraska Law College.
Panelists: Henry Hertzfeld, Research Professor,
Elliott School of International Affairs; Space Policy
Institute and Adjunct Professor of Law, The George
Washington University; Marc Holzapfel, VicePresident and Senior Legal Counsel, Virgin Galactic;
Laura Montgomery, Senior Attorney, Office of
General Counsel, Federal Aviation Administration;
Tim Nelson, Partner, Skadden, Arps, Slate, Meagher
& Flom LLP; and Frans von der Dunk, Professor of
Law, University of Nebraska Law College.
10:45am
Combatting
Human
Trafficking
Through
International Law
This panel will explore the influence of international
law on the various mechanisms established in the
United States to combat human trafficking. President
Obama has called human trafficking a debasement of
our common humanity that tears at the social fabric of
our communities, distorts markets, endangers public
health, and fuels violence and organized crime. He
has made combating human trafficking a top priority.
It is in this context that the panel will discuss the
enactment of the Trafficking Victims Protection Act,
the annual Trafficking in Persons Report, the
enactment of state legislation that has led to the
creation of task forces and laws and voluntary actions
that address corporate social responsibility and the
supply chains that contribute to human trafficking.
Moderator: Anna Williams Shavers, Cline Williams
Professor of Citizenship Law, University of Nebraska
College of Law (Co-Chair)
Panelists: E. Christopher Johnson, Director, Graduate
Program in Corporate Law and Finance The Thomas
M. Cooley Law School (Co-Chair); Jane Nady
Sigmon, Senior Advisor to the Director, Office to
Monitor and Combat Trafficking in Persons, U.S.
Department of State; Louise Shelley, Director,
Terrorism, Transnational Crime and Corruption
Center (TraCCC),University Professor, School of
Public Policy, George Mason University; T. Markus
Funk, Partner, Perkins Coie; Christina Bain, Director
of the Program on Human Trafficking and Modern
Slavery at the Harvard Kennedy School’s Carr Center
for Human Rights Policy
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10:45am
In-House Counsel Roundtable
A diverse group of corporate counsel from a wide
range of industries will share perspectives on
practicing in-house. Panelists will describe their
experience in transitioning from external to internal
counsel postings and offer candid insights into the
myths and realities of both environments. Audience
members will be encouraged to participate actively in
the discussion as topics range from the emerging
challenges confronting in-house lawyers in a
globalized world to the practical considerations of the
who, what and why of practicing in-house.
Moderator:
Steven A. Hammond, Co-Chair,
International Practice, Hughes Hubbard & Reed LLP
Panelists: Barbara Furey, Vice President, Complex
Litigation and Records & Information Management,
Unum; Britton Guerrina, Deputy Global General
Counsel,
PricewaterhouseCoopers
International
Limited; Tracy Elise Poole, Assistant General
Counsel, Johnson & Johnson; Sergey Shpaner,
Manager, Aircraft Securitization at Bombardier
Aerospace; JoAnne Stonier, Chief Privacy Officer,
MasterCard
10:45am
Teaching International Law Outside Law Schools
As international law grows ever richer and the current
era
of
globalization
deepens
trans-border
interdependence, the impact of international law is
felt across professions and disciplines, reaching into
many different kinds of institutions of higher
education. Yet analysis and discussion of the
pedagogy and substantive content of international law
has been focused primarily on law schools. This
panel will address substantive and pedagogical
aspects of the teaching of international law in a
broader array of institutions, including professional
and military schools as well as undergraduate
colleges.
Panel Chair and Moderator: Karen Bravo, Professor
of Law and Associate Dean for International Affairs,
Indiana University Robert H. McKinney School of
Law
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Panelists: Mark R. Shulman, Associate Dean for
Global Admissions, New York University; Robert
Goldstein, Professor of Law and Director for the
Center for the Rule of Law, U.S. Military Academy at
West Point; Julia Grignon, Professor at Laval
University and President of the Steering Committee
of the Jean-Pictet Competition in International
Humanitarian Law Maria St. Catherine De Grace
(Sharpe) McConnell, Founder, President and Director
of the Catholic & United Nations World Heritage
Institutes for the Study of Vatican/Holy See Pontifical
Ecclesiastical Diplomatic Affairs & International
Human Rights
10:45am
Updates & Crisis in European Union Law
The European Union has had a challenging year in
2012. Its Member States and Institutions have faced
successive crises in the Euro-Zone as well as
governmental instability in some Member States.
Strict environmental requirements and the economic
crises are some examples of these challenges.
Initiatives that enhance gender equality in Corporate
Boards have also advanced. Events throughout the
European Union affect many aspects of the practice
of law in the United States. The panel will discuss
current EU issues, including the challenge of finding
acceptable solutions to successive EU-Crises, the role
of the European Council and its president, Herman
Von Rompuy, recent developments in environmental
protection law, efforts to achieve common
international relations views and efforts to enhance
equality.
Moderator: Elizabeth F. Defeis, Professor of Law,
Seton Hall University School of Law
Panelists: Roger Goebel, Alpin J. Cameron Professor
of Law, Fordham University School of Law; Hugo
Kaufman, Professor, The Graduate Center, City
University of New York; Gilles Marhic, Minister
Counsellor, Head of Section, Legal and Institutional
Affairs, Counter-terrorism and Sanctions, Delegation
of the European Union to the United Nations
Headquarters; Darren Rosenblum, Professor of Law,
Pace Law School
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10:45am
Rethinking the Rules for Conflict and Competition in
Cyberspace
Unfriendly, state-sponsored actions in cyberspace
take many forms and implicate a variety of different
international and domestic legal frameworks. Many
may be subject to the domestic criminal jurisdiction
of states (and indistinguishable from various criminal
acts), while others may or may not be subject to the
Law of Armed Conflict. The exploitation of valuable
data by states presents particular challenges for legal
classification. This panel will examine evolving
cyber threats to governments and businesses and
reevaluate the rules that may govern them.
Panelists: Jack M. Beard, Assistant Professor of Law,
University of Nebraska College of Law; Duncan B.
Hollis, Associate Dean for Academic Affairs and
James E. Beasley Professor of Law, Temple
University School of Law; Eric T. Jensen, Associate
Professor of Law, Brigham Young University School
of Law; Sean Watts, Professor of Law, Creighton
University School of Law
1:130pm
Keynote Address: The Advocate in the Transnational
Justice System
Donald Donovan¸ Partner, Debevoise & Plimpton LLP.
Donald Francis Donovan is co-head of the
international disputes practice at Debevoise &
Plimpton LLP. He serves as counsel in international
disputes before courts in the United States,
international arbitration tribunals, and international
courts. Mr. Donovan currently serves as President of
the American Society of International Law. He also
serves as a Member of the U.S. Secretary of State’s
Advisory Committee on International Law; a Member
of the Advisory Committees for the Restatement of
U.S. Foreign Relations Law and for the Restatement
of the U.S. Law of International Commercial
Arbitration of the American Law Institute. He served
from 2000-2005 as Chair of the Institute for
Transnational Arbitration. He has long served as a
Member of the Board of Human Rights First and
Chair of its Litigation Committee. He teaches
International Arbitration and International Investment
Law and Arbitration at the New York University
School of Law.
Mr. Donovan has argued
international law, arbitration law, commercial law,
and other issues before the U.S. Supreme Court, the
International Court of Justice, the Arbitral Tribunal
xxv
Established by the 1930 Hague Agreement, and the
International Criminal Tribunal for the Former
Yugoslavia; and arbitration tribunals sitting around
the world, constituted under the auspices of the
world’s leading arbitration institutions, in a wide
range of economic sectors, in disputes arising under
both contracts and treaties.
3:00pm
Pathways to Employment in International Law
A unique forum that brings law students and new
lawyers together with experienced practitioners to
discuss possible careers in international law. Learn
about international internship opportunities, how to
network with legal experts from around the world,
practice in other legal systems and cultures, become
active in international organizations and societies, and
develop legal and interpersonal skills. Sponsored by
the ABA Section of International Law and ILSA.
Moderator: Lesley Benn, Executive Director, ILSA
3:00pm
International Discovery and Privacy Conflicts
The United States employs the world's most liberal
system of discovery in litigation. Relevant material
in the possession, custody or control of parties (and
third parties) subject to the jurisdiction of a U.S.
court, must be produced, absent a showing of undue
burden.
In many other countries (especially
European Union nations) discovery is much more
limited, and privacy concerns generally preclude
broad disclosure of personal information regarding
employees, consumers and business associates. This
panel will address the conflict that can arise, when a
foreign entity becomes involved in U.S. proceedings,
and must produce information subject to privacy
restrictions.
Panelists: Monique Altheim, Attorney at Law, The
Law Office of Monique Altheim; Steven Bennett,
Partner, Jones Day, New York; Adjunct Professor,
New York Law School; Special Professor of Law,
Maurice A. Deane School of Law at Hofstra
University; Wayne Matus, Managing Director, Legal
and Compliance at UBS AG; Kenneth Rashbaum,
Principal, Rashbaum Associates, LLC
3:00pm
ICTR Referral of International Criminal Cases to
National Jurisdictions: Lessons Learned and Best
xxvi
Practices for Closing the Impunity Gap
Over the past 20 years, the International Criminal
Tribunal for Rwanda (ICTR) has prosecuted those
responsible for the Rwandan Genocide. The scale of
the atrocities required national authorities to assume a
larger role in prosecuting these crimes. Before this
could happen, the ICTR had to ensure that national
authorities would prosecute cases in a manner
consistent with international fair trial standards. The
panel will share lessons learned in the ICTR’s
successful referral of international criminal cases to
national jurisdictions.
Panelists: Hon. Hassan Bubacar Jallow, Prosecutor
of the International Criminal Tribunal for Rwanda
and Mechanism for International Criminal Tribunals,
Undersecretary General of the United Nations; Hon.
Howard Morrison, Judge, International Criminal
Court; James J. Arguin, Chief, Appeals and Legal
Advisory Division, ICTR Office of the Prosecutor;
Vice Chair and Steering Group member, International
Criminal Law Committee of the ABA Section of
International Law
3:00pm
Who Owns the North Pole? The Rush for Extending
Maritime Boundaries in the Arctic
With the continuing melting of the polar ice the area
sometimes referred to as the ‘High North’ has
become the object of multinational desire. This panel
seeks to discuss the respective riparian Arctic states’
claims to extending their maritime boundaries,
determining which may have the strongest legal hold
on the North Pole and its vicinity. While the
provisions of UN Convention on the Law of the Sea
(UNCLOS) serve as a natural point of departure, the
speakers also aim at looking beyond UNCLOS and
generally scrutinizing how far limitations to maritime
territorial claims may be justified.
Moderator: Joseph Sweeney, John D. Calamari
Distinguished Professor of Law Emeritus, Fordham
University School of Law
Panelists: Elizabeth Burleson, Associate Professor of Law,
Pace Law School; Vladimir Gladyshev, Consultant,
Amsterdam & Peroff LLP; Member of the Russian Bar;
Suzanne Lalonde, Associate Professor of Law, University of
Montreal; Tom Syring, Legal Adviser, UNE/Norwegian
xxvii
Immigration Appeals Board
3:00pm
Debating the Concept of “Grotian Moments”:
Accelerated Formation of Customary International
Law During Times of Fundamental Change
Michael Scharf’s “Recognizing Grotian Moments”
(Cambridge University Press 2013) posits that radical
changes in technology, means of warfare, methods of
terrorism, etc., can act as an accelerant, leading to
virtually instant formation of customary international
law. This panel will discuss and critique the Grotian
Moment concept, and its application to various case
studies including humanitarian intervention and
targeted killing of terrorists. Free copies of Scharf's
book will be provided to the first 100 audience
members.
Moderator: Paul R. Williams, Rebecca Grazier
Professor of Law, American University, and
President of PILPG
Panelists: Michael P. Scharf, John Deaver DrinkoBaker & Hostetler Professor of Law and Associate
Dean, Case Western Reserve University; Jose E.
Alvarez, Herbert and Rose Rubin Professor of
International Law, New York University School of
Law; Co Editor-in-Chief, American Journal of
International Law; Milena Sterio, Associate
Professor, Cleveland-Marshall College of Law
4:45pm
Standards of Review in Investment Arbitration:
Reviewing State Regulatory Conduct Under
International Law
It is now common for international tribunals to
review the legality of the domestic regulatory actions
of governments. International human rights tribunals
assess whether state actions have violated human
rights.
WTO tribunals assess whether state
regulations have breached international trade
obligations. And international investment arbitration
often reviews the actions of states in relation to their
impact on foreign investors. This panel will consider
the applicable standard of review that an international
investment tribunal will apply to assessing the
legality of a state’s conduct when regulating in the
public interest. While focusing on international
investment law, the panelists will also consider the
standards of review adopted by other international
xxviii
tribunals in similar contexts.
Moderator: Rahim Moloo, Associate, Freshfields
Bruckhaus Deringer US LLP
Panelists: William Burke-White, Deputy Dean and
Professor of Law, University of Pennsylvania Law
School; Visiting Professor, Harvard Law School;
Jeremy Sharpe, Chief of Investment Arbitration,
Office of the Legal Adviser, U.S. Department of
State; Stephan Schill, Senior Research Fellow, Max
Planck Institute for Comparative Public Law and
International Law; Andrea Menaker, Partner, White
& Case LLP
4:45pm
Reform of the Inter-American Human Rights System
Some Organization of American States (OAS)
member states complained about the unfairness of
three levels of obligations undertaken by member
states: 1) States parties to the American Convention
that accepted the compulsory jurisdiction of the
Court; 2) States parties to the American Convention
that have not accepted the Court’s jurisdiction; and 3)
States that have accepted neither the Convention nor
the Court. Since the U.S. is in the third group there
was talk about moving the system to Latin America
and not electing Americans. What happened?
Panelists:
Stephen Vasciannie, Ambassador of
Jamaica to the Organization of American States; O.
Hilaire Sobers, Rapporteurship on the Rights of
People of African Descent and Against Racial
Discrimination, Inter-American Commission on
Human Rights; Maria del Lujan Flores, Former
Ambassador to the OAS; Permanent Representative
of Uruguay before the OAS
4:45pm
Oceans Law and the Practitioner
The oceans cover over two-thirds of the Earth's
surface. The law governing this huge area is vast and
varied. Three speakers will visit selected topics from
this immense body of international law to
demonstrate why attorneys representing private
clients or governments must be acquainted with
international law. These topics will be explored in
depth:
Marine Boundary Claims:
What the
Practitioner Should Know; The Relevance of
xxix
International Law and the Law of the Sea As It
Relates to Homeland Security; and International Law
and the Admiralty Practitioner.
Moderator:
James Kraska, Mary Derrickson
McCurdy Visiting Research Scholar, Duke University
Marine Laboratory, Nicholas School of the
Environment; Senior Fellow, Center for Oceans Law
and Policy, University of Virginia School of Law
Panelists: Glenn Sulmasy, Chairman, Humanities
Department and Professor of Law, U.S. Coast Guard
Academy; Homeland and National Security Law
Fellow, Center for National Policy, Washington;
Charles Norchi, Professor of Law, Director of the
Center for Oceans and Coastal Law and Director of
the LL.M. Program, University of Maine School of
Law; George Walker, Dean's Research Professor of
Admiralty and International Law, Wake Forest
University School of Law
4:45pm
The Changing Face of International Family Law: A
Roundtable on the Global Future of Same-Sex
Marriage
At least 14 countries, five states, the District of
Columbia, and five Native American Tribes now
recognize
same-sex
marriage.
Additional
jurisdictions provide lesser forms of protection
through civil unions and domestic partnerships. We
will review which jurisdictions protect same-sex
couples and what legal documents are essential for
same-sex couples when traveling outside their home
jurisdictions. We will also review how changes in
U.S. federal law now allow immigration rights for
same-sex partners. Finally, we will consider whether
changes are needed to international family law
treaties to cover same-sex couples.
Panelists: Melynda Barnhart, Associate Professor of
Law, New York Law School; Gregory Johnson,
Professor of Law, Vermont Law School; Mark E.
Wojcik, Professor, The John Marshall Law School
* Panel sponsored by the Teaching International Law
Committee of the American Branch of the
International Law Association
xxx
6:30pm
Reception at the Permanent Mission of the European
Union to the United Nations
SATURDAY, OCTOBER 26, 2013
9:00am
Forging a Convention for Crimes Against Humanity
This panel will consider the need for an International
Convention for the Prevention and Punishment of
Crimes Against Humanity, and the possibility of its
elaboration by the International Law Commission. It
will consider the risks and benefits of a new Crimes
Against Humanity convention, examine how such a
treaty could assist with atrocity crime prevention, and
explore how the proposed instrument could
complement the work of the International Criminal
Court as well as international human rights bodies.
Moderator: Larry D. Johnson, Adjunct Professor of
Law, Columbia Law School; former AssistantSecretary-General for Legal Affairs, United Nations
Headquarters; Executive Committee, ABILA
Panelists:
M. Cherif Bassiouni, Emeritus
Distinguished Research Professor of Law, DePaul
University College of Law; Arturo J. Carrillo,
Professor of Law and Director of the International
Human Rights Clinic, The George Washington
University Law School; Sean D. Murphy, Patricia
Roberts Harris Research Professor of Law, The George
Washington University Law School; Leila Nadya
Sadat, Henry H. Oberschelp Professor of Law and
Director of the Whitney; R. Harris World Law
Institute, Washington University School of Law;
Special Adviser on Crimes Against Humanity to the
ICC Prosecutor; Beth Van Schaack, Deputy to the
Ambassador-at-Large for War Crimes Issues, Office of
Global Criminal Justice of the U.S. Department of
State
9:00am
Influence of National Law on Multilateral
Development Bank Sanctions Systems
This session will examine the ways in which
multilateral development banks (MDBs) draw on
various national legal systems to inform both
xxxi
procedural and substantive norms within their
sanctions systems, in the process creating what is
arguably a new area of international administrative
law. The session will also consider the hybrid nature of
these systems and how, over time, the publication of
sanctions decisions may lead to a ‘cross-fertilization’
of norms and even a coherent body of ‘MDB sanctions
law’.
Moderator: Frank Fariello, Lead Counsel, Operations
Policy, World Bank Legal Vice Presidency
Discussants: Susan Rose Ackerman, Henry R. Luce
Professor of Jurisprudence, Yale University; Steven
Shaw, Senior Of Counsel, Covington & Burling LLP
Panelists: Pascale Dubois, Suspension and Debarment
Officer, World Bank; Elizabeth Lin Forder, Secretary,
World Bank Group Sanctions Board; Andres Rigo,
Member, Inter-American Development Bank Sanctions
Committee and the African Development Bank
Sanctions Board
9:00am
ABILA Director of Studies Meeting with ABILA Academic Chairs
9:00am
Conflict Minerals and International Business: National
& International Responses
Reminiscent of "blood diamonds," these minerals,
mined in areas of conflict and human rights abuses, are
funding violence and armed conflict. The U.S.
Securities and Exchange Commission (SEC) is
establishing disclosure rules about their use. The
European Union is also considering a regime for
conflict minerals. In the U.S., the SEC's efforts have
created controversy, generating legal challenges from
trade groups. The panel will discuss these challenges
and explore the need for an international regime.
Chair:
Ved Nanda, John Evans Distinguished
University Professor, University of Denver Sturm
College of Law
Panelists:
Upendra Acharya, Professor of Law,
Gonzaga University Law School; David Aronofsky,
Vice President, Texas International Education
Consortium; David Akerson, Professor of Law,
University of Denver Sturm College of Law
xxxii
Commentator: James Nafziger, Thomas B. Stoel
Professor of Law and Director of International Law
Programs, Willamette University College of Law,
Honorary Vice-President, ABILA
9:00am
Web War 3.0 -The Conflicts over International Internet
Governance, Monitoring and Transparency
There is an emerging conflict over the international
governance of cyberspace. Most western nations prefer
the existing multi-stakeholder approach to governance,
but other nations want to assert greater control, perhaps
through the International Telecommunications Union.
New dimensions to this conflict emerged with the
revelations of National Security Agency monitoring
and the international responses to the Snowden affair.
These developments have implications for all users -from insurgents and hacktivists to businesses and
consumers.
Moderator: Vincent J. Vitkowsky, Member, ABILA
Executive Committee
Panelists: Karen J. Greenberg, Director, Center on National
Security, Fordham University School of Law; Jeremy A. Rabkin,
Professor, George Mason University Law School; Paul
Rosenzweig, Principal, Red Branch Law & Consulting PLLC and
former Deputy Assistant Secretary for Policy, U.S. Department of
Homeland Security
9:00am
Internationalizing Gender & Disability Law:
International Accountability for Preventing and Ending
Violence Against Women
Women with disabilities are twice as likely to
experience domestic violence as non-disabled women.
The forms of violence they experience are often
overlooked and the women themselves may lack
effective access to legal protections. This roundtable
will spark a lively and practical discussion on states’
due diligence obligations to prevent and remedy
violence against women with disabilities as well as on
the multi-layered legal and policy strategies that can
and should be implemented by international financial
institutions and civil society to address their diverse
needs.
Moderator and Discussant: Hope Lewis, Professor of
Law, Northeastern University School of Law
Panelists: Zanita E. Fenton, Professor of Law, University of Miami
School of Law; Charlotte V. McClain-Nhlapo, Coordinator,
xxxiii
Disability & Inclusive Development, Bureau for Policy, Planning,
and Learning, USAID; Stephanie Ortoleva, Founder and President,
Women Enabled; Shantha Rau Barriga, Director, Disability Rights,
Human Rights Watch; Yvette C. Sterling, Principal, Sterling Law
Firm
9:30am
ILSA Board of Directors Meeting
10:45am
Prosecuting Heads of State at the ICC: Bashir and
Kenyatta
The International Criminal Court stands poised to
go into uncharted territory: trying at least one
current head of state, and potentially, two, in The
Hague, Netherlands. Will these trials of sitting
presidents actually proceed? Is it feasible to try a
current head of state? How will Sudanese President
Bashir be apprehended, if at all? This panel will
explore these and related issues, drawing from past
experiences, including the apprehension and trial of
former Liberian President Charles Taylor.
Moderator: Jennifer Trahan, Associate Clinical
Professor of Global Affairs, New York University;
Chair, American Branch of the International Law
Association,
International
Criminal
Court
Committee
Panelists: Fatou Bensouda, Prosecutor, International Criminal
Court (invited); Stephen J. Rapp, Ambassador-at-Large, Office
of Global Criminal Justice, U.S. Department of State; David M.
Crane, Professor of Practice, Syracuse University School of
Law; Founding Chief Prosecutor, Special Court for Sierra
Leone; Richard Dicker, Director, International Justice Program,
Human Rights Watch
10:45am
Do We Need Investment Treaties?
Given the explosion of arbitrations filed under
bilateral investment treaties (BITs) in recent
decades, some question the effectiveness or
necessity of the system on a grand scale (more than
2,500 BITs are in force today). Others rebut that
without such a system, in our modern age investors
would be left subject to the whim of local courts and
authorities (often with repercussions that spread
cross-border before any real opportunity to remedy
the problem within the host State presents itself).
Important developments in investment cases in
xxxiv
recent years, including the Chevron and Yukos
matters, raise the question of whether BITs are
providing requisite protections to investors and
States, both with respect to form and scale.
Moderators:
Wade Coriell, Partner, King &
Spalding LLP; Elizabeth Silbert, Associate, King &
Spalding LLP
Panelists: Jason Doughty, Senior Vice President, General
Counsel, Kosmos Energy; Alexander Yanos, Partner,
Freshfields Bruckhaus Deringer LLP; Donald Childress,
Associate Professor of Law, Pepperdine University School of
Law; Caline Mouawad, Partner, King & Spalding LLP; Howard
Mann, Senior International Law Advisor, International Institute
for Sustainable Development
10:45am
The United Nations Framework Convention on
Climate Change: What Can We Expect at COP19
and Beyond This panel will examine some of the
key issues facing the Parties to the United Nations
Framework Convention on Climate Change
(UNFCCC) at the 19th session of the Conference of
the Parties to the UNFCCC and the 9th session of
the Conference of the Parties serving as the Meeting
of the Parties to the Kyoto Protocol. The moderator
will seek to engage the panelists in a discussion of
what can be accomplished at this year’s upcoming
meetings in Warsaw, and the implications for longterm climate policy making at the international
level.
Moderator: Kate O’Neill, Associate Professor,
Environmental Science, Policy & Management
program, University of California-Berkeley
Panelists: Wil Burns, Associate Director, Energy Policy &
Climate program, Johns Hopkins University; Andrew Strauss,
Professor of Law & Associate Dean for Faculty and Strategic
Initiatives, Widener University School of Law; Nathaniel
Keohane, Vice President, International Climate, Environmental
Defense Fund
10:45am
Revising the Restatement of Foreign Relations Law
The American Law Institute recently undertook to
update the influential 25-year-old Restatement
(Third) of The Foreign Relations Law of the United
xxxv
States. Initial topics selected for consideration
include jurisdiction, the domestic effect of treaties,
and sovereign immunity. This panel, which includes
Reporters for each of these three areas selected for
initial revision, will discuss the status and direction
of this project and provide an opportunity for
comment and suggestions.
Moderator: John M. Walker, Jr., Judge, U.S. Court
of Appeals for the 2nd Circuit
Panelists: Paul B. Stephan, Distinguished Professor of Law,
Director of Graduate Studies Program, University of Virginia
School of Law; Curtis A. Bradley, William Van Alstyne
Professor of Law and Senior Associate Dean for Faculty &
Research, Duke University School of Law; Anthea Roberts,
Professor of Law, Columbia University Law School; Senior
Lecturer in Law, London School of Economics; David P.
Stewart, Visiting Professor of Law, Georgetown University
Law Center, ABILA President-Elect
10:45am
The Globalization of Child Rights and Remedies
This panel is sponsored by ABILA’s International
Human Rights Committee.
Among the least
developed and observed of all human rights are
children’s rights. Although private actors may
significantly impair the enjoyment of any human
rights, the traditional primary threat to most adult
human rights is the state itself. Children’s rights, in
contrast, face pervasive threats from private actors
as well as the state, including parents and guardians,
who do not always fulfill, and may actively subvert,
child rights. This panel will explore the
globalization of children’s rights in a world public
order delegating formal enforcement to states, which
in turn tend to delegate primary responsibility for
protecting and enforcing child rights to largely
unregulated private actors. In particular, the panel
will explore the dynamics of national enforcement
of international child rights and the current and ideal
roles of public and private advocates.
Moderator: Aaron Fellmeth, Professor of Law,
Arizona State University; Chair, International
Human Rights Committee, ABILA
Panelists:
Susan Bitensky, Professor, Michigan State
University College of Law; Sara Dillon, Professor, Suffolk
xxxvi
University Law School; Karl Hanson, Professor, Children's
Rights Studies, Kurt Bösch University Institute; Henry Plum,
Legal Advisor & Parliamentarian for International Society for
Prevention of Child Abuse & Neglect; Shifa Alkhatib
12:30pm
Disputes and the Regime of Islands and Rocks
Under the United Nations Convention on the Law of
the Sea
This panel will discuss the regime of islands and
rocks under the UN Convention on the Law of the
Sea Article 121, pulling from current events and
disputes including the South China Sea and the
Cyprus Issue, as well as other issues faced by
island-nations. The panel will also address the socalled “persistent objector” status to the treaty and
relevant article. Panelists include diplomats, State
legal advisers, academics, and practitioners.
Panel Chair: Christina Hioureas, Senior Associate,
Chadbourne & Parke LLP; Adjunct Associate
Professor of Law, Fordham University School of
Law
Panelists: Andrew Jacovides, Former Ambassador of Cyprus to
the United States and United Nations; Head of Cyprus
Delegation to UNCLOS III (1973-1982); Maria Telalian, Legal
Adviser, Foreign Ministry of the Hellenic Republic of Greece;
Tara J Helfman, Assistant Professor of Law, Syracuse
University; Steven Hill, Deputy Legal Adviser, United States
Permanent Mission to the United Nations; Audley-Seymour
Roster, Representative, Permanent Mission Commonwealth of
Dominica to the United Nations
12:30pm
Thinking Ahead: Six Questions to Ask at the
Beginning of An International Arbitration
This panel will focus on six strategic questions that
should be asked at the beginning of any
international arbitration, including: what personal
traits to look for in an arbitrator; whether it is
necessary to seek preliminary injunctive relief from
the courts; whether it is possible to bifurcate and
seek the dismissal of claims; specific documents do
you need to prove your client’s claims/defenses;
whether you need (and can) obtain third-party
discovery; and whether will you be able to enforce
and collect an arbitration award. By honestly
answering these questions before you get too deep
into an international arbitration, you will help to
avoid unexpected pitfalls in the arbitral process,
save legal fees and increase your chances of
ultimate victory.
xxxvii
Moderator: B. Ted Howes, Partner, McDermott
Will & Emery
Panelists: Joachim Thole, Executive Vice President & General
Counsel, Dr. Willmar Schwabe Pharmaceuticals; Eric A.
Schwartz, Partner, King & Spalding LLP; former Secretary
General and current Vice-President, ICC International Court of
Arbitration; Edward T. Schorr, Partner, Hogan Lovells
12:30pm
Rights and Religion
This panel will examine the intersections between
the right to religious freedom, nondiscrimination
obligations, and other rules of human rights law in
the context of recent and ongoing debates arising in
various fora, including international and regional
human rights institutions. Panelists will discuss, in
particular, the relationships between freedom of
religion and freedom of expression, as well as nondiscrimination norms as both a component of
religious freedom and in opposition to it. These
relationships will be examined in the context of
recent
legal
developments
concerning
discrimination on grounds of sex and sexual
orientation, restrictions on the wearing of religious
attire, participation in government by religiously
affiliated political parties, and continuing attempts
to criminalize anti-religious speech.
Panelists: John Cerone, Professor of Law, New England Law
Boston; Visiting Professor of International Law, Fletcher
School of Law & Diplomacy; Nazia Hussain, Open Society
Foundation, Director, Program on Muslim Integration in
Europe; Valerie Epps, Professor of Law, Suffolk University
Law School; Eva Maria Lassen, Senior Researcher, Danish
Institute for Human Rights
12:30pm
Bringing Terrorists to Justice: Legal and Policy
Implications
When the Military Plays a Role The increased
reliance on the military in counter-terrorism
operations poses new and unique challenges for the
use of civilian courts. This panel will explore those
challenges, focusing on the use of evidence in
criminal prosecutions where the military has played
a role, while respecting human rights. It will seek to
identify solutions that involve the application of
international law principles and instruments in a
domestic context.
Panelists: Benton Campbell, Partner, Latham & Watkins LLP;
Adria De Landri, Legal Officer, UN Counter-Terrorism
xxxviii
Committee Executive Directorate, UN Security Council; Bibi
van Ginkel, Senior Research Fellow, Netherlands Institute for
International Relations ‘Clingendael’;Research
Fellow,
International Centre for Counter-Terrorism—The Hague;
Jonathan Hafetz, Associate Professor of Law, Seton Hall
University School of Law; Sharon McCarthy, Partner,
Kostelanetz & Fink, LLP; David Scharia, Senior Legal Officer
and Coordinator, Counter-Terrorism Committee Executive
Directorate, UN Security Council
12:30pm
ABILA Executive Committee Meeting
3:30pm
Careers
in
International
Human
Rights,
International Development, and International Rule
of Law—Part I
This roundtable discussion features distinguished
practitioners with experience in development, rule
of law, and international human rights in nongovernmental organizations, government, and
intergovernmental organizations. With unique and
contrasting perspectives on pursuing a career in
these growing fields, they will provide students with
invaluable advice on courses of study, summer jobs
to pursue, the importance of networking, and
unlikely paths to a career in these fields.
3:30pm
Careers in Advising Foreign Companies—Part I
This panel will focus on career opportunities in
representing not huge multinational corporations but
rather small enterprises. Assisting such clients often
requires a lawyer to be knowledgeable about a broad
array of issues because clients in this category may
be reluctant to retain multiple lawyers or to pay fees
at the high end of the scale typically demanded by
highly specialized counsel. In addition, this group of
clients typically is looking for a mixture of advice:
legal, business, cultural. Among the topics to be
discussed: skills needed to advise Asian companies
in connection with foreign direct investment in the
U.S., how to start a practice in customs law, and the
most important intellectual property issues for the
transnational, non-specialist lawyer.
Moderator: Paul R. Dubinsky, Director of Graduate
Studies, Wayne State University
Panelists: Michael T. Cone, Partner, Fisher Broyles
LLP; C. Peter Theut, President and CEO, China
Bridge; former Chair, Global Transactions Practice,
xxxix
Butzel Long
3:30 pm
3:30 PM
3:30 PM
Careers in International Art Law—Part I
It is often said that among the lawyers who
experience a high degree of job satisfaction are
those whose work allows them to wed their legal
skills with their life interests. This panel features
three individuals, each with a passion for fine arts,
who have managed to put that passion at the center
of their legal careers. Among the subjects to be
addressed: international legal aspects of the sale,
licensing, and protection of art work; transnational
litigation relating to stolen art and disputes over
title; the daily practice of in-house counsel to major
museums and galleries.
Moderator: Michael Bazyler, Professor, Chapman
University School of Law
International Norms for Corporate Action and AntiCorruption
The panel will study how international norms (hard
and soft) such as the 1997 OECD Anti-Bribery
Convention, 2003 UN Convention Against
Corruption, IFC Performance Standards, Voluntary
Principles on Human Rights and OECD Guidelines
for Multinational Enterprises are influencing the
development and operation of anti-corruption and
compliance mechanisms in Canada in regard to the
activities of Canadian corporations abroad. The
panel will discuss three mechanisms: The
Corruption of Foreign Public Officials Act, the
Office of the Extractive Sector Corporate Social
Responsibility Counsellor and the Canadian
National Contact Point under the OECD Guidelines
for Multinational Enterprises.
Panelists: Bernard Colas, Partner, Colas Moreira
Kazandjian Zikovsky LLP, ILA Canada President;
Milos Barutciski, Partner, Co-Head International
Trade, Bennett Jones LLP; Erica Bach, Senior
Advisor, Office of Government of Canada's
Extractive Sector Corporate Social Responsibility
Counsellor
Intellectual Property and the Right to Science
Article 15(1)(b) of the International Covenant on
Economic, Social and Cultural Rights requires each
state party to recognize “the right of everyone ... [t]o
enjoy the benefits of scientific progress and its
applications." Out of the three rights recognized in
Article 15 this right remains the only one that the
Committee on Economic Social and Cultural Rights
xl
has yet to authoritatively interpret through a general
comment. Sponsored by the ABILA Committee on
International Intellectual Property and building on
its ongoing effort to draft a submission to the
CESCR,
this
roundtable
brings
together
distinguished panelists to discuss the nature, scope
and meaning of this particular right to science.
Moderator:
Peter Yu, Kern Family Chair in
Intellectual Property Law, Drake University Law
School
5:15 PM
5:15 PM
5:15 PM
Panelists: Farida Shaheed, UN Special Rapporteur
in the Field of Cultural Rights
Careers
in
International
Human
Righs,
International Development, and International Rule
of Law—Part II: Informal networking
This informal networking session will provide tiem
for participants to converse with the panelists and
other attendees interested in this particular area of
law.
Careers in Advising Foreign Companies—Part II:
Informal Networking
This informal networking session will provide time
for participants to converse with the panelists and
other attendees interested in this particular area of
law.
Careers in International Art Law—Part II:
Informal Networking
This informal networking session will provide time
for participants to converse with the panelists and
other attendees interested in this particular area of
law.
xli
INTERNATIONAL LAW WEEKEND
2013 KEYNOTE ADDRESS: THE ADVOCATE IN
THE TRANSNATIONAL JUSTICE SYSTEM
Donald F. Donovan*
I am very grateful for the opportunity to address this audience at
International Law Weekend 2013. I have practiced in New York now for
more than twenty-five years, and I’ve watched this weekend grow into what
Ruth Wedgwood has just fairly described as a landmark on the international
law calendar. So thanks to Ruth,1 and to David Stewart,2 and to John
Noyes,3 and to all their ABILA4 colleagues for inviting me, and to Fordham
Law School and the Leitner Center for so generously hosting this whole
event.
It’s a special treat for the President of the American Society of
International Law to be making this address this year, because as Ruth has
mentioned, ASIL5 will be collaborating this coming spring with the
*
Donald Francis Donovan is co-head of the international disputes practice at Debevoise &
Plimpton LLP, where he concentrates his practice in international disputes before courts in the United
States, international arbitration tribunals, and international courts. Mr. Donovan served as President of
the American Society of International Law from 2012–2014 and currently serves as a Member of the
U.S. Secretary of State’s Advisory Committee on International Law; a Member of the Advisory
Committees for the Restatement of U.S. Foreign Relations Law and for the Restatement of the U.S. Law
of International Commercial Arbitration of the American Law Institute; and as Alternate Member of the
ICC Court of International Arbitration. He served from 2000–2005 as Chair of the Institute for
Transnational Arbitration. He has long served as a Member of the Board of Human Rights First and
Chair of its Litigation Committee. He teaches International Arbitration and International Investment
Law and Arbitration at the New York University School of Law. Mr. Donovan has argued international
law, arbitration law, commercial law, and other issues before the U.S. Supreme Court, the International
Court of Justice, the Arbitral Tribunal Established by the 1930 Hague Agreement, the International
Criminal Tribunal for the Former Yugoslavia, and other US and international courts, as well as
arbitration tribunals sitting around the world, constituted under the auspices of the world’s leading
arbitration institutions, in a wide range of economic sectors, in disputes arising under both contracts and
treaties.
1
Ruth Wedgewood, Edward B. Burling Professor of International Law and Diplomacy,
Johns Hopkins University School of Advanced International Studies; 2013 President of the American
Branch of the International Law Association.
2.
David P. Stewart, Director, Global Law Scholars Program; Co-Director, Center on
Transnational Business and the Law and Visiting Professor of Law, Georgetown University Law Center;
2013 President-Elect of the American Branch of the International Law Association.
3.
John E. Noyes, Roger J. Traynor Professor of Law, California Western School of Law;
2013 Chair of the American Branch of the International Law Association.
4.
American Branch of the International Law Association.
5.
American Society of International Law.
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[Vol. 20:2
American Branch of the International Law Association to host a joint
meeting, which promises to gather some 2000 international lawyers from
around the world. ASIL and the ILA6 are structurally different, but they are
very much likeminded organizations. Each of us is in the business of
developing, debating, and disseminating international law with the
objective of strengthening the rule of law on the international plane. I
should add, too, that even though we are the American Society, close to half
our membership are non-U.S. nationals, and we very much aim at our
annual meetings to provide an international forum. So we look forward to
collaborating with the ILA and its American Branch this spring, and you all
should plan to be there.
But I turn back to this meeting, and its focus on the
internationalization of law and legal practice. Just glancing at the program,
it’s clear that you have before you an intellectual treat, in the form of an
extraordinary range of projects and a truly impressive roster of speakers.
But I start this talk with a glance at the program for an additional reason, as
it confirms the conference theme by so pointedly illustrating the ferocious
expansion of subject matter governed or touched by international law. You
have programs on family law, Internet law, human trafficking not as a
matter of domestic crime but as a human rights issue, and a whole range of
other topics. The program also demonstrates how deeply international law
has penetrated domestic legal systems, to a degree that would surely
surprise the visionaries from a century or more ago who founded ASIL and
the ILA. Finally, the program makes a parallel point by showing the
expansion of conduct, by both state and private actors, that is subject to
independent examination in the form of international adjudication and
arbitration. You have panels on international discovery and U.S. litigation,
standards of review in investor-state arbitration, the referral mechanism of
the international criminal tribunals, the Inter-American human rights
system, head-of-state prosecutions at the ICC,7 and organizing arbitral
proceedings. That’s quite a range.
As I reflected on how I might address the conference theme today, I
realized that, if you’ll allow me to say so, that theme—the
internationalization of law and legal practice—closely reflected my own
career. Let me explain.
I went to law school thinking I was going to be a litigator, hopefully
starting as a prosecutor at the U.S. Attorney’s Office downtown. But I also
had a real interest in international matters. So I faced a seeming dilemma—
since litigation is jurisdiction-specific, how can I be a litigator and still do
6.
International Law Association.
7.
International Criminal Court.
2014]
Donovan
249
international work? Then, after having the great privilege of working for
Justice Blackmun, who himself had great respect for the international
system, I went to work for Judge Howard M. Holtzmann at the Iran-United
States Claims Tribunal in The Hague. There I was introduced to the
universe of international dispute resolution, though, as I will explain, it was
not nearly as expansive a universe as it is today. So I came back to New
York looking for a firm that had a discrete international dimension to its
litigation practice, and a strong commitment to pro bono work as well.
My plan was to develop an international disputes practice that
encompassed commercial work, public international law work, and human
rights work. Actually, though I’m calling it a plan and making it sound
quite specific, it would probably be more accurate to describe it as an
instinct, a strong one, but not very specific. In my defense, I should note
that this was twenty-five years ago, and there were few models for this kind
of practice around. But whether by plan or by instinct, my practice has
developed in a way that mirrors the theme you all have been discussing this
weekend. So at the behest of Ruth and David, and with your indulgence, I
will address the conference theme by combining in my remarks both
professional observations and personal reflections.
That necessarily means that I will be looking at the theme through the
lens of international adjudication and arbitration. Of course, I don’t mean
to suggest that the internationalization of law and legal practice is only
evident in that field, or that that’s the only lens through which one might
examine the phenomenon. As I emphasized at the outset, far from it. But
it’s the means by which I will find it easiest to describe the contemporary
practice of international law.
I want to do this in five steps. First, I’ll consider in turn 1) interstate
adjudication; 2) the emerging transnational justice system of international
arbitration; 3) the governance regime reflected in investor-state arbitration;
and 4) the adjudication of international cases in national courts. I’ll then
consider 5) an especially compelling example of the intersection of the
international and national planes. I recognize that this will not be a
comprehensive tour even of the universe of international adjudication and
arbitration. For example, I am not going to talk about the international
trade regime and I will refer if at all only fleetingly to the international
human rights system. But I think the areas I will address will suffice to
make the point. Then I will conclude—be careful—with a few points of
advice and encouragement.
I begin with the traditional model of international adjudication, that of
interstate adjudicatory bodies. These bodies have one feature in common:
They derive their jurisdiction from the consent of states. They are generally
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[Vol. 20:2
created by treaty, and as a consequence they exist and operate within the
confines agreed to by states.
Though we have had examples in earlier times of arbitral
commissions, such as those established by the Treaty of Paris, and of ad
hoc tribunals, such as that established in the much-heralded Alabama
arbitration, the first permanent body of this kind was the Permanent Court
of Arbitration established by the First Hague Peace Conference in 1899.
The international lawyers of the time who drove that vision were navigating
uncharted territory. Never before had a permanent international court
existed, and many thought that the enterprise was quixotic and bound to
fail.
Those critics were wrong, as we know. Not only did the Permanent
Court of International Justice and the International Court of Justice follow,
but the soon-to-be-published Oxford Handbook on International Courts will
count at least twenty-five permanent international courts and tribunals in
existence. And these courts and tribunals have not only increased
dramatically in number, but considered cumulatively, they have also
acquired jurisdiction over an increasingly broad scope of subject matter and
ever more diverse actors, including individuals.
Some years ago it seemed the intellectual vogue to talk about the
fragmentation of international law, and many people thought of that as an
unhelpful development brought about by the proliferation of international
courts. But if you think of it from a different perspective, that is, as I said a
moment ago, as an increase in the quantum of conduct that is subject to
independent and impartial adjudication, it may appear differently. We
might, indeed, begin to think of this set of international courts as an
international judicial system.
I want to make two quick points in that vein. First, I want to focus on
the term “judicial,” in order to ask whether we are looking at judicial
institutions. I’m going to use the example of provisional measures before
the ICJ.8 It was long the majority view that provisional measures indicated
by the ICJ under Article 41 of the ICJ Statute were not binding. In the Case
on the Vienna Convention on Consular Relations, though, after the United
States failed to abide by an order of provisional measures requiring that it
take all steps necessary to halt the execution of a Paraguayan national by
the Commonwealth of Virginia, we made the argument on behalf of
Paraguay that the order was indeed binding and that, as a consequence, the
United States had breached an international obligation by failing to comply.
That case did not go forward, but that same set of facts repeated themselves
in the LaGrand Case, and there the Court held that provisional measures
8.
International Court of Justice.
2014]
Donovan
251
were binding. The question we had tried to put to the Court was
straightforward—was the Court a court? The Court’s reasoning was
equally straightforward, and I think it fair to say that it reduced to the
proposition that if the Court were to fulfill its function as a “judicial” organ,
it must have the authority to issue binding orders intended to preserve its
capacity to decide the dispute. That ruling, in turn, had considerable
influence over other international tribunals deciding, or reconsidering, the
binding character of their own provisional measures orders.
Second, I want to focus on the term “system,” in order to ask whether
we are dealing with an integrated justice system. The influence on one
another of the various international courts and tribunals that considered the
binding character of provisional measures would suggest that there was
some form of system at work. We might confirm that sense by considering
the further development by those international courts and tribunals that
have recognized the binding character of provisional measures of the
criteria for their issuance. Once these courts and tribunals decided that
provisional measures were binding, they needed to decide the
considerations by which an application would be evaluated. There has
ensued a rich dialogue, in particular between the ICJ and investor-state
tribunals constituted under the ICSID9 Convention and Rules and other
regimes. Must the court or tribunal consider the applicant’s prospects of
success, and at what threshold? What constitutes irreparable harm? Does
the objective to avoid exacerbating the dispute constitute an independent
ground on which provisional measures might be granted? The ICJ
continues to work through these issues, and, frequently referring to but not
always following ICJ jurisprudence, so do investor-state tribunals.
Indeed, as they consider awards rendered under other treaties on
similar issues, investor-state tribunals constituted on an ad hoc basis to hear
a single specific dispute now consider the very question of their relationship
with other tribunals in this radically horizontal structure. Given that
structure, is each tribunal a completely independent decision-maker, or
should it take into account other decisions in order to provide predictability
by developing a jurisprudence constant on recurring questions? In effect,
these tribunals are debating to what extent the investor-state arbitration
system is, in the end, an integrated system.
The second component of this international legal order that I want to
mention is what I would consider the emerging transnational justice system
represented by international commercial arbitration. What do I mean by
transnational? There are three distinguishing features. First, the system
involves the delegation of dispute resolution authority to decision-makers
9.
International Centre for Settlement of Investment Disputes.
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who are not directly appointed, regulated, or supervised by any individual
state or group of states. To me, this is truly striking, as one of the core
functions of the modern state is to provide for the impartial adjudication of
civil disputes, and then to bring its coercive authority to bear in order to
give effect to the resolution of the dispute. In international arbitration, that
authority is delegated to a decision-maker operating outside the direct
authority of any State.
The second feature of this transnational justice system is the
application of a diverse body of national and international law to both
substance and procedure. As to substance, it means that there is no such
thing as foreign law in international arbitration. As to procedure, there has
developed both a common set of expectations about the conduct of
international arbitrations and the recognition of the tribunal’s discretion to
diverge from that common set of expectations to meet the particular needs
of a given case.
The third feature I highlight is the willingness of national judicial
authorities to enforce the decisions of entities that operate not only outside
of their own jurisdiction, but outside the jurisdiction of any state. Due to
the almost universal ratification of the New York Convention, most
national courts are required to enforce foreign awards subject only to very
limited review—essentially to ensure the basic integrity of the process that
led to the award.
What does that mean for the practitioner? It means that we can
develop a litigation practice that literally spans the globe. For example, I
have tried cases in Moscow, Hong Kong, Rio, São Paulo, Zürich, Paris,
London, San Francisco, Washington, and New York. It means also that you
have the chance to work with and against truly talented lawyers from
literally around the globe. Just a few weeks ago, before the parties settled
the case on the Friday before a Monday start, we were about to try a case in
São Paulo in which we had French, Brazilian, and New York lawyers on
both sides, and a tribunal consisting of arbitrators from Belgium, Germany,
and Switzerland. And these cases go forward, as I said before, under a
wide variety of governing laws and pursuant to a wide variety of
procedures.
The third area I’d like to address is investor-state arbitration. It has
frequently been remarked that one of the great developments of
international law in the second half of the twentieth century has been the
expansion of its subjects, and perhaps the two most important components
of that development are, first, greater protection of fundamental human
rights and the development of the notion that international law regulates to
an important extent the relationship between nationals and their own state,
and, second, the recognition that individuals and business entities may
contract with and resolve disputes against states on the international plane.
2014]
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253
That latter phenomenon is manifested in the arbitration provisions of many
bilateral investment treaties.
You will know of the basic investor-state regime. Over the last several
decades, but at an accelerating pace more recently, there has been a
proliferation of bilateral and multilateral investment treaties with two
important features.
First of all, these treaties provide substantive
protections to nationals of one state investing in the other. But for my
purposes, even more importantly, they provide in most cases for the right of
an investor to bring arbitration proceedings to remedy breaches of the
substantive standards. In effect, one state makes an open-ended offer to
nationals of the other state as defined in the treaty to bring claims in their
own name against the host state for alleged violations of the treaty
protections. That, you will appreciate, is an extremely important move
away from the traditional model of diplomatic protection. And it is
reinforced by the obligation of other states, under either the New York
Convention or the ICSID Convention, to give effect to foreign arbitral
awards by reducing them to a national judgment.
To use a simple example from my own practice, some years ago we
represented a cement manufacturer whose plant in a Latin American state
had been expropriated. Had there been no applicable bilateral investment
treaty, the investor would have had to face the frequently insuperable
obstacles of suing the expropriating state in a national court. Instead, it
brought proceedings under the BIT10 and reached a settlement that would
almost certainly not have been possible absent the threat of the arbitration
proceedings. In a different case in which I sat as arbitrator, the tribunal
heard claims that actions by national prosecutors had breached the
obligation of fair and equitable treatment accorded the investor by the
bilateral investment treaty.
I turn finally to national courts. During the span of my own career,
there has been a dramatic increase in both the number and type of
international disputes submitted to national courts for resolution. National
courts now routinely interpret and apply treaties, including human rights
treaties and treaties governing more mundane matters, such as the Warsaw
Convention. Similarly, national courts regularly interpret and apply foreign
law, including in the interpretation of contracts, and more generally, resolve
commercial disputes between entities and individuals from different
jurisdictions.
National courts are also increasingly asked to adjudicate state conduct,
particularly in light of the widespread acceptance of the restrictive view of
sovereign immunity. Again, I’ll give you a few examples from my own
10.
Bilateral Investment Treaty.
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[Vol. 20:2
practice. I have done cases in which I have enforced the treaty rights of
international organizations within the U.S. legal system. I have litigated
sovereign immunity issues in the United States courts both in human rights
cases and in commercial cases, and I have also litigated the question of
what state should take cognizance of the dispute.
For example, I recently argued before the Third Circuit in a case
involving the alleged violation by a foreign insurance commissioner of an
anti-suit injunction issued by a U.S. federal court. The case arose when the
commissioner sought to enforce in the Cayman Islands a judgment rendered
in his own state. So, in effect, there was a three-way contest, and each of
those courts had to decide the extent to which where they were prepared to
assert their jurisdiction.
For another example, some years ago, we brought an action in federal
court against Ethiopia on behalf of a class of Eritreans whom Ethiopia had
deported during the Eritrean-Ethiopian War. We first went to the D.C.
Circuit on the question of whether diplomatic protection by Eritrea in the
form of claims brought before the Eritrea-Ethiopia Claims Commission in
the exercise of diplomatic protection constituted an adequate forum for
purposes of the forum non conveniens doctrine. We won on that score. We
then went back to the D.C. Circuit on the question of whether the necessary
contacts existed to confer subject matter jurisdiction under the FSIA.11 On
a fairly technical question, we did not prevail. But, again, the case serves as
an example both of litigation against foreign states in national court and of
courts trying to decide where such a case may be decided.
For another example, reverting to the transnational justice system I just
mentioned, U.S. courts, like other national courts are regularly asked to
determine whether to give effect to foreign arbitral awards. In a recent case
I argued in the Second Circuit, a Brazilian party was seeking to enforce an
arbitral award rendered in São Paulo. The losing party argued that it had
never agreed to arbitrate the dispute. We persuaded the Second Circuit that
the district court had erred by failing to give effect to the arbitral tribunal’s
determination that the dispute was within the scope of the arbitration clause
and hence that the tribunal had jurisdiction. The Court sent it back to the
district court to determine whether the parties had formed an arbitration
agreement in the first place, and proceedings are now pending there.
In a final example, we represented a foreign government in a case in
federal court in D.C. in which an adverse party sought to enforce an award.
We argued that the arbitral tribunal’s authority had been properly revoked
under the law applicable to the proceedings, that of the juridical seat. The
district court agreed, effectively, that if the arbitrators’ authority had been
11.
Foreign Sovereign Immunities Act.
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Donovan
255
validly revoked the arbitration could not have gone forward and the award
could not be enforced. So here’s another instance of a national court having
to decide whether to give effect to a foreign arbitral award.
So, before getting to the advice part, I want to talk about a set of recent
cases in which there was an especially dramatic intersection of the
international and national planes, which allows us to look closely at the
evolving international legal order. In the Avena case between Mexico and
the United States, the International Court of Justice held that the United
States had violated its obligations under the Vienna Convention on
Consular Relations in the case of fifty-two Mexican nationals on death row
in various states of the United States.12 To reach that decision, the ICJ had
to decide to what extent obligations under the treaty reached into the
criminal justice system of States party to the Convention, in the face of
arguments by the United States that the Court should not insert itself into
the dispute because, if it did, it would effectively be acting as a court of
criminal appeal.13 The Court held that there had been violations in fifty-one
of those cases, and provided as a remedy that the United States provide
review and consideration of those convictions and sentences within its own
legal system.14
By Article 94(1) of the United Nations Charter, the United States had
undertaken to comply with the judgment of the ICJ in any case to which it
was a party. President Bush, citing the paramount importance of complying
with that obligation for purposes of maintaining the credibility of the
United States in international affairs and the safety of U.S. nationals living,
working, and traveling abroad, issued a memorandum in which he ordered
state courts to take jurisdiction of claims for review and reconsideration by
any of the fifty-one nationals.
In the Medellín case, one of the Mexican nationals subject to the
Avena judgment sought to enforce that judgment, and as a consequence the
U.S. Supreme Court considered the constitutional issues arising from his
request.15 In that case, Medellín argued that pursuant to the Supremacy
Clause, which made treaties, like statutes, the supreme law of the land, U.S.
courts had to enforce the judgment by virtue of Article 94(1) without any
further action by the President or Congress.16 The President argued that the
U.S. courts did not have the constitutional authority to decide whether to
12.
Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004
I.C.J. 128 (Mar. 31).
13.
Id.
14.
Id.
15.
Medellín v. Texas, 552 U.S. 491 (2010).
16.
Id. at 504.
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enforce the judgment, but rather that that authority was entrusted to him by
virtue of his Article II foreign affairs power, and he asked the Court to give
effect to his determination that the United States would comply.17 Texas
argued that neither the Supremacy Clause nor the President’s determination
was sufficient, but that Congress had to legislate compliance.18 Nobody
questioned that the United States had an obligation to comply under
international law; the only issue was whether and how that obligation was
enforceable as a matter of U.S. law.
In the Medellín decision, the Supreme Court held that the Article 94(1)
obligation did not have the status of domestic law and that hence neither the
Court acting directly under the Supremacy Clause nor the President acting
pursuant to Article II could give that obligation effect.19 In its view,
because the Article 94(1) obligation was not “self-executing,” only
Congress could act to comply.20 Specifically, rather than assuming that the
President and the Senate, the constitutionally authorized treaty-makers,
would have intended the United States to comply absent contrary
congressional direction under the later-in-time rule, the Court reasoned that
Article 94(1) should be interpreted to preserve what it described as the
“option of noncompliance.”21
As Ruth mentioned in her introduction, I argued for Mexico in the ICJ
in Avena and for the petitioner in Medellín, so it will come as no surprise
that I disagree with the conclusion. But I am not, I am quick to assure you,
going to subject you this afternoon to my critique of that decision. I want
instead to make a simple point about our subject today.
In Avena, by fashioning the remedy that it did, I think it fair to
understand that the ICJ effectively invited the Supreme Court to partner
with it in the enforcement of international law. This time, the Supreme
Court declined that invitation. I maintain the hope that on some future
occasion, in some other case, a different result will ensue. But just the fact
that the situation arose in which the highest judicial organ of the United
Nations and the U.S. Supreme Court both had to consider these
fundamental questions and had to consider, in effect, the boundary between
each other’s authority illustrates in the brightest colors possible the
internationalization of law and legal practice that is this conference’s
theme.
17.
Id. at 523–24.
18.
Id. at 504.
19.
Id. at 498–99.
20.
Medellín, 552 U.S. at 525–26.
21.
Id. at 511.
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257
So, what does this all mean for all of you? Here, I direct my
comments to the students and young lawyers at the conference. I have tried
today to speak of four discrete spheres of international adjudication—the
interstate, the transnational, the investor-state, and the national—and to try
at the same time to suggest the coalescence to some degree of these spheres
into a greater international legal order. This system is dynamic, and it has
boundaries that are hard to define. Surely, for example, the traditional
dichotomy between public international and private international law
provides little help in understanding the international legal order as it exists
today. For these reasons, this system will be subject to your influence as
the international lawyers of today and tomorrow.
As you consider what role you might play in that international legal
order, I want to give you three pieces of advice and three points of
encouragement. First, if you want to be an international lawyer, a
practicing international lawyer, there are some basic skill sets that you will
need to have. I’ve suggested that this is a very wide legal order that touches
on a lot of different areas. So it will be very important to be well versed not
just in general public international law, not just in basic tools of treaty
interpretation and the like, but also in fields such as comparative law, in
commercial law, and in human rights law. In but one example, one of the
debates happening at the moment in the investor-state community is the
extent to which human rights law should have an impact on investment
treaty interpretation and hence investor-state arbitration. To be an effective
international lawyer, you need to have broad training in international law
but also a grounding in national law and their intersection.
Secondly, no matter what form of practice you might take, whether
you’re going to be an advocate, a private advisor, an international
transactional lawyer, a regulator, or a policy-maker, whether you’re going
to work at a law firm, a private company, an NGO,22 an international
organization, a foreign ministry, or another government body, you should
have a sound grounding in international economics and corporate finance.
This suggestion sometimes comes as a great shock to young lawyers
thinking that they’re going to practice international law. But governments
are economic actors as well as regulators, and private companies generate
enormous impact precisely because of their economic activity, and if one
wishes to be effective in addressing that activity, whatever the context, one
should have the relevant expertise.
And finally, if you want to be an advocate, it’s extremely important
that you have a wide range of advocacy skills. That is, if you’re going to be
an international practitioner, you really should be prepared to stand up in a
22.
Non-Governmental Organization.
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national court one week, before an international arbitration tribunal
composed of three common lawyers or civil lawyers or a mix of both the
next, and in an international court or tribunal after that. What does that
mean? That means you should be well trained in your own advocacy
culture. We all come from some place and we all have to get our first set of
skills. But we must also be prepared to adjust to new advocacy cultures so
that you can operate in a wide variety of fora.
I will give you an example from international arbitration. As
international arbitration has become more and more international, that is as
more and more nationals from the jurisdictions that it actually affects
become practitioners, and administrators, and arbitrators, we see the
phenomenon, wonderful to watch, of young lawyers from Brazil, and India,
and Japan, and other jurisdictions, many of whose advocacy cultures may
not use cross-examination, become skilled cross-examiners.
Why?
Because the general set of expectations in most international arbitrations
these days is that there will be witness testimony and that it will be subject
to cross-examination. And so you have young lawyers who, in order to
succeed in this transnational system, have developed skills that they
wouldn’t have necessarily developed in their original advocacy culture. So
as I say, it is well and good to be grounded in your own advocacy culture,
but you’ve got to be prepared to operate in a variety of systems.
I want to finish, if I may, with three points of encouragement. The
bottom line is that you are incredibly lucky to be at this point in your career.
As I said at the outset of these remarks, I started with a strong instinct about
what I wanted to make happen, but I would never have been able to predict
how things would actually play out. As Ruth will confirm, when you clerk
at the U.S. Supreme Court, you always watch the arguments with the hope
that you will have the chance to stand there some time. But when I lived in
The Hague, and passed the Peace Palace virtually every day on my way to
the Tribunal, I never wondered whether I would have the chance to argue
there, before the ICJ or any of the other international tribunals that
occasional conduct proceedings there. Yet because of the developments of
which I’ve spoken today, I’ve argued several times more in the Peace
Palace than in the U.S. Supreme Court. You are sitting here now knowing
that this international legal order, this universe, is expanding. That’s for
sure. But you don’t know how it’s going to expand, and you don’t know
yet what you’ll be doing twenty-five years from now. I’m going to suggest
that there are three things that make it well worthwhile plunging ahead.
First of all, it’s enormous fun. If you are an international legal
practitioner, you get to work with smart, dedicated, principled lawyers from
all over the world. As much as I am a sentimental U.S. patriot, I love the
opportunity to work all the time with people from all over the world. They
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will often have different backgrounds, different assumptions, different legal
training, different politics. It all makes for a great challenge, and a truly
rich intellectual exchange.
Second, and I say this recognizing that it may be that everybody thinks
this about their own practice, but in this area of international law and
international dispute resolution, theory and practice are very closely
intertwined, and we are constantly dealing with legal issues where the
public policy driving the issue is at the surface or right beneath it. Many of
the legal issues I’ve just talked about, in public international law, in
investor-state arbitration, in commercial arbitration, in national law like the
FSIA, will be driven by important policy considerations. If you are
prepared to test the theory against the practice and then have the practice
test the theory, you will understand both dimensions much more fully.
And finally, I would hope that wherever you go and whatever practice
area you take, you think of international law as an important component of
the rule of law. At the end of the day, we’re all in this business because we
believe that the rule of law has the capacity to contribute to social and
economic development, to protect people from physical and economic
insecurity, and, at the risk of sounding grandiose, to promote the dignity of
the human person.
That’s why we’re lawyers; that’s why we think of ourselves as part of
a noble profession. I hope that you remember that you are all members of
an increasingly visible, an increasingly influential, and an increasingly
global college of international lawyers, and that in that capacity you will
pursue the goal of a just world under law.
Thanks very much.
OVER THERE: TEACHING INTERNATIONAL AND
COMPARATIVE LAW AT WEST POINT
Robert J. Goldstein*
I.
II.
III.
IV.
V.
VI.
INTRODUCTION ................................................................................ 261
TEACHING LAW AT WEST POINT: A BRIEF HISTORY ..................... 264
RULE OF LAW AND THE MILITARY.................................................. 267
INTERNATIONAL LAW IN THE CORE COURSE .................................. 268
COMPARATIVE LAW ........................................................................ 271
THE PANEL, “TEACHING INTERNATIONAL LAW OUTSIDE LAW
SCHOOLS”........................................................................................ 273
I. INTRODUCTION
The 2013 International Law Weekend panel discussion, “Teaching
International Law Outside Law Schools,” was considered by many present
to be a novel reflection on the challenges of transplanting a law school-level
course in international law to non-law students. At the United States
Military Academy1 (Academy), an undergraduate institution, the teaching
of law, particularly international law, has been a staple of cadet education
for almost 200 years.2
*
Professor of Law and Director of the Center for the Rule of Law, United States Military
Academy. The views expressed in this Article are those of the Author alone, and do not necessarily
represent the views of the United States Military Academy, the United States Army, or the government
of the United States. The Author is also an adjunct law professor at Pace Law School in White Plains,
New York, where he simultaneously teaches law students during the evening while teaching cadets
during the day.
The title of this article refers to GEORGE M. COHAN, OVER THERE (William Jerome Publ’g Corp.
1917). Cohan wrote Over There to recognize the consequences of the German declaration of war on the
United States on April 6, 1917, spurring our involvement in World War I. Cohan purportedly lived near
West Point in Central Valley, New York in a house that burned down in the 1960s. See Dick Moomey,
A Yankee Doodle Dandy, WRITER WORKING (June 30, 2013), http://www.writerworking.net/yankeedoodle-dandy/ (last visited Mar. 5, 2014). That property is now part of West Point. See The Gatehouse
Committee, WOODBURY HIST. SOC’Y, http://www.woodburyhistoricalsociety.org/gatehouse.html (last
visited Feb. 5, 2014).
1.
The United States Military Academy is also known as West Point (technically both its
physical location and the name of the Garrison), USMA, and especially where athletics are concerned,
Army. Students at the United States Military Academy are denominated “cadets.” The Academy is a
federal institution created by statute, 10 U.S.C. § 4331 (2006), which details governance of the
Academy and the process for selection of cadets and faculty.
2.
Colonel Patrick Finnegan, The Study of Law as a Foundation of Leadership and
Command: The History of Law Instruction at the United States Military Academy at West Point, 181
MIL. L. REV. 112, 112 (2004).
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The Academy, a storied institution,3 was founded by Thomas Jefferson
in 1802 at West Point, New York,4 the spot chosen by George Washington
as pivotal to the defense of the fledgling country during the Revolutionary
War.5 Cadet education remains driven by the Academy’s mission of
preparing students for a career in the United States Army.6 In this unique
setting, cadets undergo rigorous military training while completing a
Bachelor of Science degree at what is ranked among the nation’s finest
liberal arts colleges.7
Law is currently taught to all cadets in the form of a “core” (required)
course in Constitutional and Military Law (Law 403).8 Taught by the
Academy’s Department of Law, which was chartered in 1874,9 the course
currently incorporates the teaching of basic international law largely for the
purpose of teaching all cadets the laws of armed conflict.10 While this
Article will recount some of the history of teaching law at West Point, and
will detail the reasons for its continued necessity in the education of leaders
of character,11 much of it will detail the current needs of the Army and how
that translates into specific curricular needs. The current required and
elective course offerings in this area will be described in some detail, and
special attention will be paid to the Author’s course in Comparative Law.
3.
Cadet life at West Point has been the subject of multiple films, including classics such as
THE WEST POINT STORY (Warner Bros. 1950) and FRANCIS GOES TO WEST POINT (Universal 1952);
documentaries such as A GAME OF HONOR (CBS Sports 2011); a television series, WEST POINT (ZIV
Programs 1956–58) (aired on CBS 1956–57 and ABC 1957–58); and a reality show, SURVIVING WEST
POINT (Nat’l Geographic 2002).
4.
7 ANNALS OF CONG. 1312, §27 (1802).
5.
William F. Prosser, A Visit to West Point, 2(2) THE WASHINGTON HIST. Q. 105, 105
(1908), stating that: “[West Point] was the favorite fortress of General George Washington because of
its military importance, and it gave him more trouble and anxiety than any other, knowing as he did that
the British forces in the neighboring city of New York also realized its immense value for strategic
purposes . . . .”
6.
Cadets are members of the United States Army, receiving pay during the forty-seven
months they will spend as cadets at the Academy.
7.
The Academy is rated seventh in this particular ranking of universities, below top-rated
Stanford, but above eighth-rated Harvard.
See America’s Top Colleges, FORBES (2014),
http://www.forbes.com/top-colleges/list/ (last visited Feb. 22, 2014).
8.
This course is also referred to as “Law 403.”
9.
Finnegan, supra note 2, at 115.
10.
See U.S. MILITARY ACAD., ACADEMIC PROGRAM 209 (Aug. 20, 2013), available at
http://www.usma.edu/curriculum/SiteAssets/SitePages/Course%20Catalog/RedBook_GY2016_201312
16.pdf (last visited Feb. 22, 2014) [hereinafter REDBOOK].
U.S.
MILITARY
ACAD.
WEST
POINT,
11.
The
West
Point
Mission,
http://www.westpoint.edu/about/SitePages/Mission.aspx (last visited Feb. 5, 2014) [hereinafter The
West Point Mission].
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263
Teaching cadets is a unique and rewarding experience. They wear
their meticulously kept uniforms, address their instructors as Ma’am or Sir,
come to attention when the class is called to order, and exhibit a well-honed
sense of discipline day-in and day-out. Cadets are generally very bright and
motivated undergraduate students, achieving the Academy’s rigorous
admissions requirements, and completing a summer of basic training
commonly referred to as “Beast Barracks.”12 The classes are punctuated by
star cadets, who literally wear stars on their uniforms for superior academic
performance, earning a wide-array of prestigious scholarships including
Rhodes, Marshall, and Truman Scholarships.13
The mission of the Academy is “[t]o educate, train, and inspire the
Corps of Cadets so that each graduate is a commissioned Leader of
Character committed to the values of Duty, Honor, Country; and prepared
for a career of professional excellence and service to the Nation as an
officer in the United States Army.”14 The academic side of the Academy is
the province of the Dean of the Academic Board and is carried out by the
academic departments.15 Each course has a “course director” whose job is
to craft the syllabus and manage the faculty that will be teaching individual
classes. Classes are held on a traditional semester basis, with summers
reserved for military training and enrichment activities.16 They consist of
forty “lessons” that generally last for fifty-five minutes. Conversely, Law
403 lasts for seventy minutes and the idiosyncratic calendar, known as the
“buff card” at West Point, labels days as a “1-day” or “2-day,” rather than
employing the more conventional Monday through Friday schedule.
The faculty at West Point is comprised of three basic groups:
Permanent military faculty; rotating military faculty; and civilian faculty.17
Despite their position in the military organization, faculty members are
assured of their academic freedom. Nonetheless, faculty members are
12.
See Jesse L. Germain, Physical Program Leadership: From Kinesiology in the Classroom
to Fitness Training in the Field, 62 QUEST 287, 287 (2010).
13.
Rhodes Scholarships: Number of Winners by Institution, RHODESSCHOLAR.ORG,
http://www.rhodesscholar.org/assets/uploads/2013_Institutions_Winner%20Count_10_8_13.pdf
(last
visited Feb. 5, 2014) (West Point has had eighty-nine Rhodes Scholars to date.).
14.
The West Point Mission, supra note 11.
FRANK BORMAN, REPORT TO THE SECRETARY OF THE ARMY BY THE SPECIAL
COMMISSION ON THE UNITED STATES MILITARY ACADEMY 49–50 (Dec. 15, 1976), available at
http://www.west-point.org/publications/borman.html#2 (last visited Feb. 22, 2014).
15.
16.
U.S. MILITARY ACAD. WEST POINT, ADMISSIONS CATALOG 5 (2013–2014), available at
http://www.usma.edu/admissions/shared%20documents/wp_admissions-catalog_2013-14.pdf
(last
visited Feb. 5, 2014).
17.
See
New
Faculty
Guide,
U.S.
MILITARY
ACAD.
WEST
POINT,
http://www.usma.edu/law/SitePages/New%20Faculty%20Guide.aspx (last visited May 7, 2014).
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aware of the overarching mission of the Academy and the needs of their
students to function successfully within their chosen careers as professional
soldiers.
Military training is in the hands of the Academy’s Commandant, a
Brigadier General assigned to train around 4400 members of United States
Corps of Cadets (Corps).18 The Corps is organized as a military brigade,
divided into four regiments, and further divided into battalions and
companies.19 Military training continues throughout the year with much
more intensive training over the summer.20
In addition to academics and military training, cadets have significant
physical fitness requirements, including the Army’s personal fitness test.
Cadets are physically tested regularly and have to maintain high standards
in those activities. Most cadets play competitive sports. On graduation,
cadets will be commissioned as Second Lieutenants in the Army, and
shortly thereafter, will be placed in leadership positions where they will
lead troops and play their role as officers in the military justice system.21
II. TEACHING LAW AT WEST POINT: A BRIEF HISTORY
West Point is located a mere thirty-five miles from New York City. Its
position, which is high above the western bank of the mighty Hudson
River22 and overlooks the spot where the river changes its north-to-south
course to run west-to-east for a short distance, was what prompted General
Washington to establish a garrison to defend this critical waterway.23 This
is the same military garrison that Benedict Arnold sought to betray by
selling its plans to the British.24
18.
About the Brigade Tactical Department, U.S. MILITARY ACAD. WEST POINT,
http://www.usma.edu/btd/SitePages/About.aspx (last visited Feb. 5, 2014).
19.
Id.
20.
ADMISSIONS CATALOG, supra note 16, at 5.
21.
See generally ROBERT J. GOLDSTEIN, ET AL., SERVICEMEMBER AND VETERANS RIGHTS
(Brian Clauss ed., 2013).
22.
The Hudson River is really an estuary below the Federal Dam at Troy, New York. This
means the River is tidal, enhancing its navigability and making it a major channel of travel and
commerce to this day.
23.
POUGHKEEPSIE JOURNAL, WEST POINT: LEGEND ON THE HUDSON 34 (2003).
24.
Id. at 32–33. General Washington also understood the importance of law, and in
particular, Army lawyers. He founded the Judge Advocate General’s (JAG) Corps in 1775, and is
known to have sent a pressing letter asking for legal advice from his JAG attorney as one of his first acts
after discovering that Benedict Arnold had defected to the British. RICHARD VARICK, THE VARICK
COURT OF INQUIRY TO INVESTIGATE THE IMPLICATION OF COLONEL VARICK (ARNOLD'S PRIVATE
SECRETARY) IN THE ARNOLD TREASON 208–09 (Albert Bushnell Hart ed., 1907).
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In 1802, President Thomas Jefferson founded the Academy as the first
school of engineering in the country.25 Regulations provided for “a course
in Ethics [which] shall include Natural and Political Law.”26 According to
Brigadier General Patrick Finnegan’s authoritative history of the West
Point Department of Law, “[t]he study of natural and political law was
intended to foster the intellectual and cultural growth of the cadets, as well
as to develop their reasoning ability, and instill in them the basic principles
of a society based on the rule of law.”27 This charter for legal education at
West Point most closely resembled what Professor Charles R. McManis
called the “Virginia Model” of legal education, derived from the
contributions of Thomas Jefferson to American legal education.28 It is
followed at the other school founded by Jefferson, the University of
Virginia, and is characterized by McManis as providing “Practical Training
for Citizenship and Public Service.”29
The teaching of law at the Academy began in earnest in 1821,
according to Finnegan, when a treatise called The Law of Nations by
Mónsieur De Vattel, was adopted as a textbook.30 Constitutional Law was
soon added.31 In 1858, additional topics were added to the law curriculum,
25.
POUGHKEEPSIE JOURNAL, supra note 23, at 35.
26.
1816).
Finnegan, supra note 2, at 112 (quoting REGULATIONS OF U.S. MILITARY ACAD. 10, July
27.
1953): 3).
Id. at 112–13 (citing Charles W. West, Department of Law, U.S.M.A, Assembly XII (Apr.
28.
Charles R. McManis, The History of First Century American Legal Education:
Revisionist Perspective, 59 WASH. U. L. Q. 597, 621 (1981).
29.
A
Id.
30.
Finnegan, supra note 2, at 112 (referring to EMERICH DE VATTEL, THE LAW OF NATIONS
OR THE PRINCIPLES OF NATURAL LAWS (1758)).
31.
As Finnegan notes, “[t]he study of American constitutional law replaced natural law
(which emphasized international law) in 1827, but by 1838 the course of study in law provided for
instruction in both constitutional and international law.” Finnegan, supra note 2, at 113. Finnegan also
relates the intriguing story of the role that the use of the text A View of the Constitution of the United
States of America by William Rawle, in teaching law at antebellum West Point played in the Civil War.
Id. As he notes:
Rawle’s treatise concluded that a state has a legal right to secede from the Union,
and this was most likely the basis for the post-Civil War argument that West
Point had taught “secession” for decades and thus was responsible for many West
Point graduates fighting for the Confederacy. Although it is impossible to know
the precise extent of Rawle’s influence, his ideas had a profound effect on at least
some cadets. Gen. Robert E. Lee, Class of 1829, confided in Bishop Joseph
Wilmer of Virginia that, if he had not read Rawle’s work as a cadet, he would
never have left the Union.
Id.
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including Military Law, which according to Finnegan became “a subject of
great professional interest to future Army officers.”32 During this period,
the Chaplain was assigned to teach law, until 1874 when the Department of
Law was established.33
The Department of Law is nearing its 140th year and currently teaches
every cadet that graduates from the Academy. The professors are all
lawyers with practical experience. Military members of the faculty are
handpicked from the ranks of the Judge Advocate General’s Corps (JAG),
who are the lawyers for the Army. Civilian professors have also been part
of the West Point Law faculty since the 1970s.
The Department of Law, in fulfilling the role of educating leaders of
character for the Army, has the very specific role of preparing those leaders
to assume their role within the military justice system. Under Uniform
Code of Military Justice (UCMJ), officers in the chain-of-command bear
legal responsibility for the criminal justice system.34 This responsibility
includes attending to administrative actions geared toward rehabilitating
service members who have misbehaved, presiding over non-judicial
punishment adjudications, and the convening of courts-martial.35 Officers
managing this system are charged with maintaining “good order and
discipline” in their units, and these are the administrative and legal tools
afforded to accomplish that goal.36
Additionally, officers in the military that wield extraordinary power
must understand and respect the concept of civilian rule of the military and
recognize their oath to defend the Constitution of the United States. As in
the dissenting opinion of the case of Korematsu v. United States, which is
the first case cadets read in their core course, Justice Robert Jackson states,
“[i]f the people ever let command of the war power fall into irresponsible
and unscrupulous hands, the courts wield no power equal to its restraint.”37
Thus, the aforementioned “Virginia Model” still characterizes legal
32.
Id. at 114. The Civil War, as Finnegan notes, had brought about a codification of the laws
of war by Francis Lieber, which became known as the Lieber Code. See id.
33.
Finnegan, supra note 2, at 115.
34.
GOLDSTEIN, supra note 21, §1.02.
35.
Id.
36.
Id. §1.01.
37.
Toyosaburo Korematsu v. United States, 323 U.S. 214, 248 (1944). We use this case for
multiple purposes including as an introduction to the application of strict scrutiny to cases of racial
discrimination; the enormous power that Army officers will wield; and the application of “deference” to
the military in cases involving national security. In his classes, the Author emphasizes to cadets that
“deference” must be earned by officers with critical thinking and respect for the rule of law.
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education at West Point.38 However, it might be rephrased to read that legal
education provides practical training for officership, citizenship, and public
service.
III. RULE OF LAW AND THE MILITARY
Although rule of law as a conceptual matter has been described as
“stand[ing] in the peculiar state of being the preeminent legitimating
political ideal in the world today, without agreement upon precisely what it
means,”39 the military has crafted a pragmatic interpretation that has been
applied to its operations.40
The years of war in Afghanistan and Iraq that followed the events of
September 11, 2001, led to many revelations of the nature of war fighting in
those conflicts.41 Warfare forced the military to adopt a strategy of counterinsurgency, known as “COIN” to deal with the conflict.42 It also laid bare
the need to understand how to successfully end conflicts and restore order
after them. Key to this understanding was the recognition that rule of law
was an essential component of any governmental system left in place at the
end of a conflict and restoring rule of law was tantamount to the “winning”
of the conflict. The military has defined the rule of law as having seven
“effects” including:
1)
2)
3)
4)
5)
38.
The state monopolizes the use of force in the resolution of
disputes;
Individuals are secure in their persons and property;
The state is itself bound by law and does not act arbitrarily;
The law can be readily determined and is stable enough to
allow individuals to plan their affairs;
Individuals have meaningful access to an effective and
impartial legal system;
McManis, supra note 28, at 621.
39.
BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 4 (Cambridge
University Press, 2004).
40.
CTR. FOR LAW & MILITARY OPERATIONS, THE JUDGE ADVOCATE GEN.’S SCH., U.S.
ARMY
RULE
OF
LAW
HANDBOOK
3
(2011),
available
at
http://www.loc.gov/rr/frd/Military_Law/pdf/rule-of-law_2011.pdf (last visited Feb. 22, 2014)
[hereinafter ROL HANDBOOK].
41.
Captain Ronald T. P. Alcala, Vanquishing Paper Tigers: Applying Comparative Law
Methodology to Enhance Rule of Law Development, 2011-MAR ARMY LAW. 5, 5–6 (2011), available at
http://www.loc.gov/rr/frd/Military_Law/pdf/03-2011.pdf (last visited Feb. 22, 2014).
42.
See generally DANIEL MARSTON, COUNTERINSURGENCY IN MODERN WARFARE (Osprey,
1st ed. 2011).
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6)
7)
[Vol. 20:2
The state protects basic human rights and fundamental
freedoms; and
Individuals rely on the existence of justice institutions and
43
the content of law in the conduct of their daily lives.
Identifying the importance of rule of law to the military, the JAG has
dedicated considerable effort to what are termed “rule of law operations.”44
They are defined as “any project, program, or planned action whose
specific goal is to help a host nation move toward the realization of one or
more of the seven effects [of the rule of law].”45 The placement of this
importance on the concept of rule of law in the military has enhanced its
role in the law courses taught at West Point, as demonstrated in the core
course and the Comparative Law elective described below.
IV. INTERNATIONAL LAW IN THE CORE COURSE
Cadet curriculum includes a wide range of core courses, including a
series of engineering courses in sequence. The Law Department’s class,
Law 403, is among the core courses.46 Taken by most cadets in their
“firstie” (senior) year, Law 403 covers basic constitutional law, including
the powers and limitations of the federal government, its branches, and
individual rights.47 The course then covers the military justice system,
which is criminal law for the military.48 Finally, there is a focus on the law
of armed conflict.49
In teaching this last part of the course, good use is made of earlier
lessons that have laid the ground work for understanding international law,
and in particular, the role of international law domestically. For instance, a
critical case used in teaching the jurisdiction of the UCMJ, which is the
statute that contains substantive military criminal law, is Reid v. Covert.50
The facts in that case involve murders of service members on military bases
in England and Japan and defendant spouses who were tried by courts-
43.
ROL HANDBOOK, supra note 40, at 3.
44.
Id. at 10.
45.
Id.
STATES
MILITARY
ACAD.
46.
Curriculum,
UNITED
http://www.usma.edu/law/SitePages/Curriculum.aspx (last visited Feb. 5, 2014).
WEST
POINT,
47.
See Mark L. Toole, LW403 Constitutional and Military Law Syllabus, Class Schedule and
Reading Assignments 1 (Fall 2013) [hereinafter LW 403 Syllabus].
48.
Id. at 3.
49.
Id. at 5.
50.
See generally Reid v. Covert, 354 U.S. 1 (1957).
2014]
Goldstein
269
martial.51 While the Supreme Court was delineating the UCMJ’s
jurisdiction, they were also outlining limitations of the Constitution’s treaty
power with regard to fundamental rights.52 Specifically in Reid, the Fifth
Amendment right to a grand jury (excluded by the Amendment for the
military) and the Sixth Amendment right to a trial by jury, for which the
UCMJ substitutes a “Trial Panel” composed of military service members,
not peers of civilians.53 The Court ruled that this was not permissible
regardless of the fact that a treaty, the NATO Status of Forces Agreement,
(which applied to the military posts where the murders were committed)
was “the supreme law of the land.”54
Similarly, notwithstanding the limitation of fundamental rights, the
United Stated Supreme Court in Missouri v. Holland55 held that the
Migratory Bird Treaty56 could limit other rights, such as the right to hunt
and take birds under the treaty power.
In addition, in teaching the basics of criminal law and procedure,
cadets have a broad enough background to understand the role of
international law as it concerns the law of armed conflict. The first lesson
is very similar to an introduction in a law school course that covers the
sources of international law and the organization of the international legal
system. For instance, the case of The Paquette Habana is taught57 to relate
its primary message that “[i]nternational law is part of our law.”58 The
Paquette Habana is also useful in identifying the sources of international
law other than those found in treaties, as “resort must be had to the customs
and usages of civilized nations, and as evidence of these, to the works of
51.
Id. at 3–4.
52.
Id. at 8–9.
53.
Id. at 5.
54.
Reid, 354 U.S. at 17 (“It would be manifestly contrary to the objectives of those who
created the Constitution, as well as those who were responsible for the Bill of Rights . . . to construe
Article VI as permitting the United States to exercise power under an international agreement without
observing constitutional prohibitions.”).
55.
Missouri v. Holland, 252 U.S. 416 (1920). The court in Reid v. Covert contrasted
Missouri v. Holland noting that it concerned the Tenth Amendment: “To the extent that the United
States can validly make treaties, the people and the States have delegated their power to the National
Government, and the Tenth Amendment is no barrier.” Reid, 354 U.S. at 18.
56.
Holland, 252 U.S. at 430–31 (This case was brought by the state to “prevent a game
warden of the United States from attempting to enforce the Migratory Bird Treaty Act of July 3, 1918, c.
128, 40 Stat. 755, and the regulations made by the Secretary of Agriculture in pursuance of the same.”).
57.
The Paquette Habana, 175 U.S. 677 (1900). It should not be surprising that many of the
cases that we study in this course have military-focused fact patterns, these engage cadets, and also
provide for many dimensions of the lessons we take from them in addition to the court’s ruling.
58.
Id. at 700.
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jurists and commentators . . . not for their speculation of what the law ought
to be, but for trustworthy evidence of what the law really is.”59 This
provides a strong foundation for understanding and applying the laws of
armed conflict.
Because of its impacts on the law of armed conflict, cadets are shown
a documentary on the Nuremburg Trial.60 Then each aspect of the law of
armed conflict is addressed in detail, which includes military necessity,
distinction, proportionality, and unnecessary suffering by using cases and
practical exercises.61 There is a separate lesson to discuss command
responsibility and the defense of obedience to orders. Finally, this
knowledge is used to explore the Guantanamo cases and their
implications.62
In teaching Law 403, great pains are taken to make it a law schoollevel course. The goal is to stimulate critical thinking among the cadets and
have them apply it to their decision-making. Many law faculty members
use different versions of the Socratic Method in reviewing the case excerpts
that are part of each lesson’s reading. Earlier in their education, West Point
cadets study the American political system, which is a focus on the
constitutional conflicts that present themselves, and the law used in their
resolution. Finally, the faculty is also responsible for teaching the
understanding that the military is subservient to civilian authority and must
operate in the context of rule of law. The Department of Law currently
teaches several other courses that incorporate international law in their
curriculum, including International Law, it includes Comparative Law
(discussed below), Environmental Law, Law of Armed Conflict, and
Advanced Law of Armed Conflict.63
59.
Id.
60.
NUREMBERG: TYRANNY ON TRIAL (History Channel 1995).
61.
It is important to note that we pay great heed to teaching the law of armed conflict, and are
constantly updating the practical exercises and lessons to coincide with developments in the law. The
faculty of the Department of Law is constantly engaged in research and scholarship in this area, such as
the Author’s proposal to create an affirmative duty of servicemembers to prevent war crimes by
members of their own units. This would hold soldiers who witness war crimes by their colleagues, and
take no action to prevent them, liable as accessories. See generally Robert J. Goldstein, Enlisting an
Army to Combat War Crimes, ABA SECTION OF LITIGATION, MILITARY LAWYERS (Mar. 21, 2013).
62.
LW 403 Syllabus, supra note 47, at 5. The LW 403 Syllabus assigns the case edited
versions of Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and Boumediene v. Bush, 553 U.S. 723 (2008),
in two consecutive lessons; while we reference Rasul v. Bush, 542 U.S. 466 (2004), and Hamdi v.
Rumsfeld, 542 U.S. 507 (2004), in each class.
63.
REDBOOK, supra note 10, at 417–18.
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Goldstein
271
V. COMPARATIVE LAW
The course in Comparative Law, which became part of the curriculum
for the class of 2005, took full cognizance of the needs of the military with
regard to the rule of law but was primarily an academic exercise focused on
providing cadets with an understanding of different strains of law that were
very much unlike American law.64 To that end, a broadly focused text,
Legal Traditions of the World65 by H. Patrick Glenn, was assigned to lay
the foundation for diverse legal traditions with its emphasis particularly on
tribal tradition or “chthonic” law. Supplementing this text were articles (all
of which were accessible on the Internet) that evaluated a variety of legal
systems using the rule of law criteria.
A challenge in delivering this course was that few of the cadets had yet
studied Law 403, so the introduction to Comparative Law had to serve the
purpose of an introduction of law in general. To accomplish this dual
purpose, the faculty used the example of the French experience with the
question of Muslim women wearing head coverings in public schools—
what became commonly known as the “Headscarf Affair.”66 It proved to be
a topic that engaged cadets in lively discussion of justice, law, and the
profound differences in legal systems, with its idiosyncratic journey
through the French concepts of “Laicite.”67
With that introduction, varying definitions of the rule of law were
broken down into a menu of components that was used to evaluate each
legal system. The components used were based on those identified by Lord
Bingham in his article, The Rule of Law.68 Despite referencing this wellreasoned and respected definition, it was understood that not all
components would be absolutely necessary to achieve that critical mass that
was identified as rule of law. Importantly, cadets were urged to be critical
of the amalgam offered by any particular system.
The idea of
constitutionalism was also studied, and a lecture by Harvard Law Professor
Noah Feldman, entitled Imposed Constitutionalism, was viewed.69
64.
Finnegan, supra note 2, at 137 n.151.
65.
H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD (4th ed. 2010).
66.
See generally Elise T. Beller, The Headscarf Affair: The Conseil D’Etat on the Role of
Religion and Culture in French Society, 39 TEX. INT’L L.J. 581 (2004).
67.
See generally id.
68.
See generally Lord Bingham, The Rule of Law, 66 CAMBRIDGE L. J. 67, 69–82 (2007).
69.
See generally Noah Feldman, Imposed Constitutionalism, 37 CONN. L. REV. 857 (2005)
(lecture delivered Mar. 28, 2012).
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Particular attention was paid to the idea of due process of law by the initial
reference to Trial by Franz Kafka.70
To begin looking at individual systems, a variety of theories were
introduced dealing with rule of law and constitutionalism. Following
Professor Glenn’s lead, Chthonic law and Jewish law were tackled before
spending a significant amount of time on Islamic law.
Islamic law has been an important topic to a military that has been
repeatedly deployed in the Middle East since the first Gulf War. In the
post-September 2011 deployments, service members were cast in roles
requiring governance of areas under military control. Attempts that were
made to apply American legal ideas in regions that had long followed
traditions, both Chthonic and Islamic, were met with local resistance, at
best. As Feldman notes, “even though Islam never eliminated tribalism or
its identities, it has, at least in cities, historically been very successful at
replacing tribal dispute resolution with Islamic legal institutions.”71 The
lack of understanding on the part of the military, regarding the fact that
local rule of law was not anything like western rule of law, resulted in a
reevaluation of those efforts and an intensified attempt to better understand
their legal systems.72 In addition, the prolonged Arab Spring presented the
unique opportunity to observe the precipitous changes in Islamic
countries.73
Islamic law presented several challenges in teaching. The greatest of
these were the misconceptions that permeated discourse in the media and
dramatically on the Internet.74 These misconceptions were faced head-on
by the following: First, by the understanding that many of the negative
opinions were based not on Islamic law and practices, but on Chthonic
traditions that persisted in many of these regions; and second, by the
similarities with Jewish law that were emblematic of mainstream Islamic
society, and could be seen as Biblical and not heretic. Importantly, a closer
examination of the more conservative Islamic law countries, including
70.
THE TRIAL (Paris Europa Productions 1962).
71.
See NOAH FELDMAN, THE FALL AND RISE OF THE ISLAMIC STATE 140–41 (Princeton
University Press, 1st ed. 2008).
72.
Thomas Ayres, The JAG Corps and Rule of Law Reform: An Interview with Brigadier
General Thomas Ayres, 14 U. PA. J.L. & SOC. CHANGE 391, 391–92 (2011).
73.
See generally Rosa Brooks, Lessons for International Law from the Arab Spring, 28 AM.
U. INT'L L. REV. 713, 714–15 (2013).
74.
This kind of rhetoric was quickly condemned by General Martin Dempsey, the Chairman
of the Joint Chiefs of Staff, when it came to light that an instructor at the Joint Forces Staff College had
characterized Islam as a “barbaric ideology.” Pentagon Condemns 'War on Islam' US Training Class,
BBC NEWS US & CANADA (May 11, 2012, 12:12 PM), http://www.bbc.co.uk/news/world-us-canada18032968 (last visited Jan. 29, 2014).
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Saudi Arabia and Iran, showed that the strict application of traditional
Shari’a (Islamic law) was not in fact, synonymous with militancy.75 These
conservative Islamic systems, while plainly deficient in terms of rule of
law, were also not emblematic of much of the rest of the Islamic world,
especially with regard to equal protection of women and non-Muslims.76
The semester continued with a series of readings and class discussions
on a variety of legal systems including the People’s Republic of China and
the now-defunct Soviet Union. For each system, the cadets were tasked
with evaluating the quality of the rule of law afforded by the system in
practice. This effort was to be replicated in a final paper evaluating a
chosen and faculty approved legal system. Finally, we evaluated aspects of
international law to analyze its rule of law dimensions.
Cadet feedback after the semester, demonstrated that they generally
enjoyed learning Islamic law because it is something that they had little
knowledge of and because it is relevant to our future jobs.77 They also
related that they came to understand the importance of the rule of law.78
One cadet mentioned that the most valuable aspect is the concept of rule of
law and learning how to use it to compare different legal systems.79
Finally, the cadets appreciated the broad array of systems that were covered
and the cultural aspects that drove many of the differences they witnessed.
VI. THE PANEL, “TEACHING INTERNATIONAL LAW
OUTSIDE LAW SCHOOLS”
Among the questions raised during the panel discussion during
International Law Week were issues related to substantive content of
undergraduate (as well as non-law school graduate) courses and the
pedagogical methods. As discussed above, the substance of law courses at
West Point, while supportive of the mission, is left to the course director’s
discretion. This allows for a great deal of customization based on the
background of the cadets enrolled and the predilections of the instructor.
75.
While it is as difficult to arrive at an objective definition of militancy, as it is to define
terrorism, the Author suggests that a functional definition might suffice. Those whose methods are in
violation of the laws of armed conflict might be defined as terrorists. Militancy merely describes the use
of violence and force to achieve their ends.
76.
See generally Reza Aslan, The War for Islam, BOSTON GLOBE (Sep. 10, 2006),
http://www.boston.com/news/globe/ideas/articles/2006/09/10/the_war_for_islam/ (last visited Jan. 29,
2014).
77.
Comments are reported through the USMA Course End Feedback Report—AY2013 (on
file with Author).
78.
Id.
79.
Id.
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That goes for both the course materials chosen and the pedagogical
methods employed.
Since the cadets taking this course tend to have no prior law classes
(although some were taking law classes contemporaneously with
Comparative Law), the use of a traditional law school casebook was
displaced by a more general descriptive text complimented with articles. In
choosing those articles, practical pieces were preferred over theoretical
ones, but theory was not entirely eschewed. Striking the right balance,
which is particularly important for undergraduates, is critical. This required
the juggling of some reading assignments, since suitable articles were
substituted for those that the students found to be impenetrable.
It should be clear that law is a necessary part of a military officer’s
education, and West Point provides that component through its Law
Department’s core and elective classes. It is also important to understand
that an officer, especially one who is likely to be deployed to a combat
setting, must have carefully honed critical thinking skills to allow for rapid
decision making. A high level of critical thinking is essential in making
decisions based on rules that can have life-or-death consequences.
Imagine the consequences of applying the law of armed conflict
regarding distinction in an urban battlefield. Split-second application of the
use of deadly force is required to ensure the protection of an officer’s
soldiers while engaging an enemy. Then the next vehicle turning into the
street or the next person emerging from a doorway is either an enemy
combatant or an innocent civilian, who are not in uniform. Having in mind
that even innocent civilians carry firearms. Now try to apply the law.
Certainly the officer who is known as the father of West Point,
Colonel Sylvanus Thayer, understood this need for critical thinking when
he was appointed superintendent in 1817.80 His “Thayer Method” was a
pedagogy that made cadets responsible for their own learning, by requiring
advance preparation, and using classroom time for active learning.81 This
method of teaching closely resembles the Socratic Method, which is used
primarily in law schools, but is also a staple of law teaching of West Point
undergraduates. The “Thayer Method” develops critical thinking skills, and
in the Author’s experience, cadets are able to thrive in that atmosphere.
The upshot is that West Point cadets, who will be the future leaders of
the United States Military, need to learn and understand law. They also
need to understand how to apply it. This is something that Washington,
80.
POUGHKEEPSIE JOURNAL, supra note 23, at 103.
81.
See generally Amy E. Shell, The Thayer Method of Instruction at the United States
Military Academy: A Modest History and a Modern Personal Account, in 12 PRIMUS: PROBLEMS,
RESOURCES, AND ISSUES IN MATHEMATICS UNDERGRADUATE STUDIES 1, 27–38 (2002).
2014]
Goldstein
275
Jefferson, and Thayer understood and evolved into a cornerstone of the
education of officership. While these courses are not geared to law schools,
they are taught at a very high level that would be a rewarding and suitable
challenge to most law students.
RECENT DEVELOPMENTS IN EUROPEAN UNION
CRISIS MANAGEMENT OPERATIONS
Gilles Marhic*
I.
II.
III.
IV.
V.
INTRODUCTION ................................................................................ 277
INSTITUTIONAL AND LEGAL PARAMETERS RELEVANT FOR
CRISIS MANAGEMENT OPERATIONS ............................................... 279
THE RAPID DEPLOYMENT OF CIVILIAN CSDP MISSIONS ............... 280
THE PARTICIPATION OF THIRD STATES IN EU CRISIS
MANAGEMENT OPERATIONS ........................................................... 281
CONCLUSION ................................................................................... 283
I. INTRODUCTION
The European Union (EU) has the possibility to plan, establish, and
launch crisis management operations on the basis of Articles 42(4) and
43(2) of the Treaty on European Union (TEU).1 The EU currently deploys
five military operations in Bosnia and Herzegovina, Somalia, Mali, Central
African Republic, and off the coast of Somalia, with a total of around three
thousand persons,2 and ten civilian missions in Libya, Niger, Djibouti,
Democratic Republic of Congo, Palestinian Territories, Afghanistan,
*
Gilles Marhic is the Head of the Legal Section in the Delegation of the European Union to
the United Nations in New York. The opinions expressed in this paper are personal to the author and do
not necessarily reflect the views of the European External Action Service (EEAS).
1.
Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the
European Community, Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter Treaty of Lisbon]. Article 42(4)
of the Treaty of Lisbon provides:
Decisions relating to the common security and defense policy, including those
initiating a mission as referred to in this Article, shall be adopted by the Council
[of the European Union] acting unanimously on a proposal from the High
Representative of the Union for Foreign Affairs and Security Policy or an
initiative from a Member State. The High Representative may propose the use of
both national resources and Union instruments, together with the Commission
where appropriate.
Article 43(2) of the Treaty of Lisbon provides:
The Council shall adopt decisions relating to the tasks referred to in paragraph 1,
defining their objectives and scope and the general conditions for their
implementation. The High Representative of the Union for Foreign Affairs and
Security Policy, acting under the authority of the Council and in close and
constant contact with the Political and Security Committee, shall ensure
coordination of the civilian and military aspects of such tasks.
2.
Ongoing Mission and Operations, EUROPEAN UNION EXTERNAL
http://eeas.europa.eu/csdp/missions-and-operations/index_en.htm (last visited May 5, 2014).
ACTION
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Kosovo, and Georgia.3 The total amount of personnel for these ten civilian
missions is around 4000.4
In her report on the Common Security and Defence Policy (CSDP)
issued on October 15, 2013, the European Union High Representative, Mrs.
Catherine Ashton, noted that the European Council will offer the
opportunity to provide strategic direction for the further development of
CSDP.5 The report also mentions some important achievements, two of
which deserve particular attention, namely 1) The rapid deployment of
civilian CSDP Missions and 2) The participation of non-EU States in EU
crisis management operations.6
3.
Id.
4.
Common Security and Defence Policy: EU Integrated Border Assistance Mission in Libya,
EUROPEAN UNION EXTERNAL ACTION, available at http://www.eeas.europa.eu/csdp/missions-andoperations/eubam-libya/pdf/factsheet_eubam_libya_en.pdf (last visited May 6, 2014); Common Security and
Defence Policy: EUCAP Sahel Niger Civilian Mission, EUROPEAN UNION EXTERNAL ACTION, available at
http://www.eeas.europa.eu/csdp/missions-and-operations/eucap-sahel-niger/pdf/factsheet_eucap_sahel_niger_
en.pdf (last visited May 6, 2014); Common Security and Defence Policy: EU Security Sector Reform Advisory
Mission to the DR Congo Armed Forces (EUSEC RD Congo), EUROPEAN UNION EXTERNAL ACTION,
available
at
http://www.eeas.europa.eu/csdp/missions-and-operations/eusec-rd-congo/pdf/factsheet_
eusec_rd_congo_en.pdf (last visited May 6, 2014); Common Security and Defence Policy: EUPOL COPPS—
Police and Rule of Law Mission for the Palestinian Territories, EUROPEAN UNION EXTERNAL ACTION,
available at http://www.eeas.europa.eu/csdp/missions-and-operations/eupol-copps-palestinian-territories/pdf/
factsheet_eupol_copps_en.pdf (last visited May 6, 2014); Common Security and Defence Policy: EU Police
Mission in Afghanistan—EUPOL Afghanistan, EUROPEAN UNION EXTERNAL ACTION, available at
http://www.eeas.europa.eu/csdp/missions-and-operations/eupol-afghanistan/pdf/factsheet_eupol_afghanistan
_en.pdf (last visited May 6, 2014); Common Security and Defence Policy: EULEX KOSOVO EU Rule of Law
Mission in Kosovo, EUROPEAN UNION EXTERNAL ACTION, available at http://www.eeas.europa.
eu/csdp/missions-and-operations/eulex-kosovo/pdf/factsheet_eulex_kosovo_en.pdf (last visited May 6, 2014);
Common Security and Defence Policy: EUMM Georgia, EUROPEAN UNION EXTERNAL ACTION, available at
http://www.eeas.europa.eu/csdp/missions-and-operations/eumm-georgia/pdf/facsheet_eumm_georgia_en.pdf
(last visited May 6, 2014); Common Security and Defense Policy: EUCAP Nestor (Regional Maritime
Capacity Building Mission in the Horn of Africa and the Western Indian Ocean), EUROPEAN UNION
EXTERNAL ACTION, available at, http://eeas.europa.eu/csdp/missions-and-operations/eucap-nestor/documents/
factsheet_eucap_nestor_en.pdf (last visited May 6, 2014).
5.
Final Report by the High Representative/Head of the EDA on the Common Security and
Defence Policy, EUROPEAN UNION EXTERNAL ACTION (Oct. 15, 2013), available at
http://eeas.europa.eu/statements/docs/2013/131015_02_en.pdf (last visited May 6, 2014) [hereinafter
Final Report by the High Representative/Head of the EDA].
6.
Id.
2014]
Marhic
279
II. INSTITUTIONAL AND LEGAL PARAMETERS RELEVANT FOR CRISIS
MANAGEMENT OPERATIONS
Before entering into these considerations, it is necessary to recall a few
institutional and legal parameters relevant for Crisis Management
Operations. With the entry into force of the Lisbon Treaty on December 1,
2009, there is a clear orientation towards a comprehensive approach to
conflict prevention, crisis management, and stabilization in accordance with
Article 21, Paragraph 3 of the TEU; the TEU provides that, “[t]he Union
shall ensure consistency between the different areas of its external action
and between these and its other policies.”7 In addition, this comprehensive
approach also appears in the fact that the High Representative is in
accordance with Article 18, Paragraph 4 of the TEU, which ensures the
consistency of the Union’s external action.8
More practically, the European External Action Service (EEAS),
established by a Council Decision of July 26, 2010, supports the High
Representative in the areas of common foreign and security policy,
including the CSDP; in her capacity as President of the Foreign Affairs
Council; and finally, in her capacity as Vice President of the European
Commission.9 This means in particular that the EEAS supervises the
political aspects of EU external action, the strategic steps for EU external
assistance financial instruments, and EU crisis management operations all
at the same time.
According to the Review of the Balance of Competences between the
United Kingdom and the European Union Foreign Policy issued in July
2013, “the EU has made progress towards developing a more
comprehensive approach.”10 Through the consistent exercise of the full
spectrum of its competences, in particular with diplomatic development,
and defense-related measures, the EU has improved the impact of its
actions. The comprehensive strategy for the Horn of Africa, which
encompasses three CSDP missions, EUNAVFOR Atlanta, the EU training
mission for Somalia, and a regional maritime capacity-building mission,
illustrate this kind of approach.
7.
Treaty of Lisbon art. 21(3).
8.
Id. art. 18(4).
9.
See Council Decision 2010/427/EU, Establishing the Organisation and Functioning of the
European
External
Action
Service,
2010
O.J.
(L201)
30,
available
at
http://www.eeas.europa.eu/background/docs/eeas_decision_en.pdf (last visited Feb. 21, 2014).
10.
FOREIGN AND COMMONWEALTH OFFICE, REVIEW OF THE BALANCES OF COMPETENCES
BETWEEN THE UNITED KINGDOM AND THE EUROPEAN UNION: FOREIGN POLICY, 2013, at 76 (U.K.),
available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/227437/
2901086_Foreign_Policy_acc.pdf (last visited Feb. 20, 2014).
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In its conclusions of the December 17, 2013 review on the EEAS, the
Council of the European Union stated:
[It] recognises the need to further strengthen integrated
approaches in CSDP and in crisis management within the EEAS,
aiming, notably through ensuring a clear chain of command, at
improving the effectiveness and efficiency of CSDP missions and
operations, as well as promoting civil-military synergies and
closer coordination with other policy departments of the EEAS,
while bearing in mind the specificities of the crisis management
structures. Work on further streamlining planning and decision
making procedures related to CSDP missions and operations
should continue, in cooperation with Member States, and be
guided by the November 2013 Council conclusions on CSDP and
11
the December 2013 European Council conclusions.
It is important to remember that the first CSDP missions were
established in 2003, over ten years ago. Since then, planning structures
have been set up, funding mechanisms devised, and command and control
arrangements implemented.
Rapid deployment and Third States’
participation indeed constitute two important aspects of those efforts.
III. THE RAPID DEPLOYMENT OF CIVILIAN CSDP MISSIONS
Why only address civilian missions in this article when it comes to
rapid deployment? Because the EU military operations are manned by
formed, well-structured entities deployed with their equipment and
logistics, which certainly represents a facilitating element for rapid
deployment. It may be different for civilian missions, however, when
individuals are oftentimes deployed and operational expenditure is charged
to the Union budget in accordance with Article 41 of the TEU.12
In the case of the EU Mission in Georgia, which was established in
2008, the EU planned the Mission and deployed more than 200 monitors in
11.
Council of the European Union, Council Conclusions on the EEAS Review, Doc. ST 17973
2013 INIT of 17 December 2013, ¶ 3, available at http://www.consilium.europa.eu/uedocs/
cms_data/docs/pressdata/EN/genaff/140141.pdf (last visited May 6, 2014).
12.
Treaty of Lisbon art. 41(2), providing specifically:
Operating expenditure to which the implementation of this Chapter [containing
specific provisions on the common foreign and security policy] gives rise shall
also be charged to the Union budget, except for such expenditure arising from
operations having military or defense implications and cases where the Council
acting unanimously decides otherwise.
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two weeks coming from twenty-two Member States.13 This was possible
due to the outstanding efforts by the EU Member States in ensuring the
availability of their personnel. Such a swift deployment for civilian CSDP
Missions has not always been achievable, and therefore it was necessary to
devise new solutions in order to alleviate those difficulties.
A permanent CSDP warehouse was established in November 2012 and
it became operational in June 2013.14 It has the capacity to store strategic
equipment primarily for the rapid deployment of 200 personnel within
thirty days of approval of the crisis management concept by the relevant
Council body.15 This warehouse was used for providing equipment to the
EU Mission in Libya.16
While the High Representative is responsible for the implementation
of the warehouse, it is for the European Commission to conclude a contract
with a warehouse operator selected in accordance with the EU procurement
procedures.17 This is a very substantial achievement. In the pre-Lisbon
treaty period, difficult discussions took place in certain Council preparatory
bodies on how to timely provide computers, armored cars, and bulletproof
jackets to our civilian missions. The situation has improved in this regard.
Furthermore, supplementary efforts have been made for revising our crisis
management procedures and procurement procedures in order to speed up
the deployment process.
IV. THE PARTICIPATION OF THIRD STATES IN EU
CRISIS MANAGEMENT OPERATIONS
Third States may be invited to participate in CSDP missions. This is
subject to case-by-case decisions by the Council in accordance with the
decision-making autonomy of the Union. This choice is, where relevant,
13.
European Security and Defence Policy: European Union Monitoring Mission (EUMM) in
Georgia (Oct. 16, 2008), http://consilium.europa.eu/uedocs/cmsUpload/081023-EUMM_in_Georgiaversion3_EN.pdf (last visited Feb. 20, 2014).
14.
See Council Decision 2012/698/CFSP, of 13 November 2012 on the Establishment of a
Warehouse for Civilian Crisis Management Missions, 2012 O.J. (L314) 25, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:314:FULL:EN:PDF (last visited May 6, 2014)
[hereinafter Council Decision 2012/698/CFSP]; Final Report by the High Representative/Head of the
EDA, supra note 5, at 10.
15.
Final Report by the High Representative/Head of the EDA, supra note 5, at 10 (According
to the European Union Crisis Management Procedures, “the crisis management concept (CMC), based
on advance planning, is the conceptual framework describing CSDP activity to address a particular
crisis within the EU comprehensive approach. The CMC defines the political strategic objectives for
CSDP engagement, and provides CSDP option(s) to meet the EU objectives.”).
16.
Id.
17.
Council Decision 2012/698/CFSP, supra note 14, arts. 2–3.
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reflected in the decision establishing the Mission. Such decisions provide
that the Third States concerned will conclude an agreement with the Union
to determine the conditions of their participation, thereby associating
themselves with the said decisions.
For instance, Article 10 of the above-mentioned Council Decision of
May 22, 2013, establishing the EU Integrated Border Management
Assistance Mission in Libya, provides that Third States contributing to this
Mission shall have the same day-to-day management rights and obligations
as the EU Member States taking part in it.18 For certain Third States, it has
been deemed appropriate for the Union to create the framework for
permanent participation agreements. This has the effect of not allowing for
automatic participation of the concerned Third State to every EU CSDP
mission, but provides a permanent legal framework for such participation,
should the Council so decide. This reduces the administrative burden on
both sides, as well as the delays for deployment.
The Union has signed an increasing number of these Framework
Participation Agreements with Third States. Twelve are in force and two
more are ready for signature, one with Australia and the other with Bosnia
and Herzegovina.19 Negotiations are ongoing and have reached an
advanced stage with South Korea, Chile, and Georgia.20 For instance, in
the May 17, 2011 Framework Agreement between the United States and the
EU, Article 5, Paragraph 1 provides that the United States, “shall seek to
ensure, by means of specific instructions, that personnel made available as
part of its contribution to EU crisis management operations . . . undertake
their mission in a manner consistent with, and fully supportive of the
Council Decision” establishing a given operation.21 In turn, Article 6,
Paragraph 1 provides that, “during the period of deployment, the EU
Commander or Head of Mission shall exercise supervisory authority and
direct the activities of [United States] assigned personnel and units.”22
18.
Council Decision 2013/233/CFSP, of 22 May 2013 on the European Union Integrated
Border Management Assistance Mission in Libya (EUBAM Libya), 2013 O.J. (L 138) 15, 17, available
at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:138:0015:0018:EN:PDF (last
visited May 6, 2014).
19.
Final Report by the High Representative/Head of the EDA, supra note 5, at 6.
20.
Id.
21.
Council Decision 2011/318/CFSP, of 31 March 2011 on the Signing and Conclusion of the
Framework Agreement Between the United States of America and the European Union on the
Participation of the United States of America in European Union Crisis Management Operations, 2011
O.J. (L134) 1, 3, available at http://eur-lex.europa.eu/resource.html?uri=cellar:4084873e-e178-40109a83-962858d6c90c.0005.02/DOC_2&format=PDF (last visited May 6, 2014).
22.
Id.
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Marhic
283
V. CONCLUSION
To conclude, it is probably beneficial to add a few considerations on
the scope of the EU crisis management operations. For example Article 43
of the TEU explicitly mentions certain tasks that did not appear in Article
17 of the TEU before entry of the Lisbon Treaty: Joint disarmament
operations, military advice and assistance tasks, and post-conflict
stabilization.23 There is also a provision to the effect that these tasks may
contribute to the fight against terrorism.24 This does not mean from a legal
standpoint that the scope of CSDP actions is any broader under present
treaties. Before entry of the Lisbon Treaty, Article 17 of the TEU included
certain tasks, meaning that the list provided for in this article was not
limitative.
Similarly, Article 42, Paragraph 1 of the TEU provides the CSDP
missions may be established for conflict prevention purposes.25 This
explicit mention is new; however, CSDP was encompassing this conflict
prevention dimension before the entry of the Lisbon Treaty.
During recent years and within the framework of treaties, the EU has
deployed new types of CSDP missions dealing with implementation of
ceasefire agreements, aviation security strengthening, capacity building,
and the prevention and repression of acts of piracy. The EU extended its
expertise in these areas, and it appears that the EU Member States continue
to have the willingness to establish CSDP missions when they have added
value.
When it comes to improving these operations, the EU has to work with
principles such as its decision-making autonomy, the open nature of CSDP
operations, the respect for procedures, and the necessity to deploy swiftly.
The setting up of the warehouse, even if it appears as a modest
achievement, constitutes evidence that within EU institutional and legal
parameters, there is room for innovative solutions when it comes to
complex issues linked to the CSDP.
On December 19, 2013, the European Council, which consists of
Heads of State or Government of the EU Member States, together with its
President, and the President of the European Commission (the High
Representative taking part in the work of the European Council), adopted
important conclusions on CSDP.26 Those conclusions provide in particular
that:
23.
Treaty of Lisbon art. 43.
24.
Id.
25.
Id. art. 42.
26.
See generally Summary: 19 December 2013, Brussels—Part I ¶¶ 1–22 of the European
Council Conclusions on Common Security and Defence Policy (already adopted), available at
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The EU and its Member States need to be able to plan and deploy
the right civilian and military assets rapidly and effectively. The
European Council emphasizes the need to improve the EU rapid
response capabilities, including through more flexible and
deployable EU Battle groups as Member States so decide. The
financial aspects of EU missions and operations should be
rapidly examined, including in the context of the Athena
mechanism review, with a view to improving the system of their
financing, based on a report from the High Representative. The
European Council invites the Commission, the High
Representative and the Member States to ensure that the
procedures and rules for civilian missions enable the Union to be
more flexible and speed up the deployment of EU civilian
missions.27
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/140214.pdf (last visited May 6,
2014).
27.
Id. ¶ 8.
CONFLICT MINERALS AND INTERNATIONAL
BUSINESS: UNITED STATES AND
INTERNATIONAL RESPONSES
Ved P. Nanda*
I.
II.
III.
IV.
INTRODUCTION ................................................................................ 285
REQUIREMENTS FOR COMPANIES UNDER SECTION 1502 ............... 288
REQUIREMENTS UNDER THE SEC RULE ......................................... 290
SUBSEQUENT DEVELOPMENTS ........................................................ 295
A. Legal Challenge ...................................................................... 295
B. Other Developments ................................................................ 297
APPRAISAL ...................................................................................... 302
V.
I. INTRODUCTION
A recent headline read, “Blood on Your Handset: Is your Cellphone
Made with Conflict Minerals Mined in the Congo? The industry doesn’t
want you to know.”1 The message the headline purported to convey is
reminiscent of a similar concern a few years back with trade in “blood
diamonds,” or “clouded diamonds.”2 During that period, rebel movements
throughout the African continent used proceeds from such trade to finance
armed conflicts and undermine legitimate governments, with the major
trouble areas being the Democratic Republic of the Congo (DRC), Angola,
and Sierra Leone.3 This is an unfortunate illustration of “resource curses,”
a situation where in a poor country natural resource abundance creates the
problem of poor governance, corruption, and nepotism.4
As a result of growing awareness of this grave problem and public
pressures, attempts to find a solution led eventually to the Kimberley
*
Ved P. Nanda, John Evans University Professor, University of Denver; Thompson G.
March Professor of Law and Director, Ved Nanda Center for International and Comparative Law,
University of Denver Sturm College of Law. This is an adapted version of a presentation at the
American Branch of the International Law Association’s (ABILA) International Law Weekend at
Fordham Law School in New York, New York on Saturday, October 26, 2013.
1.
Ciara Torres-Spellisci, Blood on Your Handset: Is Your Cellphone Made with Conflict
Minerals Mined in the Congo? The Industry Doesn’t Want You to Know, SLATE.COM (Sept. 20, 2013),
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/conflict_minerals_from_the_congo
_is_your_cellphone_made_with_them.html (last visited Jan. 30, 2014).
2.
See Shannon K. Murphy, Clouded Diamonds: Without Binding Arbitration and More
Sophisticated Dispute Resolution Mechanisms, the Kimberley Process will Ultimately Fail in Ending
Conflicts Fueled By Blood Diamonds, 11 PEPP. DISP. RESOL. L.J. 207, 221–22 (2011).
3.
Id.
4.
Id.
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Process Certification Scheme (KPCS), adopted by thirty-nine diamondtrading countries in 20025 with implementation beginning in 2003.6 Under
the process, “conflict diamonds” are identified and excluded from the
legitimate trade.7 However, because of the voluntary nature of the KPCS—
with self-policing, inadequate monitoring, consensus decision-making, no
administrative structure, and no independent oversight—the results have
been mixed and the KPCS has faced severe criticism.8
For some time now, trade in “conflict minerals,” which are mined in
the DRC and adjoining countries in the Great Lakes region of Africa, have
also been fueling armed conflicts in the region. Consumer demand for cell
phones, laptops, appliances, and jewelry fuels this trade and triggers the
conflicts. Several civil society groups have been actively seeking effective
means to end trade in conflict minerals originating in this region as
proceeds from such trade are one of the key elements responsible for the
ongoing conflicts.9
In response, the U.S. Congress in July 2010, included conflict minerals
provisions in the Dodd-Frank Wall Street Reform and Consumer Protection
Act.10 In May of 2010, the U.S. State Department stated in a press release:
Minerals like tungsten, tin, tantalum and gold are used in a range
of industries, including electronics, jewelry and automotive.
Armed groups and military units in eastern DRC have used debt,
coercion and physical violence to force villagers to extract these
minerals from local mines. Proceeds from the illicit sale and
5.
Julie L. Fishman, Is Diamond Smuggling Forever? The Kimberley Process Certification
Scheme: The First Step Down the Long Road to Solving the Blood Diamond Trade Problem, 13 U.
MIAMI BUS. L. REV. 218, 224–25 (2005).
6.
Id.
7.
Kimberley Process Certification Scheme, KIMBERLEYPROCESS.COM, available at
http://www.kimberleyprocess.com/en/system/files/documents/KPCS%20Core%20Document.pdf (last
visited Feb. 17, 2014).
8.
See Murphy, supra note 2, at 221; see also Julie E. Nichols, A Conflict of Diamonds: The
Kimberley Process and Zimbabwe’s Marange Diamond Fields, 40 DENV. J. INT’L L. & POL’Y 648, 650
(2012), and Ian Smillie, Symposium, Blood Diamonds and Non-State Actors, 46 VAND. J. TRANSNAT’L
L. 1003, 1014 (2013).
9.
Breaking the Links Between Natural Resources and Conflict: The Case for EU
Regulation, GLOBALWITNESS.ORG (Sept. 2013), http://www.globalwitness.org/sites/default/files/library/
BreakingtheLinks_ENG.pdf (last visited Feb. 17, 2014) [hereinafter Breaking the Links]; THE ENOUGH
PROJECT TEAM AND GRASSROOTS RECONCILIATION GROUP, A COMPREHENSIVE APPROACH TO
CONGO’S CONFLICT MINERALS 1 (Apr. 2009), available at http://www.enoughproject.org/files/
Comprehensive-Approach.pdf (last visited Feb. 17, 2014); Conflict Minerals, ENOUGHPROJECT.ORG,
http://enoughproject.org/conflict-minerals (last visited Jan. 30, 2014).
10.
15 U.S.C. § 78m(p)(5) (2012).
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287
trade of these metals are used to perpetuate the cycle of conflict,
human trafficking physical and sexual violence and human rights
11
abuses.
After President Obama signed the Act into law, then-Secretary of State
Hillary Clinton commented that:
[The] measure . . . will require corporations to publicly disclose
what they are doing to ensure that their products don’t contain
these minerals. The DRC has formally expressed its support for
this law and has thanked both the executive and legislative
branches of our government. This is one of several steps we are
12
taking to stop this illicit and deadly trade.
Subsequently, the European Commission has been exploring the form
of its action on the conflict minerals issue.13 In September 2013, European
Trade Commissioner Karel De Gucht said that through “a successful . . .
initiative on responsible sourcing,” the European Union (EU) would seek
first to “[h]elp keep money out of the hands of rebel groups,” and second,
“[h]elp ensure that revenues from natural resources instead go to the
government, strengthening the rule of law and improving the provision of
vital services like health and education.”14
This paper primarily focuses on the United States effort, which
includes the Dodd-Frank Act and the Securities and Exchange
Commission’s (SEC) rule promulgated pursuant to the Act that imposes
certain disclosure requirements for companies that use conflict minerals
originating in DRC and the adjoining countries.15 Part II discusses the
11.
Industry Representatives Discuss Conflict Minerals at the U.S. Department of State, U.S.
DEP’T OF STATE (May 14, 2010), http://www.state.gov/r/pa/prs/ps/2010/05/141880.htm (last visited
Feb. 20, 2014).
12.
U.S. Sec’y of State Hillary Clinton, U.S. Financial Bill Will Require Disclosure on
Conflict Minerals, CONGOPLANET.COM (July 22, 2010), http://www.congoplanet.com/news/1695/usfinancial-bill-disclosure-conflict-minerals-hillary-clinton-barack-obama-goma.jsp (last visited Feb. 20,
2014).
13.
Katherine Llewellyn & Dynda A. Thomas, European Union Trade Commissioner Hints at
Broad Approach of EU Conflict Minerals Strategy, LEXOLOGY.COM (Sept. 6, 2013),
http://www.lexology.com/library/detail.aspx?g=d1de7611-18a7-46aa-b48e-a75820d7094c (last visited
Feb. 20, 2014).
14.
Karel De Gucht, European Trade Commissioner, Address at the Hearing of the
Development Committee of the European Parliament/Brussels: Conflict Minerals: The Role of Trade
(Sept. 17, 2013), available at http://trade.ec.europa.eu/doclib/docs/2013/october/tradoc_151848.pdf (last
visited Feb. 20, 2014).
15.
Conflict Minerals, 77 Fed. Reg. 56,274 (Sept. 12, 2012) (to be codified at 17 C.F.R. pts.
240 and 249b); David J. Levine & Raymond Paretzky, SEC Proposes “Conflict Minerals” Disclosure
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pertinent provisions of the Dodd-Frank Act and Part III discusses the Final
Rule. Part IV studies the subsequent developments, including the legal
challenge to parts of the Rule by the National Association of
Manufacturers, the Chamber of Commerce, and the Business Roundtable,
who claim those provisions to be “arbitrary and capricious” under the
Administrative Procedure Act (APA).16 They also mounted a constitutional
challenge to both the Dodd-Frank Act Section 1502 and the Rule on First
Amendment grounds.17 The concluding section, Part V, provides an
appraisal.
II. REQUIREMENTS FOR COMPANIES UNDER SECTION 1502
Amending Section 13 of the Securities Exchange Act of 1934 (the
“Exchange Act”),18 Section 1502 of the Dodd-Frank Act increases
mandatory disclosure requirements relating to conflict minerals originating
from the DRC.19 Senator Dick Durbin stated during the debate on the Act
that the new disclosure scheme was “a reasonable step to shed some light
on this literally life-and-death issue,” and that it would “encourage
companies using these minerals to source them responsibly.”20 Congress
expressed its belief that “the exploitation and trade of conflict minerals
originating in the [DRC] . . . is helping to finance conflict characterized by
extreme levels of violence in the eastern [DRC], particularly sexual and
gender-based violence, and [is] contributing to an emergency humanitarian
situation . . . .”21 The statute requires the SEC to adopt regulations
mandating companies that use conflict minerals, which are “necessary to
Rules to Implement Dodd-Frank Provisions, MCDERMOTT WILL & EMERY (Jan. 13, 2011),
http://www.mwe.com/SEC-Proposes-Conflict-Minerals-Disclosure-Rules-to-Implement-Dodd-FrankProvisions-01-13-2011/?PublicationTypes=d9093adb-e95d-4f19-819a-f0bb5170ab6d (last visited Feb.
20, 2014).
16.
Delcy P. Sweet, United States: SEC Conflict Mineral Rule Upheld By The Federal
District Court, MONDAQ.COM (Aug. 5, 2013), http://www.mondaq.com/unitedstates/x/
256164/Securities/SEC+Conflict+Minerals+Rule+Upheld+by+the+Federal+District+Court (last visited
Feb. 20, 2014).
17.
Id.
18.
15 U.S.C. § 78m(p) (2012).
19.
Id.
20.
Dick Durbin, Restoring American Financial Stability Act of 2010, VOTESMART.ORG (May
17, 2010), http://votesmart.org/public-statement/508952/restoring-american-finacial-stability-act-of2010#.Uu1AosKA0Zx (last visited Feb. 20, 2014).
21.
Melvin Ayogu & Zenia Lewis, Opinion, Conflict Minerals: An Assessment of the DoddFrank Act, BROOKINGS.EDU (Oct. 3, 2011), http://www.brookings.edu/research/opinions/2011/10/03conflict-minerals-ayogu (last visited Feb. 20, 2014).
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the functionality or production of a product,”22 to disclose to the
Commission whether those minerals originated in the DRC or an adjoining
country23 such as: Angola, Burundi, Central African Republic, Republic of
the Congo, Rwanda, South Sudan, Tanzania, Uganda, and Zambia.24
Both the Dodd-Frank Act and the Final Rule define conflict minerals
as “columbite-tantalite (coltan), cassiterite, gold, wolframite, or their
derivatives,” along with any other mineral or derivative that the Secretary
of State determines is “financing conflict” in the DRC.25 “The derivatives
most commonly extracted from these conflict minerals are tantalum, tin,
gold and tungsten.”26 If such conflict minerals did originate in the DRC or
an adjoining country, then companies must also submit an additional report
to the Commission containing a “description of the measures taken . . . to
exercise due diligence on the source and chain of custody of such
minerals,” and “a description of the products manufactured or contracted to
be manufactured that are not DRC conflict free.”27
The statute defines “DRC conflict free” as a product that “does not
contain conflict minerals that directly or indirectly finance or benefit armed
groups in the [DRC] or an adjoining country.”28 The report must also
describe “the facilities used to process the conflict minerals, the country of
origin of the conflict minerals, and [the] efforts to determine the mine or
location of origin with the greatest possible specificity.”29 An additional
requirement of the statute is that the company making any disclosure or
reports to the SEC under these provisions must make such disclosures or
reports publicly available on the company’s own website.30
In Section 1502, the statute “also created responsibilities for other
federal agencies.”31 To illustrate, the Comptroller General is required to
submit regular reports to Congress assessing “the rate of sexual and genderbased violence in war-torn areas in the DRC and adjoining countries.”32
22.
15 U.S.C. § 78m(p)(2)(B) (2012).
23.
Id. § 78m(p)(1)(A).
24.
Id.
25.
H.R. 4173, 111th Cong. § 1502(c)(4) (2010).
(Sept.
2013),
26.
The
Conflicts
Minerals
Rule,
AM. COATINGS ASS’N
http://www.paint.org/component/docman/cat_view/53-backgrounder.html?start=10 (last visited Feb. 20,
2014).
27.
15 U.S.C. § 78m(p)(1)(A)(i)–(ii) (2012).
28.
Id. § 78m(p)(1)(D).
29.
Id. § 78m(p)(1)(A)(ii).
30.
Id. § 78m(p)(1)(E).
31.
Nat’l Ass’n of Mfrs. v. S.E.C., 956 F. Supp. 2d 43, 47 (D.C. Cir. 2013).
32.
H.R. 4173, 111th Cong. § 1502(d)(1) (2010).
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The Secretary of State is also required to “submit to the appropriate
congressional committees a strategy to assess the linkages between human
rights abuses, armed groups, mining of conflict minerals, and commercial
products.”33 The statute also requires the Secretary to produce and make
publicly available “a map of mineral-rich zones, trade routes, and areas
under the control of armed groups in the [DRC] and adjoining countries.”34
III. REQUIREMENTS UNDER THE SEC RULE
Companies are required to follow three overall steps to comply with
the Section 1502 requirements. Step one requires the company to
determine whether it is covered by the Rule’s requirements.35 The Rule
applies to issuers that “file reports with the Commission under Section
13(a) or Section 15(c) of the Exchange Act,”36 and for which conflict
minerals are necessary to the functionality or production of a product
manufactured or contracted by that issuer to be manufactured.37 The Final
Rule clarifies that for a company to be considered as “contracting to
manufacture” a product, it should have some actual influence over the
manufacturing of that product.38
The SEC gave examples as to when an issuer would not be viewed as
“contracting to manufacture a product”:
[I]f the company’s actions involve no more than . . . [s]pecifying
or negotiating contractual terms . . . that do not directly relate to
the manufacturing of the product, such as training or technical
support, price, insurance, indemnity, intellectual property rights,
dispute resolution, or other like terms . . . ; [a]ffixing its brand,
marks, logo, or label to a generic product manufactured by a third
party; . . . [s]ervicing, maintaining, or repairing a product
39
manufactured by a third party.
The Commission clarified the reason for this approach is that it avoids
sweeping a pure retailer into the Rule’s scope because companies that
simply offer a “generic product under [its] own name or a separate brand
33.
Id. § 1502(c)(1).
34.
Id. § 1502(c)(2)(A)(i).
35.
See Conflict Minerals, 77 Fed. Reg. at 56,274.
36.
Id. at 56,287.
37.
Id. at 56,279.
38.
Id. at 56,291.
39.
Id.
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Nanda
291
name” generally do not exert a sufficient degree of influence over the
manufacturing process.40
Also, despite many comments asking the Commission to adopt a de
minimis exception to the Rule’s coverage, the Commission declined to
adopt any type of categorical exception.41 The SEC concluded that a de
minimis exception would be contrary to the Rule’s purpose because the
standard “focuses on whether the conflict mineral is ‘necessary’ to a
product’s functionality or production,” rather than “the amount of a conflict
mineral contained in the product.”42 It should be noted that the
Commission did not define when a conflict mineral is “necessary” to the
functionality or production of a product in the proposed rule.
Issuers subject to the conflict minerals rule must then conduct a
“reasonable country of origin inquiry.”43 The inquiry has to be “reasonably
designed to determine whether any of its conflict minerals originated in the
Covered Countries or are from recycled or scrap sources, and perform[ed]
in good faith.”44 The Commission explained that it would “view an issuer
as satisfying the reasonable country of origin inquiry standard if it seeks
and obtains reasonably reliable representations . . . directly from that
facility or indirectly through the issuer’s immediate suppliers . . . .”45
Thus, the issuer must “[indicate] the facility at which its conflict
minerals were processed and demonstrat[e] that those conflict minerals did
not originate in the Covered Countries or c[o]me from recycled or scrap
sources.”46 As to the reasonable country of origin inquiry, the Commission
clarified that such inquiry “is consistent with the supplier engagement
approach in the [Organisation for Economic Co-operation and
Development] OECD Guidance where issuers use a range of tools and
methods to engage with their suppliers. The results of the inquiry may or
may not trigger due diligence.”47 The OECD Due Diligence Guidance for
Reasonable Supply Chains of Minerals from Conflict-Affected and HighRisk Areas48 will be discussed later. The Commission expects issuers to be
40.
See Conflict Minerals, 77 Fed. Reg. at 56,290.
41.
See id. at 56,295.
42.
Id. at 56,298.
43.
Id. at 56,299.
44.
Id. at 56,280.
45.
See Conflict Minerals, 77 Red. Reg. at 56,312.
46.
Id.
47.
Id.
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, OECD DUE
DILIGENCE GUIDANCE FOR REASONABLE SUPPLY CHAINS OF MINERALS FROM CONFLICT-AFFECTED
AND HIGH-RISK AREAS 1 (2013), available at http://www.oecd.org/daf/inv/mne/GuidanceEdition2.pdf
48.
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aware of the “warning signs” and “red flags,” which may suggest that their
minerals originated in the Covered Countries, or otherwise cast doubt on
the source of their minerals.49 Through such an inquiry, if an issuer:
[K]nows that its conflict minerals did not originate in the
Covered Countries or knows that they came from recycled or
scrap sources, or the issuer has no reason to believe its conflict
minerals may have originated in the Covered Countries, or the
issuer reasonably believes its conflict minerals came from
recycled or scrap sources, then in all such cases the issuer must
disclose its determination and describe briefly in the body Form
SD, the reasonable country of origin inquiry it undertook and the
50
results of the inquiry.
On the other hand, if a company knows or has reason to believe that
the minerals “may have originated in the Covered Countries and may not
have come from recycled or scrap sources” then the issuer must proceed to
the third step of the Rule.51
It is then that the issuer must perform “due diligence” on the source
and supply chain of its minerals and deliver a Conflict Minerals Report
(CMR).52 The issuer is required “to use a nationally or internationally
recognized due diligence framework, if such a framework is available for
the specific conflict mineral.”53 According to the Commission, the OECD
Due Diligence Guidance satisfies its criteria and “may be used as a
framework for purposes of satisfying the final rule’s requirement that an
issuer exercise due diligence in determining the source and chain of custody
of its conflict minerals.”54 Also, as a “critical component of due diligence,”
an independent, “private sector audit is required.”55 The audit is designed
to ensure that the issuer’s due diligence “is in conformity with . . . [a]
nationally or internationally recognized due diligence framework” and that
the issuer’s actual due diligence efforts comport with the due diligence
approach, as described in its report.56
(last visited Feb. 20, 2014) [hereinafter OECD DUE DILIGENCE GUIDANCE] (addressing supply chain
management for “tin, tantalum, tungsten, their ores, and mineral derivatives, and gold”).
49.
Conflict Minerals, 77 Red. Reg. at 56,313.
50.
Id. at 56,359.
51.
Id. at 56,281.
52.
Id.
53.
Id.
54.
See Conflict Minerals, 77 Red. Reg. at 56,326.
55.
Id. at 56,320.
56.
Id. at 56,328.
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If the issuer’s due diligence shows that its minerals did originate in the
Covered Countries and did not come from recycled or scrap sources, or if
the issuer is unable to determine the source of its conflict minerals through
due diligence, the issuer must prepare and submit a CMR to the SEC.57
However, following due diligence, if an “issuer determines that its conflict
minerals did not originate in the Covered Countries or came from recycled
or scrap sources, the issuer is not required to submit a [CMR]” but the
issuer must still prepare and submit a Form SD to the Commission
describing the scope and results of its due diligence efforts.58
The CMR must include a description of the issuer’s products that
“have not been found to be ‘DRC conflict free,’”59 and must include “a
description of the measures the issuer has taken to exercise due diligence on
the source and chain of custody of” its conflict minerals, which must be
accompanied by “a certified independent private sector audit.”60 Also, if
the company’s products cannot be identified as “DRC conflict free,” the
Report must provide “a description of the facilities used to process those
conflict minerals, the country of origin of those conflict minerals, and the
efforts to determine the mine or location of origin with the greatest possible
specificity.”61 The Commission also authorized a temporary transition
period of two years for those companies unable to determine the origin of
their conflict minerals, which are to be described as those minerals as
“DRC conflict undeterminable,” rather than as having not been found to be
‘DRC’ conflict free.62 Smaller companies are given a temporary transition
period of four years.63
Companies are not required to place any type of label or disclosure on
products, although a copy of the CMR must be publicly posted on the
company’s website.64 The Final Rule became effective on November 13,
2012, and the first reports and disclosures are due to be filed with the
Commission by May 31, 2014.65 OECD’s Due Diligence Guidance
provides guidelines for companies that build on the general due diligence
principle and supply chains provisions contained in the OECD Guidelines
57.
See id. at 56,345.
58.
Id. at 56,315.
59.
See Conflict Minerals, 77 Red. Reg. at 56,360.
60.
Id. at 56,320.
61.
Id.
62.
Id. at 56,322.
63.
Id. at 56,323.
64.
See Conflict Minerals, 77 Red. Reg. at 56,333.
65.
See id.
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for Multinational Enterprises.66 As a multi-stakeholder initiative, the Due
Diligence Guidance, which involved the OECD, the United Nations,
governments of the Great Lakes region of Africa, the business community,
and civil society representatives, provides recommendations to companies
operating in or sourcing minerals from conflict-affected and high-risk areas
that is designed to help them avoid contributing to the conflicts fueled by
natural resources.67
Due diligence processes for supply chains of minerals must be
consistent with relevant international standards and applicable law.68 Under
the Due Diligence Guidance, the “nature and extent of due diligence that is
appropriate will depend on individual circumstances and be affected by
factors such as the size of the enterprise, the location of the activities, the
situation in a particular country, [and] the sector and nature of the products
or services involved.”69 The Due Diligence Guidance consists of a fivestep framework for risk-based due diligence in supply chains of minerals
from conflict affected and high-risk areas:
1)
2)
3)
4)
5)
Establish strong company management systems;
Identify and assess risk in the supply chain;
Design and implement a strategy to respond to identified
risks;
Carry out independent third-party audit of supply chain due
diligence at identified points in the supply chain; and
Report on supply chain due diligence.70
The Due Diligence Guidance recommends a model mineral supply
chain policy, which provides a common set of clear expectations on
responsible sourcing and risk management strategies in order to respond to
identified risks that contribute to conflict or serious human rights abuses by
sourcing practices.71 It suggests measures for risk mitigation and indicators
for measuring improvement.72 It also provides a separate supplement on
tin, tantalum, and tungsten.73
66.
Lahra Liberti, OECD 50th Anniversary: The Updated OECD Guidelines for Multinational
Enterprises and the New OECD Recommendation on Due Diligence Guidance for Conflict-Free
Minerals Supply Chains, 13 BUS. L. INT’L 35, 35–36 (2012).
67.
OECD DUE DILIGENCE GUIDANCE, supra note 48, at 3, 9.
68.
See id. at 66–68.
69.
Id. at 15.
70.
Id. at 17–19.
71.
Id. at 20.
72.
OECD DUE DILIGENCE GUIDANCE, supra note 48, at 25.
73.
Id. at 31–34.
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IV. SUBSEQUENT DEVELOPMENTS
A.
Legal Challenge
In Nat’l Ass’n of Mfrs. v. S.E.C.,74 the National Association of
Manufacturers, joined by the Chamber of Commerce and the Business
Roundtable, challenged several aspects of the SEC’s Final Rule, claiming
that the Commission had ignored its obligations under the Exchange Act in
issuing the Rule and that the Commission’s rule-making was arbitrary and
capricious under the APA.75 They also challenged the Final Rule, as well
as Dodd-Frank, Section 1502 on constitutional grounds, arguing that the
publication of disclosures on the companies’ websites, required by both the
SEC and Congress, compel speech in violation of the First Amendment.76
The District Court rejected both these challenges, upholding the Final Rule
implementing Section 1502.77
The Court conducted a detailed and thorough analysis, separately
addressing the plaintiffs’ two claims. Rejecting the challenge to the SEC’s
cost-benefits analysis, the Court commented on the benefits aspects:
[U]pon review of the record, the Court is convinced that the
Commission appropriately considered the various factors that
Sections 3(f) and 23(a)(2) of the Exchange Act actually require.
No statutory directive obligated the Commission to reevaluate
and independently confirm that the Final Rule would actually
achieve the humanitarian benefits Congress intended. Rather, the
SEC appropriately deferred to Congress’s determination on this
point, and its conclusion was not arbitrary, capricious, or contrary
78
to law . . . .
On the SEC’s cost analysis, the Court said that “the Commission
weighed comments received from the various parties and exercised its
discretion in concluding which figures were most appropriate . . . the Court
cannot say that the SEC acted arbitrarily or capriciously in reaching this
particular estimate.”79 The Court rejected the plaintiffs’ argument that the
Final Rule should have included a de minimis clause exempting companies
using small amounts of conflict minerals from reporting under the law,
74.
See Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 46.
75.
Id. at 54.
76.
Id.
77.
Id.
78.
Id. at 59.
79.
Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 61.
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stating that given the SEC’s “broader conclusion” that conflict minerals are
often used in minute amounts, the SEC believed that any type of categorical
de minimis exception had the potential to swallow the rule and would be
inappropriate; this analysis was sufficient to satisfy the Commission’s
obligations under the APA.80
Thus, the Court concluded, “the
Commission’s choice not to include a de minimis exception in the Final
Rule was the product of reasoned decision-making, and the Court finds no
basis under the APA to subjugate the Commission’s prerogative on this
point.”81
Rejecting the plaintiffs’ challenge to the Final Rule’s “reasonable
country of origin inquiry,” the Court concluded the SEC’s adoption of this
rule “is based on a reasonable and permissible construction of Section 1502,
and is not otherwise arbitrary or capricious in contravention of the APA.”82
The Court also upheld the Commission’s extension of the Final Rule to
companies that “contract to manufacture” products with necessary conflict
minerals, rather than applying it to only those issuers or companies that
themselves manufacture such products, as it found the SEC’s decision to be
“a perfectly permissible construction of Section 1502.”83 Similarly, the
Court upheld the Commission’s adoption of a different phase-in period of
four years for small companies, declining “to substitute its judgment on this
question for the Commission’s.”84
Finally, on the plaintiffs’ separate constitutional challenge that the
disclosure requirements under the Final Rule and Dodd-Frank Section,
Section 1502 “improperly compel ‘burdensome and stigmatizing speech’ in
violation of the First Amendment,” the Court found that the disclosure
scheme “directly and materially” advanced Congress’s interest in
promoting peace and security in the DRC and the adjoining countries, and
rejected the challenge.85 The plaintiffs appealed the Court’s decision, and
oral arguments were scheduled for January 7, 2014.86 A dozen current and
former members of Congress are among those who submitted an amicus
brief in support of the decision.87 Acknowledging that the implementation
80.
Id. at 62.
81.
Id. at 66.
82.
Id. at 70.
83.
Id. at 72.
84.
Nat’l Ass’n of Mfrs., 956 F. Supp. 2d at 73.
85.
Id.
86.
Reply Brief for Petitioner, at 1, Nat’l Ass’n of Mfrs. v. S.E.C., 956 F. Supp. 2d 43 (D.C.
Cir.) (No. 13-5252).
87.
Notice of Intent to File as Amici Curiae, Nat’l Ass’n of Mfrs. v. S.E.C., 956 F. Supp. 2d
43 (D.C. Cir.) (No. 13-5252).
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of the requirements is difficult, Representative Eliot Engel (D-NY) said in a
statement, “[b]ut we felt and continue to feel that these challenges are worth
it to protect the human and labor rights of very vulnerable individuals in
remote areas of the world, particularly the [DRC].”88 Representative Jim
McDermott (D-WA) added, “[h]opefully, it will also create transparency
that consumers and investors deserve.”89
B.
Other Developments
Non-government organizations (NGO) have remained active in
lobbying for effective action to end trade in conflict minerals. To illustrate,
as mentioned above, several NGOs called on the European Commission to
adopt legislation, which would mandate European companies to undertake
due diligence so that those in their supply chain do not engage in
production and trade in such minerals.90 Such a legislative framework
would “clarify the responsibilities of European companies and . . . provide
the basis for appropriate oversight by regulators, markets and consumers.”91
The NGOs called for the legislation to be binding, to apply to all segments
of the supply chain, and to have a global geographic scope and a broad
material scope applicable to all natural resources.92
Another initiative contrasts Dodd-Frank, Section 1502 with the Due
Diligence Guidance, as the former is seen to have “the unfortunate
unintended consequence of reducing formal trade in minerals, so depriving
tens of thousands of artisanal miners of their livelihood,” due to the Due
Diligence Guidance “place[ing] the focus on responsible processes . . .
support[ing] a responsible minerals trade in conflict-affected areas, [and]
helping to improve economic and social conditions.”93
It suggests that the EU should undertake the following three linked
initiatives:
1)
The EU should “encourage all companies to publicly
disclose their conflict-sensitive production or sourcing
88.
Lawmakers Join Fight Over Conflict Minerals Regulation, THEHILL.COM (Oct. 31, 2013),
http://thehill.com/blogs/regwatch/court-battles/188923-lawmakers-join-fight-over-conflict-mineralsregulation (last visited Feb. 20, 2014).
89.
Id.
90.
Breaking the Links, supra note 9.
91.
Id.
92.
Id.
93.
Addressing Human Rights Abuses From Gold Mining Without Stigmatisation,
EURACTIV.COM (June 13, 2013), http://www.euractiv.com/print/trade/gold-council-eu-needs-businessh-analysis-528511 (last visited Feb. 1, 2014).
298
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2)
3)
[Vol. 20:2
practices,” regarding all minerals, countries, and supply
chains, without mandating their use of a specific
94
instrument;
The EU should give consideration to creating a publicprivate alliance aimed at actively supporting and
95
encouraging a responsible minerals trade; and
The EU’s development aid should support appropriate
“formalization programmes” in order to reduce the risk of
fueling unlawful armed conflict arising from illegal
96
mining.
This initiative would promote responsible
sourcing and address the development needs of resource97
rich countries.
Another report, Coming Clean: A Proposal for Getting Conflict
Minerals Back on Track,98 used field research to reveal that governments in
the Great Lakes Region, including the Congo and Rwanda, have not yet
fulfilled their commitments to the mineral certification process designed by
the International Conference on the Great Lakes Region (ICGLR) to ensure
accountability and transparency, which is undermining the credibility of the
system.99 The ICGLR’s framework is called the ICGLR Regional Initiative
against the Exploitation of Natural Resources, and its mineral certification
scheme, called the Regional Certification Mechanism (RCM), is a main part
of the initiative.100 The RCM has four components:
1)
2)
3)
4)
94.
Id.
95.
Id.
96.
Id.
97.
Id.
Mine inspection and traceability;
A regional mineral tracking database;
Audits which are overseen by the ICGLR Audit Committee,
a committee of electronics companies, regional
governments, and NGOs which is not yet finalized; and
Independent monitoring, by the Mineral Chain Auditor
which has not yet been brought together.101
98.
Aaron Hall & Sasha Lezhnev, Coming Clean: A Proposal for Getting Conflict Minerals
Certification on Track, ENOUGHPROJECT.ORG (Nov. 2013), http://www.enoughproject.org/files/
ComingClean-Getting-Conflict-Minerals-Certification-on-Track.pdf (last visited Feb. 20, 2013)
99.
Id.
100.
Id.
101.
Id.
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299
The report warned that without the full application of this process,
these countries risk disengagement from multinational companies, which
might halt consumption from those mines that are not certified as conflict
free. The report made recommendations to the United States, the EU, and
other governments, as well as donors, to provide necessary help so that
these governments implement the certification process.102 Aaron Hall, coauthor of the report, stated:
Certification is the most critical component of the entire conflictfree minerals system. If minerals from the Great Lakes region
cannot be certified as conflict-free, then efforts to trace and audit
become moot. Without functioning regional audits or an
independent Mineral Chain Auditor, minerals cannot be credibly
103
certified according to regional and international standards.
Dodd-Frank, Section 1502 has indeed been a catalyst to international
efforts addressing conflict minerals issues. In addition to the EU, Canada
has been exploring certification schemes to prevent the sale of conflict
minerals to their companies.104 On March 27, 2013, the European
Commission launched a public consultation on conflict minerals to get
views on “a potential EU initiative for responsible sourcing of minerals
coming from conflict zones and high-risk areas.”105 The focus of such an
initiative in Europe is on being “reasonable and effective,” and it is aimed
at complementing and continuing “ongoing due diligence initiatives and
support for good governance in mineral mining, especially in developing
countries affected by conflict.”106
The EU is considering replicating its own initiative after Dodd-Frank
and is also looking for guidance to the OECD.107 European Trade
102.
Id.
103.
Carine Umuhumuza, Conflict Minerals:
Companies May Stop Buying Unless
Certification is Sped Up, ENOUGHPROJECT.ORG (Nov. 11, 2013), http://www.enoughproject.org/
node/6918 (last visited Feb. 1, 2014).
104.
Zachary Hawley, Reducing Violence Associated with Conflict Minerals, GLICA.ORG (Feb.
1, 2014), http://www.glica.org/topics/show/93 (last visited Feb. 20, 2014).
105.
EU Calls For Input On Conflict Minerals, EUROPEAN COMMISSION (Mar. 27, 2013),
http://trade.ec.europa.eu/doclib/press/index.cfm?id=882 (last visited Feb. 1, 2014).
106.
Id. (The EU received 280 replies, of which 80% of businesses indicated an interest in
responsible sourcing); see Karel De Gucht, European Trade Commissioner, Address at the BDI Event:
Responsible Sourcing of Minerals from Conflict-Affected Regions/Brussels: Conflict Minerals: The
Need to Act (Sept. 3, 2013), available at http://europa.eu/rapid/press-release_SPEECH-13-673_en.htm
(last visited Feb. 20, 2014).
107.
Kristen Wallerstedt, EU and Canada Consider Conflict Minerals Rules, 3ECOMPANY
(Apr. 4, 2013), http://3ecompany.com/blog/?p=172 (last visited Feb. 20, 2014).
300
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Commissioner De Gucht has indicated that the EU’s initiative will have a
broader coverage than Dodd-Frank, as he stated, “[c]onflict minerals is not
a problem exclusive to the Great Lakes Region,” because the guerillas in
Colombia and Venezuela have reportedly been using production of both
gold and the tantalum ore, coltan, to continue their campaign since the
production of cocaine has become more difficult.”108 He also preferred the
European focus on “providing smelters—the narrowest point in the supply
chain—with incentives to carry out due diligence on their upstream
suppliers.”109 A consensus seemed to be emerging that after conducting an
impact assessment of the potential EU Directive, the OECD Due Diligence
Guidance should be used “as a reference in terms of both relevant products
and scope,” and the likely target would be the upstream part of the supply
chain, that is, from mine to smelter.110
Canada has also been considering action on conflict minerals to ensure
that they are not used by Canadian companies in their supply chain.111 A
comprehensive “private member’s bill” was introduced in the Canadian
Parliament on March 26, 2013 that addresses corporate practices related to
conflict minerals from the Great Lakes Region, including their “extraction,
processing, purchase, trade, and use.”112
Among other industry groups, the World Gold Council has undertaken
initiatives to combat potential misuse of gold to fuel armed conflicts.113 In
October 2012, it established the Conflict-Free Gold Standard, providing a
common approach for gold producers to assess the ways their gold has been
extracted, and a way to show that the gold they mine is conflict-free.114 The
process includes a human rights commitment, transparency about payments
to government officials, and steps to report any infringements of this
process to resolve grievances that local people might raise, with a yearly
external assessment.115
108.
De Gucht, supra note 14, at 3.
109.
De Gucht, supra note 106, at 4.
110.
Harrison Mitchell, A Quick Update on a Possible EU Directive on Conflict Minerals,
RCSGLOBAL.COM (Oct. 7, 2013), http://www.rcsglobal.com/blog/a-quick-update-on-a-possible-eudirective-on-conflict-minerals/ (last visited Feb. 20, 2014).
111.
See Wallerstedt, supra note 107.
112.
Id.
113.
Aram Shishmanian, World Gold Council Conflict-Free Gold Standard: An Introduction,
WORLD GOLD COUNCIL (Mar. 2012), http://www.srz.com/files/upload/Conflict_Minerals_
Resource_Center/World_Gold_Council_Conflict_Free_Gold_Standard.pdf (last visited Feb. 20, 2014).
114.
See Sue George, Conflict Minerals: What Can The Mining Industry Do?, THE GUARDIAN
(May 15, 2013), http://www.theguardian.com/sustainable-business/conflict-minerals-mining-industry
(last visited Feb. 20, 2014).
115.
See id.
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Another similar initiative is the Responsible Jewelry Council’s Code
of Practice (RJC), which encompasses both gold and diamonds, and is a
mandatory requirement for all RJC members.116 Fiona Solomon, Director
of Standards Development of RJC, said that it “welcomes gold, diamonds
and platinum group metals companies from all parts of the supply chain,
geographies, and size of business to find out how they can play their part in
implementing responsible standards on the ground.”117
These initiatives are important because the researchers have a new
map showing mining sites in the eastern DRC controlled by armed groups
and the Congolese armies, which show that “the number one conflict
mineral from the region is now gold, which is harder to trace than the other
minerals from the area.”118
With the May 3, 2014 deadline for companies to make their first
conflict minerals disclosures, the race is on to find effective software tools,
but the available supply chain management software is not considered
adequate to meet the disclosure requirements. Moreover, tracking the long
chain of middlemen, smelters, and refiners is not easily automated, and
most suppliers are unable to track the origins of their metals themselves.
The issue is that “if people know where they get their ore from, their
competitors will go to the source and cut them out of the supply chain.”119
However, many consultants are currently providing the necessary advice to
companies to meet the requirements.120
116.
Id.
117.
Id.
118.
Nick Long, Map Shows Gold is Top Conflict Mineral in Eastern Congo, VOICE OF
AMERICA (Nov. 21, 2013), http://www.voanews.com/articleprintview/1794975.html (last visited Feb.
20, 2014).
119.
Deadline Looms for Conflict Minerals Reporting, APICS.ORG (Nov. 19, 2013),
http://www.apics.org/apics-news/2013/11/19/deadline-looms-for-conflict-minerals-reporting
(last
visited Feb. 1, 2014).
120.
See generally SOURCE INTELLIGENCE, CONFLICT MINERALS COMPLIANCE: DATA ASSESSMENT
ASSURANCE (Nov. 2013), available at
http://www.sourceintelligence.com/userfiles/file/Data_
Assessment_Assurance_White_Paper_Nov15.pdf (last visited Feb. 20, 2014); see generally ERNST & YOUNG,
CONFLICT MINERALS: WHAT YOU NEED TO KNOW ABOUT THE NEW DISCLOSURE AND REPORTING
REQUIREMENTS AND HOW ERNST & YOUNG CAN HELP (2012), available at http://www.ey.com/
Publication/vwLUAssets/Conflict_minerals/$FILE/Conflict_Minerals_US.pdf (last visited Feb. 20, 2014); see
generally GIBSON DUNN, CONFLICT MINERALS: UNDERSTANDING THE SEC’S FINAL RULES (Sept. 14, 2012),
available
at
http://gibsondunn.com/publications/Documents/ConflictMinerals-UnderstandingFinal
SECRules.pdf (last visited Feb. 20, 2014); see generally Kristen Wallerstedt, 15 Tips for Complying with the
Conflict Minerals Provision of the Dodd Frank Act, ENVIRONMENTALLEADER.COM (Apr. 1, 2013),
http://www.environmentalleader.com/2013/04/01/15-tips-for-complying-with-the-conflict-minerals-provisionof-the-dodd-frank-act/ (last visited Feb. 20, 2014); see generally GRAINGER, CONFLICT MINERALS POLICY
AND
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V. APPRAISAL
It seems appropriate to begin this section by noting that the disclosure
requirements in Dodd-Frank, Section 1502 do not fit the SEC’s mission, as
the purpose of the SEC’s corporate disclosure is “to protect investors,
maintain fair, orderly, and efficient markets, and facilitate capital
formation.”121 The purpose and scope of the requirement were described in
the SEC’s proposed rule in December 2010, which implemented DoddFrank Section, 1502: “It appears [to be] for the disclosure of certain
information to help end the emergency humanitarian situation in the eastern
DRC that is financed by the exploitation of trade of conflict minerals
originating in the DRC countries . . . .”122 However, it also acknowledged
that the requirement “is qualitatively different from the nature and purpose
of the disclosure of information that has been required under the periodic
reporting provisions of the Exchange Act.”123
Of course, there can be no challenge to the objective that Congress
intended to accomplish. The horrors the armed gangs have inflicted upon
the Congolese people are well known and have created a wide awareness
that action must be taken to curb violence. Thus, the question is not
whether action should be taken, but rather the form and nature of the action.
What is questionable, however, is the choice of the SEC as the institution to
require company disclosure to accomplish the task.
As the legislative history of Section 13 of the Exchange Act,124 which
was amended by Dodd-Frank, Section 1502, shows its disclosure
requirements were aimed at the “furnishing of complete information
relative to the financial condition of the issuer . . . which . . . [should] be
kept up to date by adequate periodic reports.”125 Thus, the purpose was that
reporting by a company would warn the potential investor about risks
associated with investing in the company. In contrast, Section 1502 is
aimed not at investor protection but prevention of exploitation and trade in
STATEMENT (Aug. 2013), available at http://www.graingercsr.com/wp-content/uploads/2013/08/ConflictMinerals-Policy.pdf (last visited Feb. 20, 2014).
121.
The Investor’s Advocate: How the SEC Protects Investors, Maintains Market Integrity,
and Facilitates Capital Formation, SEC.GOV (June 10, 2013), http://www.sec.gov/about/
whatwedo.shtml (last visited Feb. 17, 2014).
122.
Conflict Minerals, 75 Fed. Reg. 80,948, 80,960 (proposed Dec. 23, 2010) (to be codified at
17 C.F.R. pts. 229 and 249).
123.
Id.
124.
15 U.S.C. § 78a (1934).
125.
Karen E. Woody, Conflict Minerals Legislation: The SEC’s New Role as Diplomatic and
Humanitarian Watchdog, 81 FORDHAM L. REV. 1315, 1322 (2012) (quoting S. REP. NO. 73-792, at 10
(1934)).
2014]
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conflict minerals responsible for financing armed conflict in the DRC and
contiguous countries in the region, thus curbing violence. Whether conflict
minerals are present in a company’s product is not material to investor.
Daniel M. Gallagher, one of the dissenting Commissioners, stated at
an SEC Open Meeting when the rule was made implementing Section
1502:
Unfortunately, Section 1502 is about curtailing violence in the
DRC; it is not about investor protection, promoting fair and
efficient markets, or capital formation. Warlords and armed
criminals need to fund their nefarious operations. Their funding
is their lifeline; it’s a chokepoint that should be cut off. That is a
perfectly reasonable foreign policy objective. But it’s not an
objective that fits anywhere within the SEC’s threefold statutory
mission . . . . I do not like to see social or foreign policy
provisions engrafted onto the securities laws. I have serious
doubt, in any event, about the efficacy of using the securities
laws to effect social and foreign policy aims, however noble and
urgent. I do think it is incumbent on the Commission to identify
and evaluate specifically the benefits of any rule we consider,
including those driven by a congressional mandate. In that
connection, I also believe that the limits of the SEC’s statutory
mission are relevant. For these reasons, I cannot support the
126
rule.
On October 4, 2013, SEC Chairman Mary Jo White said in a speech at
Fordham Law School in New York, “[s]eeking to improve safety in mines
for workers or to end horrible human rights atrocities in the [DRC] are
compelling objectives, which, as a citizen, I wholeheartedly share.”127 She
added, however, that “as the chair of the SEC, I must question as a policy
matter, using the federal securities laws and the SEC’s powers of
mandatory disclosure to accomplish these goals.”128
Questions have also been raised about the efficacy of Section 1502 in
accomplishing its purpose. To illustrate, at a House hearing on May 21,
2013, several participants expressed skepticism. David Aronson, a
126.
Comm’r Daniel M. Gallagher, Statement at SEC Open Meeting: Proposed Rule to
Implement Section 1502 of the Dodd-Frank Act—The “Conflict Minerals” Provision, SEC.GOV (Aug.
22, 2012), http://www.sec.gov/News/Speech/Detail/Speech/1365171490886#.UwaJ_Hlakds (last visited
Feb. 20, 2014).
127.
SEC Chairman: New Rules Could Lead to ‘Information Overload,’ CFO J., THE WALL
ST. J. (Oct. 4, 2013, 12:39 PM), http://blogs.wsj.com/cfo/2013/10/04/sec-chairman-new-rules-couldlead-to-information-overload/tab/print/?KEYWORDS=conflict+minerals (last visited Feb. 20, 2014).
128.
Id.
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freelance writer who has worked and lived in Central Africa for twenty-five
years, was one of the critics who stated that Dodd-Frank, Section 1502:
[I]mposed a de facto embargo on mineral production that
impoverished the region’s million or so artisanal miners. It also
drove the trade into the hands of militia and predatory Congolese
army units.
The military situation on the ground has
considerably worsened since passage of the law, and the SEC’s
129
promulgation of the implementation guidelines.
On April 14, 2014 the United States Court of Appeals District of
Columbia Circuit determined the outcome of the industry’s challenge to the
validity of Dodd-Frank Section 1502 as it affirmed the District Court’s
judgment in part and reversed in part.130 It affirmed the ruling regarding
claims under the APA and the Exchange Act,131 however, it reversed the
holding that the rule’s disclosure requirement interferes with the right of
freedom of speech and hence violates “the First Amendment to the extent
the statute and rule require regulated entities to report to the Commission
and to state on their website that any of their products have “not found to be
‘DCR conflict free.’””132
129.
The Unintended Consequences of Dodd-Frank’s Conflict Minerals Provision: Hearing
Before the Subcomm. on Monetary Policy and Trade of the Comm. on Fin. Serv., 105th Cong. 6 (May
21, 2013), available at http://financialservices.house.gov/uploadedfiles/113-23.pdf (last visited Feb. 20,
2014); see also Simon Propper & Peter Knight, ‘Conflict Free’ Minerals From The DRC Will Only Be
Possible if Companies Stay, THE GUARDIAN (Dec. 4, 2013), http://www.theguardian.com/sustainablebusiness/conflict-free-minerals-drc-companies-stay (last visited Feb. 20, 2014), stating that:
A select few electronics companies have energized [sic.] the initiative to
encourage conflict-free mining. But many companies that use the minerals,
notably car and plane-makers [sic.], have stood back and refused to use their
buying power to bring change. Unless a broader coalition of industries gets
behind pioneering conflict-free sourcing work, the DRC may remain in economic
darkness.
130.
Nat’l Ass’n of Mfrs. v. S.E.C., No. 13-5252, 2014 U.S. App. LEXIS 6840, at *34 (D.C.
Cir. Apr. 14, 2014).
131.
See generally id. at *9–24.
132.
Id. at *33–34.
ACCELERATED FORMATION OF CUSTOMARY
INTERNATIONAL LAW
Michael P. Scharf*
I.
II.
III.
IV.
INTRODUCTION ................................................................................ 305
PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW FORMATION .. 308
A. The Contemporary Importance of Customary International
Law .......................................................................................... 308
B. The Elements of Customary International Law....................... 310
1. The Objective Element .................................................... 312
a. Claim and Response Verses Articulation and Act ...... 313
b. General Verses Constant and Uniform Practice........ 315
c. The Persistent Objector Rule...................................... 317
d. Treaties as Source of Custom ..................................... 318
e. The Role of Judicial Decisions ................................... 320
2. The Subjective Element .................................................. 322
3. The Role of General Assembly Resolutions ................... 324
4. The Sliding Scale Theory ................................................ 328
THE GROTIAN MOMENT CONCEPT .................................................. 329
A. Nuremberg as Grotian Moment .............................................. 330
B. Other Examples of Grotian Moments Since World War II ..... 335
CONCLUSION ................................................................................... 341
I. INTRODUCTION
By tradition, jurists, statesmen, and scholars have looked exclusively
to two factors to divine whether an emergent rule has attained customary
international law status: 1) widespread State practice and 2) manifestations
of a conviction that the practice is required by international law.1 As a
*
Interim Dean and John Deaver Drinko—Baker & Hostetler Professor of Law, Case
Western Reserve University School of Law. This article was based on a speech about my latest book,
CUSTOMARY INTERNATIONAL LAW IN TIMES OF FUNDAMENTAL CHANGE: RECOGNIZING GROTIAN
MOMENTS (Cambridge University Press, 2013), delivered at International Law Weekend 2013,
sponsored by the American Branch of the International Law Association, on October 26, 2013.
1.
On the international plane, customary international law is just as binding on a state as
treaty law. A growing number of states’ constitutions automatically incorporate customary law as part
of the law of the land and even accord it a ranking higher than domestic statutes. Bruno Simma,
International Human Rights and General International Law: A Comparative Analysis, in COLLECTED
COURSES OF THE ACADEMY OF EUROPEAN LAW 153, 213 (1995). In the United States, customary
international law is deemed incorporated into the federal common law of the United States, but some
courts consider it controlling only where there is no contradictory treaty, statute, or executive act. See
Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986) (holding that Attorney General’s decision to
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companion to my book, Customary International Law in Times of
Fundamental Change:
Recognizing Grotian Moments, this article
examines the largely overlooked role of a third factor—a context of
fundamental change—that can serve as an accelerating agent, enabling
customary international law to form much more rapidly and with less State
practice than is normally thought to be possible. In these circumstances,
General Assembly Resolutions and judgments of international tribunals
often play a heightened role in “crystallizing” the newly emergent rule.
Historically, crystallization of new rules of customary international
law was viewed as a protracted process that took decades, if not centuries,
to complete. French jurisprudence generally required the passage of at least
forty years for the emergence of an international custom, while German
doctrine generally required thirty years.2
The International Law
Commission (ILC), at the beginning of its work, demanded State practice
“over a considerable period of time” for a customary norm to emerge.3
Indeed, the term crystallization is often employed by the International Court
of Justice (ICJ) and scholars to equate formation of customary rules with
the slow growth of crystalline minerals. But, as the ICJ noted in North Sea
Continental Shelf,4 sometimes customary international law has formed
much more rapidly, thus challenging this geologic metaphor.
detain Mariel Cuban refugees indefinitely without a hearing trumped any contrary rules of customary
international law).
2.
Vincy Fon & Franscesco Parisi, The Formation of Customary Law 5 (George Mason Univ.
Law,
Working
Paper
No.
02–24,
2000),
available
at
www.law.gmu.edu/assets/files/publications/working_papers/02-24.pdf (last visited Feb. 22, 2014); see
G.I. Tunkin, Remarks on the Judicial Nature of Customary Norms in International Law, 49 CALIF. L.
REV. 419, 420 (1961).
3.
Manley O. Hudson, Special Rapporteur on Article 24 of the Statute of the Int’l Law
Comm’n, Ways and Means for Making the Evidence of Customary International Law More Readily
Available, Y.B. Int’l L. Comm’n, U.N. Doc. A/CN.4/16 (Mar. 3, 1950).
4.
North Sea Continental Shelf (Ger. v. Den., Ger. v. Neth.), Merits, 1969 I.C.J. 3, ¶¶ 71, 73–
74 (Feb. 20) [hereinafter North Sea Continental Shelf]. The Court stated:
Although the passage of only a short period of time is not necessarily . . . a bar to
the formation of a new rule of customary international law . . . an indispensable
requirement would be that within the period in question, short though it might be,
State practice, including that of States whose interests are specially affected,
should have been both extensive and virtually uniform in the sense of the
provision invoked; and should moreover have occurred in such a way as to show
a general recognition that a rule of law or legal obligation is involved.
Id. ¶ 74. While recognizing that some norms can quickly become customary international law, the ICJ
held that the equidistance principle contained in Article 6 of the 1958 Convention on the Continental
Shelf had not done so as of 1969 because so few States recognized and applied the principle. At the
same time, the Court did find that that Articles 1 and 3 of the Convention (concerning the regime of the
continental shelf) did have the status of established customary law.
2014]
Scharf
307
In 2012, I was invited to tour the headquarters of the Kyocera
Corporation in Kyoto, Japan, which is headed by the patron of Case
Western Reserve University’s Inamori Ethics Prize. Among the products
Kyocera manufactures are re-crystallized gem stones. When looking at
these artificially created diamonds, emeralds, and rubies, it occurred to me
that just as Kyocera is able to create precious gem stones in a short time
under intense heat and pressure, so too can a context of fundamental change
intensify and accelerate the formation of customary international law.
Drawing from the writings of Professor Bruce Ackerman, who used
the phrase “constitutional moment” to describe the New Deal
transformation in American constitutional law,5 some international law
scholars have used the phrase “international constitutional moment” to
describe rapid paradigm shifts6 and transformative moments in international
law. Stanford Law Professor Jenny Martinez, for example, has written that
the drafting of the United Nations (U.N.) Charter was a “constitutional
moment” in the history of international law.7 Washington University Law
Professor Leila Sadat has similarly described Nuremberg as a
“constitutional moment for international law.”8 Dean Anne Marie
Slaughter from Princeton’s Woodrow Wilson School and University of
Pennsylvania Law School Professor William Burke-White have used the
term “constitutional moment” in making the case that the September 11th
attacks on the United States evidence a change in the nature of the threats
confronting the international community, thereby paving the way for rapid
development of new rules of customary international law.9 While the
phrase “international constitutional moment” might be quite useful with
5.
See generally BRUCE ACKERMAN, RECONSTRUCTING AMERICAN LAW 19 (1984); see also
BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 385, 409 (1991).
6.
THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 150 (2d ed. 1970) (coining
the phrase “paradigm shift”).
7.
(2003).
Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 463
8.
Leila Nadya Sadat, Enemy Combatants After Hamdan v. Rumsfeld: Extraordinary
Rendition, Torture, and Other Nightmares from the War on Terror, 75 GEO. WASH. L. REV. 1200,
1206–07 (2007).
9.
Anne-Marie Slaughter & William Burke-White, An International Constitutional Moment,
43 HARV. INT’L L. J. 1, 2 (2002); see also Ian Johnstone, The Plea of “Necessity” in International Legal
Discourse: Humanitarian Intervention and Counter-Terrorism, 43 COLUM. J. TRANSNAT’L L. 337, 370
(2005) (arguing that 9/11 constituted a “constitutional moment” leading to recognition of a newly
emergent right to use force in self-defense argued against non-state actors operating with the support of
third States).
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respect to paradigm-shifting developments10 within a particular
international organization with a constitutive instrument that acts like a
constitution, a different term is needed when speaking of a development in
customary international law.
I have advocated the phrase “Grotian Moment,” first coined by
Princeton Professor Richard Falk,11 to capture this concept. Dutch scholar
and diplomat Hugo Grotius (1583–1645) is widely considered to have laid
the intellectual architecture for the Peace of Westphalia, which launched the
basic rules of modern international law.12 While the results of Westphalia
may have been simplified by the lens of history, and Grotius’ role may have
been exaggerated,13 Westphalia has unquestionably emerged as a symbolic
marker and Grotius as an emblematic figure of changing historical thought.
“Grotian Moment” thus seems like an apt label for transformational events
in international law.
This article first reviews the scholarly debate about the nature and
formation of customary international law. Then, examining case studies of
rapid formation of customary international law, the article explores the role
played by a context of fundamental change as an accelerating agent.
II. PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW FORMATION
A.
The Contemporary Importance of Customary International Law
To paraphrase Mark Twain, reports of the death of customary
international law are “greatly exaggerated.”14 Despite its widespread
10.
As defined by Thomas Kuhn in his influential book, THE STRUCTURE OF SCIENTIFIC
REVOLUTIONS, a paradigm shift is a change in the basic assumptions within the ruling theory of science.
While Kuhn opined that the term should be confined to the context of pure science, it has since been
widely used in numerous non-scientific contexts to describe a profound change in a fundamental model
or perception of events. One such example is the Keynesian Revolution in macroeconomic theory.
THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 150 (2d ed., 1970).
11.
MICHAEL P. SCHARF, CUSTOMARY INTERNATIONAL LAW IN TIMES OF FUNDAMENTAL
CHANGE: RECOGNIZING GROTIAN MOMENTS 17 (2013); see also INTERNATIONAL LAW AND WORLD
ORDER 1265–86 (Burns H. Weston et al. eds., Thomson/West 4th ed. 2006). For the early seeds of this
concept of a changing paradigm in Falk’s work, see The Interplay of Westphalia and Charter
Conceptions of International Legal Order, in THE FUTURE OF THE INT’L LEGAL ORDER 32 (R. Falk &
C. Black eds., 1969).
12.
HEDLEY BULL ET AL., HUGO GROTIUS AND INTERNATIONAL RELATIONS 1, 9 (1992).
EDWARD KEENE, BEYOND THE ANARCHICAL SOCIETY: GROTIUS, COLONIALISM, AND
ORDER IN WORLD POLITICS 45–52 (Cambridge University Press, 2002).
13.
14.
MARK TWAIN, BARTLETT’S FAMILIAR QUOTATIONS 625 (15th ed. 1980); David
Bederman, Acquiescence, Objection and the Death of Customary International Law, 21 DUKE INT’L L.
J. 31, 43 (2010).
2014]
Scharf
309
codification in treaties during the last century, the unwritten norms, rules,
and principles of customary law continue to play a crucial role in
international relations.15 There are three primary reasons for customary
international law’s continuing vitality.
First, in some ways, customary international law possesses more
jurisprudential power than does treaty law. Unlike treaties, which bind only
the parties thereto, once a norm is established as customary international
law, it is binding on all States, even those new to a type of activity, so long
as they did not persistently object during its formation.16 Since some
international law rules co-exist in treaties and custom, customary
international law expands the reach of the rules to those States that have not
yet ratified the treaty. In addition, the customary international law status of
the rules can apply to actions of the treaty parties that pre-dated the entry
into force of the treaty. Moreover, States that were not even in existence at
the time the norm evolved, such as colonies or former parts of a larger
State, and therefore never had an opportunity to express their positions as a
particular rule emerged, are nonetheless generally deemed to be bound by
the entire corpus of customary international law existing upon the date they
become sovereign States.17 Finally, unlike some treaties, which by their
terms permit withdrawal, customary international law does not recognize a
unilateral right to withdraw from it.18
Second, while one might tend to think of customary international law
as growing only slowly, in contrast to the more rapid formation of treaties,
the actual practice of the world community in modern times suggests that
the reverse is more often the case. For example, negotiations for the Law of
the Sea Convention began in 1973, the Convention was concluded in 1982,
and did not enter into force until it received its sixtieth ratification in
15.
Their definitions vary, but in ordinary usage the terms norms, principles and rules of
customary international law are often used interchangeably, as they are here.
16.
INT’L LAW ASS’N, LONDON CONFERENCE: COMMITTEE ON FORMATION OF CUSTOMARY
(GENERAL) INTERNATIONAL LAW 25 (2000), available at http://www.ila-hq.org/en/
committees/index.cfm/cid/30 (last visited May 9, 2014) [hereinafter INT’L LAW ASS’N].
17.
David Koplow, International Legal Standards and the Weaponization of Outer Space, in
SPACE: THE NEXT GENERATION—CONFERENCE REPORT, UNITED NATIONS INST. FOR DISARMAMENT
RESEARCH 161 (2008).
18.
Professors Bradley and Gulati criticize customary international law for failing to recognize
a right to subsequently withdrawal from a customary rule in parallel with the right to withdraw from a
treaty. See generally Curtis A. Bradley & Mitu Gulati, Customary International Law and Withdrawal
Rights in an Age of Treaties, 21 DUKE J. COMP. & INT’L L. 1 (2010). Note, however, that not all treaties
permit withdrawal. Moreover, there are situations, such as in a fundamental change of circumstances,
where a State can be excused for failing to comply with a customary rule. See HERSCH LAUTERPACHT,
THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY 66 (1933).
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1994—a period of twenty-one years.19 Similarly, negotiations for the
Vienna Convention on the Law of Treaties began in 1949, the Convention
was concluded in 1969, and did not enter into force until it received its
thirty-fifth ratification in 1980—some thirty-one years.20 And the ILC
began its work on the Statute for an International Criminal Court in 1949,
several preparatory committees then worked on it, and it was finally
concluded in Rome in 1998 and entered into force upon receipt of its
sixtieth ratification in 2002—a span of fifty-three years from start to
finish.21 As we shall see below, customary international law often forms at
a much faster pace, especially with respect to areas of technological or
other fundamental change.22
Finally, one might assume that treaty law offers the benefit of greater
clarity and precision in the articulation of the legal obligations, but this is
not always the case. Rather, the provisions of treaties, especially
multinational conventions, are also often subject to what H.L.A. Hart called
a “penumbra of uncertainty”23 resulting from the need to bridge language,
cultural, legal, and political divides between diverse parties. In some areas,
customary rules may provide greater precision since they evolve in
response to concrete situations and cases, and are often articulated in the
written decisions of international courts.
B.
The Elements of Customary International Law
Hugo Grotius discerned the law of nations (jus gentium) from custom
(usus), the views of the learned, and the will (voluntas) of States.24 In the
centuries after Grotius, customary international law was deemed to
constitute rules that develop through a “slow process of growth, whereby
19.
U.N. Office of Legal Affairs, Div. for Ocean Affairs and the Law of the Sea, The United
Nations Convention on the Law of the Sea (A Historical Perspective), UNITED NATIONS (1998),
available at http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm
(last visited Feb. 8, 2014).
20.
Karl Zemanek, Vienna Convention on the Law of Treaties, UNITED NATIONS (May 23,
1969), available at http://legal.un.org/avl/pdf/ha/vclt/vclt-e.pdf (last visited May 9, 2014).
21.
U.N. G.A., Rome Statute of the I.C.C., 17 July 1998, A/CONF.183/9 (2002).
22.
In contrast to earlier times, in the modern era of instantaneous electronic communications,
and a proliferation of diplomatic conferences, organizations and other forums for multinational
diplomatic exchanges, State practice is being generated at an increasing pace, while information about
state practice is becoming more and more widely disseminated over the internet. This means that the
requisite quantity of claims and responses can be reached much more quickly than in the past leading to
a general acceleration of the formation of customary rules. Tullio Treves, Customary International
Law, in MAX PLANCK ENCYCLOPEDIA OF PUB. INT’L LAW ¶ 25 (2006).
23.
H.L.A. HART, THE CONCEPT OF Law 121–32, 144–50 (1961).
24.
HUGO GROTIUS, BELLI AC PACIS ch. I, xiv (Kessinger Publ’g, 2004).
2014]
Scharf
311
courses of conduct once thought optional become first habitual or usual,
and then obligatory, and the converse process of decay, when deviations,
once severely dealt with, are first tolerated and then pass unnoticed.”25
Article 38 of the Statute of the ICJ contains the modern definition of
customary international law: “The Court, whose function is to decide in
accordance with international law such disputes as are submitted to it, shall
apply . . . (b) international custom, as evidence of a general practice
accepted as law.”26 The text of Article 38 reflects the view that customary
international law is composed of two elements: 1) general State practice,
termed the “objective element;” and 2) some sort of attitude towards
practice (be it acknowledgment as law or consent), termed the “subjective
element.”27 The judgments of the Permanent Court of International Justice
(PCIJ) (the forerunner of the ICJ) and the ICJ have been consistent in
stating that a customary rule requires the presence of both of these
elements. Thus, in the 1929 S.S. Lotus, the PCIJ stated that international
law is based on the will of States expressed in conventions or in “usages
generally accepted as expressing principles of law.”28 Similarly, in the
1969 North Sea Continental Shelf, the ICJ stated that the actions by States
“not only must amount to a settled practice, but they must also be such, or
be carried out in such a way, as to be evidence of a belief that this practice
is rendered obligatory by the existence of the rule of law requiring it.”29
Where those two elements are manifest, a rule of customary
international law will be deemed to bind all States, with the exception of
persistent objectors, without it being necessary to show that the particular
State allegedly bound by the rule has participated in its formation or has
otherwise accepted it.30 This article focuses on general custom, that is,
rules that apply world-wide. There is also such a thing as regional or local
customary law, which can apply in a particular geographic area, e.g., to the
States surrounding a bay, or in a particular sector—all the States that
possess a particular technology, but that is not the subject of this inquiry.
25.
HART, supra note 23, at 90.
26.
1945 I.C.J. Stat. 1055, T.S. No. 993. All member States of the United Nations are
automatically parties to the Statute of the International Court of Justice.
27.
(1998).
MAURICE H. MENDELSON, THE FORMATION OF CUSTOMARY INTERNATIONAL LAW 195
28.
S.S. Lotus (Fr. v. Turk.), Merits, 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).
29.
North Sea Continental Shelf, 1969 I.C.J. ¶ 77.
30.
MENDELSON, supra note 27, at 218.
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1. The Objective Element
Traditionally, jurists and scholars have put more emphasis on State
conduct than on the subjective element. That is because a State’s conduct
was traditionally easier to ascertain than the belief of a State. With the
introduction of the U.N. and other bodies where multilateral diplomacy is
conducted in the open, however, the situation has in fact reversed.31 State
practice can be reflected in the acts of the judiciary, legislature, or executive
branch of government. It comes in many forms, including: Diplomatic
correspondence; declarations of government policy; the advice of
government legal advisers; press statements, military manuals, votes and
explanation of votes in international organizations; the comments of
governments on draft texts produced by the ILC; national legislation,
domestic court decisions; and pleadings before international tribunals.32
While one might be tempted to conclude that acts count more than
words because “talk is cheap,” virtually all of the authorities treat the two as
equal.33 In fact, ICJ Judge Richard Baxter once noted, “the firm statement
by the State of what it considers to be the rule is far better evidence of its
position than what can be pieced together from the actions of that country at
different times and in a variety of contexts.”34 The case law of international
tribunals is replete with examples of verbal acts being treated as examples
of practice.35 In particular, diplomatic protest (or its absence) is universally
viewed as important in determining whether a customary rule has been
created or superseded. Thus, in assessing the relevant behavior of States,
“we look to words as well as deeds, and to silences as well as inactions.”36
Verbal acts can count as either the objective or subjective element, and the
International Law Association (ILA) has observed that it is possible for the
same conduct to manifest both.37 As discussed below, State votes on U.N.
31.
Id. at 197.
32.
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5 (4th ed., 1990).
33.
INT’L LAW ASS’N, supra note 16, at 13–14.
34.
Richard Baxter, Multilateral Treaties as Evidence of Customary International Law, 41
BRIT. YEAR BOOK OF INT’L L. 275, 300 (1965–l966).
35.
See S.S. Lotus, 1927 P.C.I.J. at 23, 26–30; Nottebohm Case (Lich. v. Guat.), 1955 I.C.J. 4,
¶¶ 21–23 (Apr. 6); Fisheries Jurisdiction (U.K. v. Ice.), Merits, 1974 I.C.J 3, at 24–26, ¶¶ 55–58 (July
25); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 I.C.J.
14, at 97–109, ¶¶ 183–207 (June 27) [hereinafter Nicaragua Case]; Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, at 259–61, ¶¶ 86, 88 (July 8) [hereinafter Nuclear
Weapons Advisory Opinion]; Gabcikovo-Nagymaros Project (Hung./Slovk.), 1997 I.C.J. 7, ¶¶ 49–54,
83, 85 (Sept. 25).
36.
Koplow, supra note 17, at 160.
37.
INT’L LAW ASS’N, supra note 16, at 7.
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Scharf
313
General Assembly Resolutions can thus be both a form of State practice and
a manifestation of the State’s subjective attitude about the existence of the
rule in question.38
State practice also includes inaction or silence, especially (but not
necessarily) where a protest would be expected. Thus, in the case of the
S.S. Lotus, the PCIJ relied on the absence of protest against legislation
based on the “objective territoriality” doctrine of jurisdiction in finding that
such an exercise of jurisdiction was permissible under customary
international law.39 Similarly, in the Nottebohm Case (second phase), the
ICJ based its decision on the fact that some States “refrain from exercising
protection in favor of a naturalized person when the latter has in fact, by his
prolonged absence, severed his links with what is no longer for him
anything but his nominal country . . . .”40
a. Claim and Response Verses Articulation and Act
Professor Myers McDougle of Yale Law School famously described
the customary international law formation process as one of continuous
claim and response.41 To illustrate this process, consider the question of
whether international law permits a State to use force to arrest a terrorist
leader in another State without the latter’s consent—a question that recently
arose when the United States kidnapped an al-Qaeda leader from Libya in
October 2013.42 The claim may be express, such as demanding that its
special forces be allowed to enter the territorial State to arrest the terrorist,
or implicit, such as sending its special forces into the territorial State
without its permission to apprehend the terrorist. The response to the claim
may in turn be favorable, such as consenting to the operation or refraining
from protesting the extraterritorial apprehension. In such case, the claim
and response will begin the process of generating a new rule of customary
international law. Some States may imitate the practice and others may
passively acquiesce in it.
“Custom pioneers” (the first State to initiate a new practice) have no
guarantee that their action will actually lead to the formation of a binding
custom. Indeed, the response may be a repudiation of the claim, as in the
38.
MENDELSON, supra note 27, at 201.
39.
S.S. Lotus, 1927 P.C.I.J. at 23.
40.
Nottebohm Case, 1955 I.C.J. at 22.
41.
See generally M.S. McDougal & N.A. Schlei, The Hydrogen Bomb Tests in Perspective:
Lawful Measures for Security, 64 YALE L. J. 648 (1955).
42.
Ernesto Londoño, Capture of Bombing Suspect in Libya Represents Rare ‘Rendition’ by
U.S. Military, WASHINGTON POST (Oct. 6, 2013), available at http://articles.washingtonpost.com/201310-06/world/42771116_1_kerry-terrorism-suspects-libyan-government (last visited Feb. 22, 2014).
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case of Libya’s protest of the un-consented apprehension of the al-Qaeda
operative.43 In such case, the repudiation could constitute a reaffirmation of
existing law, which is strengthened by the protest. Or, the claim and
repudiation could constitute a stalemate, which could decelerate the
formation of new customary international law. The reaction of Third States
is also relevant. Out of this process of claim and response, and third party
acquiescence or repudiation, rules emerge or are superseded. Just “as
pearls are produced by the irritant of a piece of grit entering an oyster’s
shell, so the interactions and mutual accommodations of States produce the
pearl—so to speak—of customary law.”44
Professor D’Amato, of Northwestern University, has proposed an
alternative formulation to explain the formation of customary rules,
focusing on what he calls “articulation” and “act.”45 In D’Amato’s view,
the articulation can either accompany the initial act (what McDougal called
the “claim”), or it can be embodied in a treaty, draft instruments of the ILC,
or resolutions of the U.N. General Assembly.46 Acts that follow and are
consistent with the articulation will crystallize the policy into a principle
that takes on life as a rule of customary international law.47 In other words,
once there is a consensus articulation that States ought to conform to a
given rule of conduct, a legal custom can emerge when some level of
spontaneous compliance with the rule is manifest.
Advocates of D’Amato’s approach have called it “modern custom.”48
In contrast with the inductive claim and response process McDougal
describes, so-called modern custom is “a deductive process that begins with
general statements of rules rather than particular instances of practice.”49
Where McDougal’s claim and response concept is backward looking,
D’Amato’s conception is more like treaty law, proscribing rules for the
future. Yet, of the two approaches, many scholars believe McDougal’s
claim and response concept better reflects the “authentic world of politics,
rather than some ideal world which may owe more to rhetoric than to
reality.”50
43.
Id.
44.
MENDELSON, supra note 27, at 190.
45.
ANTHONY A. D’AMATO, CONCEPT OF CUSTOM IN INTERNATIONAL LAW 88 (1971).
46.
Id.
47.
Id.
48.
Anthea E. Roberts, Traditional and Modern Approaches to Customary International Law:
A Reconciliation, 95 AM. J. INT’L L. 757, 757 (2001).
49.
Id. at 758.
50.
MENDELSON, supra note 27, at 190–91.
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b. General Verses Constant and Uniform Practice
Although the ICJ has spoken of “constant and uniform usage” as the
yardstick for ascertaining a customary rule,51 the Court has made clear that
perfect consistency is not required.
Based on its comprehensive
examination of the Court’s case law, the ILA has observed that “general
practice suffices” to generate customary rules binding on all States.52 In
Fisheries Jurisdiction, the Court stressed that “too much importance need
not be attached to the few uncertainties or contradictions” in State
practice.53
Similarly, the Court determined that although various
proclamations of an exclusive economic zone were not identical, they were
sufficiently similar for the Court to hold in the Continental Shelf cases
between Tunisia and Libya, and between Libya and Malta, that the
Exclusive Economic Zone (EEZ) had become part of customary
international law.54 And, in concluding that the rule against use of force in
the territory of another State was part of customary international law in the
1986 Nicaragua Case, the Court said:
[It] does not consider that, for a rule to be established as
customary, the corresponding practice must be in absolutely
rigorous conformity with the rule. In order to deduce the
existence of customary rules, the Court deems it sufficient that
the conduct of States should, in general, be consistent with such
55
rules . . . .
The ICJ has also spoken of the requirement of “extensive” practice,
and at the same time has indicated that the most important practice is that of
“States whose interests are specially affected.”56 This means discerning the
existence of a customary rule is not merely a numbers game; there is an
important qualitative aspect to the inquiry. In other words, it may be
enough that the practice be representative, so long as it includes States
whose interests are specially affected. Thus, in Continental Shelf
(Libya/Malta), the Court determined that, after several significant maritime
States had claimed EEZs, the EEZ had ripened into a rule of customary
international law despite the fact that a majority of eligible coastal States
51.
Asylum (Colom./Peru), 1950 I.C.J. 266, at 276 (Nov. 20).
52.
INT’L LAW ASS’N, supra note 16, at 24.
53.
Fisheries Jurisdiction (U.K. v. Nor.), 1951 I.C.J. 116, at 138 (Dec. 18).
54.
Continental Shelf (Tunis./Libya), 1982 I.C.J. 18, at 74, ¶100 (Feb. 24); Continental Shelf
(Libya/Malta), 1985 I.C.J. 13, at 33, ¶ 34 (June 3).
55.
Nicaragua Case, 1986 I.C.J. at 98, ¶ 186.
56.
North Sea Continental Shelf, 1969 I.C.J. at 43, ¶ 74.
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had not yet claimed an EEZ.57 Similarly, in the Frontier Dispute (Burkina
Faso/Mali), the Court held that uti possidetis was a rule of general
customary international law, even though at the time the principle was
supported only in the practice of Spanish American and African States
which did not constitute a majority of the international community.58
To understand the significance of specially affected States, Professor
Charles De Visscher of Ghent University likened the formation of custom
to the gradual wearing of a path through a field: “Among the users are
always some who mark the soil more deeply with their footprints than
others, either because of their weight . . . or because their interests bring
them more frequently this way.”59 This metaphor helps explain why the
most important States in the particular area of activity (which may or may
not be the most powerful States generally) should be accorded
extraordinary weight. A State especially active in an area will likely devote
more resources to thinking about and developing the applicable law. Thus,
the United States and United Kingdom were pioneers of the regime of the
continental shelf because their nationals were the first to be actively
engaged in offshore oil exploitation in areas beyond the territorial sea.60
Similarly, the United States and Soviet Union were pioneers of early space
law since they were the first States to be capable of such flight.61
Just as the practice of specially affected States can have a
disproportionate influence on the formation of new rules, so too can their
opposition prevent a rule from coming into being. A prominent example of
this is the successful opposition of the United States and other capitalexporting countries to the replacement of the “prompt, adequate and
effective” standard of compensation in cases of lawful expropriation, with a
lower standard of “just compensation” advocated by a majority of States.62
The ILA has concluded that “provided that participation is sufficiently
representative, it is not normally necessary for even a majority of States to
have engaged in the practice, provided that there is no significant dissent.”63
According to Professor Michael Barton Akehurst of Keele University,
57.
See generally Continental Shelf, 1985 I.C.J. at 13..
58.
Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. 554, at 564–65, ¶¶ 19–20 (Jan. 10). The
uti possidetis principle requires that a newly independent State respect preexisting external borders.
59.
C. DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW 155 (1968).
60.
See generally MICHAEL P. SCHARF, CUSTOMARY INTERNATIONAL LAW IN TIMES OF
FUNDAMENTAL CHANGE: RECOGNIZING GROTIAN MOMENTS 107–22 (2013).
61.
See generally id. at 123–38.
62.
M. H. Mendelson, What Price Expropriation? Compensation for Expropriation: The Case
Law, 79 AM. J. INT’L L. 414, 414 (1985).
63.
INT’L LAW ASS’N, supra note 16, at 25.
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where there is no evidence presented against a rule of customary
international law, a small amount of practice is sufficient to prove the
existence of such rule, resting the burden of disproving its existence on the
objecting party.64 Consistent with this, scholars who have carefully
dissected the judgments of the ICJ have concluded that “most customs are
found to exist on the basis of practice by fewer than a dozen States.”65
A final consideration is whether the situation is one of initial formation
of a customary rule or the alteration of existing customary law. Scholars
have argued that existing customs should not be lightly discarded. As
Professor Bederman explained, “there should be a higher threshold of
uniformity, consistency and volume of State practice in order to terminate
an old, well-settled customary rule, as opposed to creating a new one in a
hitherto unregulated realm of international relations.”66
c. The Persistent Objector Rule
The international community is not yet ready to accept a system in
which the majority, or a minority consisting of especially affected States,
can develop new rules of customary international law and also bind the
remaining States to the new rules over their objection. Thus, a state that
does not wish to acquiesce in the development of a new rule of customary
international law can rely on the so-called “persistent objector rule.”
Reflecting the voluntary nature of customary international law, a State
which manifests its opposition to a practice before it has developed into a
rule of customary international law can, by virtue of that objection, opt out
from the operation of the new rule.
While the persistent objector rule is of relatively modern recognition,
it has been treated by jurists and scholars as practically axiomatic.67 The
ICJ recognized the persistent objector rule in the Asylum Case, where the
Court stated, “[b]ut even if it could be supposed that such a custom existed
between certain Latin-American States only, it could not be invoked against
Peru which, far from having by its attitude adhered to it, has, on the
contrary, repudiated it . . . .”68 The Court also applied the rule in Fisheries
64.
M. Akehurst, Custom as a Source of International Law, 47 BRIT. YEAR BOOK OF INT’L
LAW 1, 12 (1974–1975).
65.
Weisburd).
66.
Roberts, supra note 48, at 767 (citing the works of Charney, Chodosh, Schacter, and
Bederman, supra note 14, at 38.
67.
MENDELSON, supra note 27, at 227 (citing the works of R. Y. Jennings, C. Rousseau,
J.H.W. Verzijl, I. Brownlie, G.I. Tunkin, H. Thirlway, M. Villiger, K. Wolfke, G. Danilenko, and C. van
Bynkershoek).
68.
Asylum, 1950 I.C.J. at 276.
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Jurisdiction, in rejecting the United Kingdom’s argument that customary
international law limited closing lines in bays to a length of ten miles.69
The Court stated, “[i]n any event the ten-mile rule would appear to be
inapplicable to Norway, inasmuch as she has always opposed any attempt
to apply it to the Norwegian coast.”70
The persistent objector rule has certain limits. First, if a State does not
make an objection at the time the general rule is emerging, it can be
considered bound despite subsequent manifestations of opposition.71
Second, customary international law rules are binding on new States and
existing States that are newcomers to a particular type of activity. There is
no “subsequent objector” rule available to such States.72 Third, the rule
does not apply to peremptory norms (jus cogens).73 Thus, although South
Africa persistently maintained that it was entitled to practice apartheid, the
international community accorded no weight to this objection. There have
been few instances of invocation of the persistent objector rule, but it is
nonetheless considered an important safety valve that permits the “convoy”
of customary international law to move forward without having to wait for
the slowest member.74
d. Treaties as Source of Custom
Treaties are binding on their parties, but they can also generate
customary rules binding on all States in three ways: First, treaties can
codify and elucidate customary international law. This may seem counterintuitive since traditionally, the purpose of treaties was to derogate from
existing customary law, not to confirm it. In the years since its
establishment by the U.N. General Assembly in 1945, however, the ILC has
promulgated a number of international conventions meant to transform
customary international law into treaty law. Yet, one should not assume
that every provision of a codifying treaty constitutes customary law. A
particular treaty might well contain some provisions meant to reflect
existing customary law, and others, which constitute progressive
development. Thus, in North Sea Continental Shelf, the ICJ found that
Article 6 (the equal distance rule) of the Geneva Convention on the
69.
Fisheries, 1951 I.C.J. at 116, ¶ 131.
70.
Id.
71.
INT’L LAW ASS’N, supra note 16, at 27.
72.
Id.
73.
Id. at 28.
74.
MENDELSON, supra note 27, at 240.
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Continental Shelf did not represent customary law, but that Articles 1 and 3
(concerning the regime of the continental shelf) did.75
Sometimes a treaty will expressly declare that its provisions, or certain
of them, are declaratory of existing customary law. For example, Article 1
of the Genocide Convention provides “[t]he Contracting Parties confirm
that genocide, whether committed in time of peace or in time of war, is a
crime under international law which they undertake to prevent and to
punish.”76 Such a provision is strong but not conclusive evidence, for in
some cases States have strategically included such provisions to bolster
their case vis-à-vis third parties.77 In other occasions the Treaty’s
negotiating record (travaux preparatoires) will indicate whether the Treaty
was intended as a codification or not. Even in the absence of such a
provision or reference in the negotiating record, Courts may find that a
provision of a treaty constitutes a codification of customary law. Thus, in
the Namibia Case, the ICJ held that “the rules laid down by the Vienna
Convention on the Law of Treaties concerning termination of a treaty
relationship on account of breach (adopted without a dissenting vote) may
in many respects be considered as a codification of existing customary law
on the subject” and went on to apply those rules as customary law to the
South-West Africa Mandate which predated the Vienna Convention.78
Second, the consensus formed through the process of treaty
negotiation can sometimes crystallize rules of customary international law
as reflected in the treaty text before the treaty comes into force. In North
Sea Continental Shelf, Denmark argued that “the process of the definition
and consolidation of the emerging customary law took place through the
work of the ILC, the reaction of governments to that work and the
proceedings of the Geneva Conference [on the Law of the Sea].”79 While
recognizing that treaty provisions could conceivably crystallize customary
law, the ICJ held that this was not the case with respect to Article 6 of the
Geneva Convention on the Continental Shelf.80 In contrast, in Continental
Shelf (Tunisia/Libya), the ICJ concluded that the recently concluded,
though not yet in force, 1982 Convention on the Law of the Sea
75.
North Sea Continental Shelf, 1969 I.C.J. ¶¶ 24–33.
76.
Convention Against Genocide, 78 U.N. Treaty Series, 278 (1948).
77.
See W.E. HALL, A TREATISE ON INTERNATIONAL LAW 9 (A. Pearce Higgins, 8th ed.,
1924) (listing examples of such treaties).
78.
Legal Consequences for States of Continued Presence of South Africa in Namibia,
Advisory Opinion, 1971 I.C.J. 16, at 47, ¶ 94 (June 21).
79.
North Sea Continental Shelf, 1969 I.C.J. at 52.
80.
Id. at 38, ¶¶ 61–62.
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“crystallizes” an “emergent rule of customary law.”81 The same principle
has been applied to draft Articles produced by the U.N.’s ILC experts after
years of study and debate, including comments by governments. Thus, the
ICJ concluded in Gabcikova-Nagymaros that the requirements for invoking
a state of necessity set out in the Draft Articles on State Responsibility
adopted on first reading by the ILC “reflect customary international law.”82
Third, a rule enshrined in a treaty may commend itself to States
generally, who then adopt it in practice even if they fail to become parties
to the treaty. For example, a treaty known as the 1856 Declaration of Paris
abolished privateering (government-sanctioned piracy against the vessels of
enemy States).83 While very few States became parties to the instrument, it
is widely recognized that the outlawry of privateering became a rule of
general customary law through State practice inspired by the Declaration.84
e. The Role of Judicial Decisions
Judicial decisions count both as a form of State practice within the
meaning of Article 38 of the Statute of the ICJ, and as a “subsidiary means
for the determination of rules of law” within paragraph (d) of that Article.85
Scholars debate whether this applies not just to decisions of domestic
courts, but to those of international tribunals as well.
On the one hand, Professor Maurice Mendelson, the Chair of the
ILA’s Customary International Law Committee, argues that decisions of
international tribunals should not be deemed State practice because
international judges are supposed to act independently of those appointing
them.86 The Max Planck Encyclopedia of Public International Law, on the
other hand, maintains that:
81.
Continental Shelf, 1982 I.C.J. at 54, ¶ 24.
82.
Gabcikovo-Nagymaros Project, 1997 I.C.J. ¶ 52.
83.
SCHARF, supra note 11, at 44.
84.
MENDELSON, supra note 27, at 193.
85.
In practice, the significance of decisions of international courts and tribunals is much
greater than what emerges from Article 38(1)(d) of the ICJ Statute, which characterizes judicial
decisions merely as “subsidiary means for the determination of rules of law.” Despite the absence of
formal stare decisis in this realm, international and domestic courts tend to rely on the precedents of
international tribunals, and States and parties to proceedings expect them to do so. Michael P. Scharf &
Margaux Day, The International Court of Justice’s Treatment of Circumstantial Evidence and Adverse
Inferences, 13 CHI. J. OF INT’L L. 123, 128 (2012). Moreover, international courts and tribunals can
assess the existence and contents of customary rules on the basis of an unparalleled amount of materials,
represented to them through written and oral pleadings, including annexes of relevant materials, very
often unearthed from archives for the purpose of the case. Treves, supra note 22, ¶ 55.
86.
MENDELSON, supra note 27, at 200. While this may be true of some international
tribunals, it is not necessarily the case with respect to the International Court of Justice. Where a case
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[A]s the authority of international courts and tribunals to settle a
dispute between States derives from agreement of the States
involved, judgments of such courts and tribunals may be seen,
indirectly, as manifestations of the practice of the States that have
agreed to confer on them such authority and the mandate to apply
87
international—including customary—law.
Moreover, as Professor Karol Wolfke of Wroclaw University in
Poland points out, “the fact that States accept the judgments and opinions of
judicial organs means that those decisions and opinions can themselves be
regarded as a form of State practice.”88 Consistent with this, in 1950, the
ILC included decisions of international courts in its list of primary sources
of customary international law.89
In Fisheries Jurisdiction, the ICJ stated that its role is to ascertain the
existence of rules of customary international law, not to create them.90 Yet,
the Court subsequently acknowledged its broader role in contributing to the
formation of customary international law in the Nuclear Weapons Advisory
Opinion, where the Court observed: “In stating and applying the law, the
Court necessarily has to specify its scope and sometimes note its general
trend.”91 Thus, Professor Anthea Roberts of London School of Economics
concludes that “judicial decisions can also have a formative effect on
custom by crystallizing emerging rules and thus influencing state
behavior.”92
involves the judge’s State of nationality, Article 31 of the ICJ Statute provides that the opposing party
may appoint an ad hoc judge to the bench so that both parties enjoy the same advantage. This implicitly
recognizes that international judges are prone to be particularly sympathetic to the interests of the
judge’s State of nationality. Nor would Mendelson’s observation apply to the Nuremberg Tribunal,
which was made up of judges representing the four great powers that emerged victorious at the end of
World War II. One of the criticisms of the Nuremberg Tribunal was that it represented victors’ justice
and that the judges were not sufficiently independent from their appointing States. See A. BRACKMAN,
THE OTHER NUREMBERG 63, 69 (1987); R. CONOT, JUSTICE AT NUREMEBERG 62 (1983); A. TUSA & J.
TUSA, THE NUREMBERG TRIAL 12 (1983).
87.
Treves, supra note 22, ¶ 53.
88.
INT’L LAW ASS’N, supra note 16, at 19.
89.
The International Law Commission listed the following sources as forms of evidence of
customary international law: Treaties, decisions of national and international courts, national
legislation, opinions of national legal advisors, diplomatic correspondence, and practice of international
organizations. 2 Y.B. INT’L L. COMM’N 367, U.N. Doc. A/CN.4/Ser.A/1950/Add.1 (1957).
90.
Fisheries Jurisdiction, 1974 I.C.J. ¶ 53 (The Court stressed that “the Court, as a court of
law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid
it down.”).
91.
Nuclear Weapons Advisory Opinion, 1996 I.C.J. ¶ 18.
92.
Roberts, supra note 48, at 775.
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2. The Subjective Element
The purpose of the subjective element, known as opinio juris, is to
differentiate State actions that give rise to legal norms from actions that do
not.93 The subjective element has been described as “the philosopher’s
stone which transmutes the inert mass of accumulated usage into the gold of
binding legal rules.”94 This element is necessary because State practice is
often capable of being interpreted in various ways. Examining subjective
intent is particularly important where actions (or omissions) are in and of
themselves ambiguous. For example, Professor D’Amato has said that
every breach of a customary law contains the seed for a new legality.95 But
that is only the case if the breaching State justifies its action on the basis of
a new rule of customary law. As the ICJ observed in the Nicaragua Case,
if instead the State resorts to factual or legal exceptions to justify the
breach, this has the effect of confirming the general rule rather than
undermining it or creating an exception to it.96
Moreover the subjective element can reveal actions that constitute
mere comity and distinguish those taken out of mere convenience from
those that count as precedents. Take, for example, the S.S. Lotus. There,
France argued that the dearth of prosecutions for collisions on the high seas
other than by the flag State on board which the wrongful act took place was
evidence that international law did not recognize “effects jurisdiction” in
such cases.97 The PCIJ disagreed on the ground that there was no evidence
of a “conscious[ness] of having a duty to abstain” from prosecuting officers
of ships of foreign registry for injuries to ships of domestic registry.98 The
reasons for lack of prosecution could just as easily have been based on lack
of interest or lack of domestic statutory authority as on a belief that such
prosecutions violated customary international law.
There are two vigorously contested schools of thought concerning the
nature and role played by the subjective element. The “voluntarist” thesis
maintains that, since States are sovereign, they cannot be bound by legal
obligations (whether through treaty or customary law) without their
consent. Consistent with this, voluntarists view the subjective element of
customary international law as a manifestation of consent. The competing
“belief” thesis maintains that custom’s binding force is based in the States’
93.
INT’L LAW ASS’N, supra note 16, at 10.
94.
H. THIRLWAY, INTERNATIONAL CUSTOMARY LAW AND CODIFICATION 47 (1972).
95.
D’AMATO, supra note 45, at 97–98.
96.
Nicaragua Case, 1986 I.C.J. at 98, ¶ 186.
97.
S.S. Lotus, 1927 P.C.I.J. at 28.
98.
Id.
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belief in the legal necessity or permissibility of the practice in question.
The controversy between supporters of the two approaches goes back more
than 200 years, and has continued to this day.99
The voluntarist thesis has been criticized for adopting the legal fiction
that silence is considered a form of acquiescence or tacit consent—a fiction
that is particularly hard to buy in cases where the particular State was not
directly affected by the conduct in question when the customary rule was
being formed.100 The belief thesis, in turn, has been criticized for failing to
explain how opinio juris can exist in the initial phase of State practice with
respect to a new rule. If it is the first State to assert a new rule, how can the
State seriously entertain the opinion that it is acting in accordance with the
law? Some commentators have tried to answer this criticism by suggesting
that the State could be acting in error, but “the truth is that the State which
introduces a new practice has in these cases no belief that its conduct is
permitted or required by existing law, and neither have the first States to
respond positively or negatively to its conduct.”101 As Judge Lachs
observed in his opinion in North Sea Continental Shelf, to require a
conviction that the conduct is already a matter of legal obligation is to deny
the possibility of developing new rules of customary law.102 It is more
likely in such a case that the pioneers of the customary rule know that they
are breaking new ground but purposely couch their innovation in the
language of existing law to make it more palatable to other States.103
Some scholars believe that the dichotomy between the two approaches
is a false one; that consent plays a role in some circumstances, and belief
does in others.104 Professor Mendelson, for example, maintains that the
voluntarist thesis is the better approach to the question of the formation of
customary rules, and the approach, which emphasizes belief, better explains
why mature customary rules are observed.105 Consistent with the words in
Article 38 of the Statute of the ICJ, “a general practice accepted as law,”
Mendelson suggests that in the early formation stage “acceptance” means
consent to an emerging rule, and in the later stage “acceptance” means
acknowledgment that the rule has gained the force of law.106 Moreover, he
99.
100.
MENDELSON, supra note 27, at 246 n.244 (citing diametrically opposed articles).
INT’L LAW ASS’N, supra note 16, at 39.
101.
MENDELSON, supra note 27, at 280.
102.
North Sea Continental Shelf, 1969 I.C.J. at 218, 231.
103.
This was the case of the United States formulation of the Truman Declaration, which
created the legal concept of the continental shelf in 1945. See SCHARF, supra note 11, at 5.
104.
MENDELSON, supra note 27, at 248.
105.
Id. at 283.
106.
Id.
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stresses that such an acknowledgment need not come from States alone, but
could emanate from a tribunal107 or from a resolution of the U.N. General
Assembly.108
3. The Role of General Assembly Resolutions
One of the most striking developments related to the formation of
customary international law in modern times has been the year-round
functioning of international organizations and their various organs. This
gives States many more occasions than they used to have to express views
as to customary international law. In recent years there has been a stream
of resolutions from international organizations, especially the U.N. General
Assembly, purporting to set forth, confirm, or reaffirm rules of customary
international law. Consistent with the premise that words count as State
practice, some jurists and scholars have argued that, when adopted
unanimously or by large majorities, General Assembly resolutions can
constitute both the objective and subjective elements necessary to establish
customary international law, and thereby can create so-called “instant
custom.”109
There are five main criticism of the so-called “instant custom” theory.
The first is that the U.N. Charter employs the language of “recommend” in
referring to the powers and functions of the General Assembly, as distinct
from the powers granted to the Security Council to issue binding
decisions.110 The negotiating record of the U.N. Charter confirms that the
drafters intended for General Assembly resolutions to be merely nonbinding recommendations. In fact, at the San Francisco Conference in
1945, when the Philippines delegation proposed that the General Assembly
107.
Id. at 396 (Mendelson points out that in “certain innovative decision” such as the 1951
Fisheries Jurisdiction case, the Reservations to the Genocide Convention cases, and the Nottebohm
Case, “it would not be far from the truth to say that the ICJ made new law.”).
108.
MENDELSON, supra note 27, at 283.
KHURSHID IQBAL, THE RIGHT TO DEVELOPMENT IN INTERNATIONAL LAW: THE CASE OF
PAKISTAN 120 (2010); in his dissenting opinion in the South West Africa Cases (Eth. v. S. Afr.), 1966
I.C.J. Rep. 248, 291–93, Judge Tanaka argued that when a court is trying to discern whether a certain
customary norm of international law exists, General Assembly Resolutions can be used as evidence of
general practice. Id. at 291. He suggested that the General Assembly can accelerate the formation of
customary law by serving as a forum in which a state “has the opportunity, through the medium of the
organization, to declare its position to all members of the organization and to know immediately their
reaction on the same matter.” Id.
109.
110.
See generally U.N. Charter arts. 10–11.
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be vested with legislative authority to enact rules of international law, the
other delegations voted down the proposal by an overwhelming margin.111
The second problem is that General Assembly resolutions often do not
clearly differentiate between what the law is (lex lata) and what the law
should be (lex ferenda). Often resolutions reflect lex ferenda cloaked as lex
lata. Citing the Manila Declaration on the Peaceful Settlement of
International Disputes112 as an example, Professor Roberts observes that
General Assembly resolutions “often reflect a deliberate ambiguity between
actual and desired practice, designed to develop the law and to stretch the
consensus on the text as far as possible.”113
The third problem is that States often vote for General Assembly
resolutions to embellish their image or carry favor with other States,
without the expectation that their votes will be deemed acceptance of a new
rule of law. For example, the United States initially opposed the draft of
General Assembly Resolution 1803, which mandated “appropriate
compensation” following an expropriation because the United States felt
that the correct standard should be “prompt, adequate, and effective”
compensation.114 Yet, the United States ultimately voted in favor of the
resolution in a spirit of compromise.115 ICJ Judge Stephen Schwebel has
referred to this type of practice as “fake consensus.”116
The fourth problem is that even if statements and votes in the General
Assembly can qualify as either State practice or manifestations of opinio
juris, counting the same action as both presents a skewed picture. Related
to this, the fifth problem with an approach that focuses exclusively on
words contained in non-binding General Assembly Resolutions is “that it is
111.
Gregory J. Kerwin, The Role of United Nations General Assembly Resolutions in
Determining Principles of International Law in United States Courts, 1983 DUKE L. J. 876, 879 (1983).
112.
G.A. Res. 37/10, U.N. Doc. A/RES/37/10 (Nov. 14, 1982).
113.
Roberts, supra note 48, at 763.
114.
G.A. Res.1803 (XVII), 17 U.N. GAOR Supp. (No.17) at 15, U.N. Doc. A/5217 (Dec. 14,
1962); Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875, 890 (2d Cir. 1981).
115.
Banco Nacional de Cuba, 658 F.2d at 890 (Opining that General Assembly Resolutions
“are of considerable interest” but they “do not have the force of law;” the Court held that expropriation
requires “prompt, adequate, and effective compensation” rather than the standard of “appropriate
compensation” reflected in General Assembly Resolution 1803.).
116.
Stephen M. Schwebel, The Effect of Resolutions of the U.N. General Assembly on
Customary International Law, 73 AM. SOC’Y. OF INT’L. L. PROC. 301, 308 (1979). Schwebel has
observed that members of the U.N.:
Often vote casually . . . States often don’t meaningful support what a resolution
says and they almost always do not mean that the resolution is law. This may be
as true or truer in the case of unanimously adopted resolutions as in the case of
majority-adopted resolutions. It may be truer still of resolutions adopted by
consensus. Id. at 302.
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grown like a flower in a hot-house and that it is anything but sure that such
creatures will survive in the much rougher climate of actual state
practice.”117 Elsewhere I have argued that outside of situations covered by
treaties with a “prosecute or extradite” requirement, the so-called “duty to
prosecute” crimes against humanity, recognized in non-binding General
Assembly resolutions, is a chimera.118 A “rule” that is based only on
General Assembly resolutions is unlikely to achieve substantial compliance
in the real world, and therefore will end up undermining rather than
strengthening the rule of law. As Professor Roberts puts it, “deducing
modern custom purely from opinio juris can create utopian laws that cannot
regulate reality.”119
On the other hand, General Assembly resolutions share with treaties
the advantage of being written documents whose contents can be expressed
with precision. While it is a radical position to argue that such resolutions
constitute autonomous sources of international law, few scholars would
dispute that General Assembly resolutions can codify and elucidate existing
rules or inspire future development of customary international law in the
same way that a multinational treaty can. More controversial is the
question of whether the adoption of General Assembly Resolutions can play
a role in crystallizing emerging rules of customary international law120—a
phenomenon colorfully described by Professor David Koplow of
Georgetown as “helping to midwife the development of new norms of
customary international law.”121 In the words of the Institute of
International Law, “where a rule of customary law is (merely) emerging or
there is still some doubt as to its status, a unanimous resolution can
consolidate the custom and remove doubts which might have existed.”122
While some scholars have argued that “customary law without custom
(practice) is a contradiction in terms,” the ILA has pointed out that since
statements are a form of State practice, how a State votes and how it
117.
Simma, supra note 1, at 217.
118.
Michael P. Scharf, Swapping Amnesty for Peace: Was there a Duty to Prosecute
International Crimes in Haiti?, 31 TEX. INT’L. L.J. 1, 41 (1996) (citing examples of adverse state
practice where amnesty is traded for peace, thus disproving the existence of a customary rule requiring
prosecution in the absence of a treaty with a prosecute or extradite provision).
119.
Roberts, supra note 48. Similarly, Niels Petersen of the Max Planck Institute has stated
the reason for requiring practice as a constituent element of customary law is that “law should not
consist of abstract, utopian norms, but rather be affiliated with social reality.” Niels Peterson,
Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International
Norm Creation, 23 AM. U. INT’L L. REV. 275, 301 (2008).
120.
Jonathan I. Charney, Universal International Law, 87 AM. J. INT’L L. 529, 547 (1993).
121.
Koplow, supra note 17, at 162.
122.
INT’L LAW ASS’N, supra note 16, at 64.
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explains its vote in the General Assembly is a form of practice that can
generate customary law.123 Then if emergent practice exists outside the
resolution, the adoption of the resolution can serve as a collective
expression of opinio juris that can crystallize the rule. In either case, “if
governments choose to take their formal stance by means of a General
Assembly resolution, there is no a priori reason why this should not
count.”124 Consistent with this, in the Nuclear Weapons Advisory Opinion,
the ICJ noted “that General Assembly resolutions, even if they are not
binding, may sometimes have normative value.”125
In deciding whether to treat a particular General Assembly resolution
as evidence of an emergent rule of customary international law, the ICJ has
stated that “it is necessary to look at its content and the conditions of its
adoption.”126 In examining these factors, courts often consider the type of
resolution to be significant. General Assembly resolutions fall within a
spectrum, from mere “recommendations” (usually given little weight) to
“Declarations” (used to impart increased solemnity) to “affirmations” (used
to indicate codification or crystallization of law).127 Courts also consider
the words used in the resolution; for example, language of firm obligation
versus aspiration.128 In the same way that the amount of practice required
to modify or overturn an existing rule will be greater than in cases where
the matter has not previously been the subject of specific regulation in
international law, General Assembly resolutions addressing “virgin
territory” are better candidates for becoming law than those which counter
existing rules.129
Another important consideration is the vote outcome.
While
resolutions passed unanimously or by sizable majorities could potentially
have a law-generating affect, the existence of significant dissent, numerous
abstentions, or even the objection of a handful of States that play an
important part in the activities in question would prevent the crystallization
123.
Id. at 41.
124.
Id. at 63.
125.
Nuclear Weapons Advisory Opinion, 1996 I.C.J. at 226.
126.
Id. at 254–55.
127.
General Introduction to the Standard-Setting Instruments of UNESCO, UNESCO,
http://portal.unesco.org/en/ev.php-URL_ID=23772&URL_DO=DO_TOPIC&URL_SECTION=201.html
(last visited May 11, 2014); see also Noelle Lenoir, Universal Declaration on the Human Genome and
Human Rights: The First Legal and Ethical Framework at the Global Level, 30 COLUM. HUM. RTS. L.
REV. 537, 551 (1999); Major Robert A. Ramey, Armed Conflict on the Final Frontier: The Law of War in
Space, 48 A.F.L. REV. 1, 110 (2000).
128.
Robert Rosenstock, The Declaration of Principles of International Law Concerning
Friendly Relations: A Survey, 65 AM. J. INT’L. L. 713, 715–16 (1971).
129.
INT’L LAW ASS’N, supra note 16, at 65.
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from taking place.130 While one might be tempted to treat consensus
resolutions (adopted without an actual vote) the same as those adopted
unanimously, consensus resolutions may be discounted because countries
often are pressured to remain silent (even if they have objections) so as not
to break consensus.131 The ICJ has also indicated that if a State expressly
mentions, while voting for a particular General Assembly Resolution, that it
regards the text as being merely a political statement without legal content,
then that resolution may not be invoked against it.132 For these reasons,
fears that conferring upon General Assembly resolutions a role in the
formation of customary law will transform the General Assembly into a
world legislature and lead to tyranny of the majority are misplaced.
In the Nicaragua Case, the ICJ appears to have treated General
Assembly Resolution 2625, the Declaration of Principles of International
Law concerning Friendly Relations and Co-operation among States, as a
resolution that generated customary international law.133 The Court stated
that:
[T]he effect of consent to the text of such resolutions cannot be
understood as merely that of a ‘reiteration or elucidation’ of the
treaty commitment undertaken in the Charter. On the contrary, it
may be understood as an acceptance of the validity of the rule or
134
set of rules declared by the resolutions by themselves.
4. The Sliding Scale Theory
Washington and Lee Law Professor Frederic Kirgis suggests that there
is a “sliding scale” relation between the amount of practice and opinio juris
needed to produce a rule of customary international law.135 The greater the
quantity of concordant practice, he argues, the less the need for evidence of
opinio juiris. “At the other end of the scale, a clearly demonstrated opinio
juris establishes a customary rule without much (or any) affirmative action
showing that governments are consistently behaving in accordance with the
130.
Nuclear Weapons Advisory Opinion, 1996 I.C.J. at 255.
131.
Schwebel, supra note 116, at 302.
132.
Nicaragua Case, 1986 I.C.J. at 106–07.
133.
Id.
134.
Id. at 99, ¶ 188.
135.
Frederic. L. Kirgis, Jr., Custom on a Sliding Scale, 81 AM. J. INT’L L. 146, 149 (1987).
For other scholars that have endorsed Kirgis’ sliding scale concept, see John Tasioulas, In Defense of
Relative Normativity: Communitarian Values and the Nicaragua Case, 16 OXFORD J. OF LEGAL STUD.
85, 109 (1996); MENDELSON, supra note 27, at 386
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asserted rule.”136 Professor Anthea Roberts criticizes Kirgis’ concept
because it tends to overemphasize one component at the expense of the
other, potentially justifying instant customary law based solely on
unanimously adopted General Assembly Resolutions.137
Taking an intermediate position, Professor Mendelson believes that
Kirgis’ sliding scale concept is particularly apt for areas not specifically
regulated in international law. Citing the U.N. General Assembly
resolutions on the rules governing exploration of outer space, Mendelson
states that in such areas “the solemn enunciation of rules by which States as
a whole intend to conduct themselves in the future should be binding.”138
Echoing this view, referring to the legal status of General Assembly
Resolution 95(I) endorsing the Nuremberg Principles, the Israeli Supreme
Court stated in the 1962 Eichmann case that:
[I]f fifty-eight nations [i.e., all the members of the UN at the
time] unanimously agree on a statement of existing law, it would
seem that such a declaration would be all but conclusive evidence
of such a rule, and agreement by a large majority would have
139
great value in determining what is existing law.
III. THE GROTIAN MOMENT CONCEPT
In domestic law, we know what stages legislation needs to go through
and how many votes are needed at each stage for a bill to become a law.
Likewise for international conventions, we know what formalities must be
undertaken for a text to become a treaty and the number of ratifications
required to bring it into force. In contrast, as discussed above, there exists
no agreed upon formula for identifying with precision how many States are
needed and how much time must transpire to generate a rule of customary
international law.140
Professor Mendelson suggests that such a formula is unnecessary.
Using the metaphor of building a house, he points out that it is often
difficult or impossible to say exactly when construction has reached the
point that we can conclude a house has been created. It is neither when the
first foundation stone is laid nor when the last brush of paint has been
136.
Kirgis, Jr., supra note 135, at 149.
137.
Roberts, supra note 48, at 774.
138.
MENDELSON, supra note 27, at 386.
139.
Attorney-General of Israel v. Eichmann, 36 I.L.R. 277, ¶ 11 (May 29, 1962).
140.
D’AMATO, supra note 45, at 58 (noting that there is no consensus as to how much time a
practice must be maintained to evidence the existence of a custom); Tunkin, supra note 2, at 420
(arguing that the element of time is not dispositive as to whether a customary rule exists).
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applied, but somewhere between the two. “Do we have to wait for the roof
to go on, for the windows to be put in, or for all of the utilities to be
installed? So it is with customary law.”141 Rarely does a decision maker
need to know the exact moment that a practice has crystallized into a
binding rule, or as Mendelson puts it “precisely when the fruit became
ripe.” Instead, he concludes, “we are more interested in knowing, when we
bite it, if it is now ripe or still too hard or sour.”142
Mendelson’s metaphor is apt, for example, in examining when the
continental shelf concept became customary international law. President
Truman proclaimed the continental shelf concept in 1945; the 1958 Geneva
Convention on the Continental Shelf recognized this entitlement on the part
of coastal States, and in 1969 the ICJ acknowledged that the principle was
part of customary international law in North Sea Continental Shelf.143
Somewhere during those twenty-four years between 1945 and 1969, the
coastal States’ rights over the continental shelf had crystallized into
customary international law, but it would be difficult to pinpoint the exact
moment that occurred.
But sometimes courts need to determine more definitively when an
emerging norm has ripened into binding customary international law. The
Cambodia Tribunal’s determination of whether Joint Criminal Enterprise
Liability existed as a principle of customary international law in 1975 is
illustrative.
A.
Nuremberg as Grotian Moment
During a sabbatical in the fall of 2008, I had the unique experience of
serving as Special Assistant to the International Prosecutor of the
Extraordinary Chambers in the Courts of Cambodia, the tribunal created by
the U.N. and government of Cambodia to prosecute the former leaders of
the Khmer Rouge for the atrocities committed during their reign of terror
1975 to 1979.144 While in Phnom Penh, my most important assignment was
141.
MENDELSON, supra note 27, at 175.
142.
Id. at 176.
143.
North Sea Continental Shelf, 1969 I.C.J. at 3; White House News Release, President
Truman’s Proclamations on U.S. Policy Concerning Natural Resources of Sea Bed and Fisheries on
High Seas (Sept. 28, 1945), available at http://www.ibiblio.org/pha/policy/post-war/1945-09-28a.html
(last visited May 12, 2014).
144.
For background on the creation of the ECCC, see generally Michael P. Scharf, Tainted
Provenance: When, If Ever, Should Torture Evidence be Admissible?, 65 WASH. & LEE L. REV. 129
(2008).
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to draft the Prosecutor’s brief145 in reply to the Defense Motion to Exclude
Joint Criminal Enterprise (JCE) liability as a mode of liability from the trial
of the five surviving leaders of the Khmer Rouge.146
JCE is a form of liability somewhat similar to the Anglo-American
“felony murder rule,”147 and the “Pinkerton rule,”148 in which a person who
willingly participates in a criminal enterprise can be held criminally
responsible for the reasonably foreseeable acts of other members of the
criminal enterprise even if those acts were not part of the plan. Although
few countries around the world apply principles of co-perpetration similar
to the felony murder rule or Pinkerton rule, since the decision of the
Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia in the 1998 Tadic case,149 it has been accepted that JCE is a
mode of liability applicable to international criminal trials. Dozens of cases
before the Yugoslavia Tribunal, the International Criminal Tribunal for
Rwanda, the Special Court for Sierra Leone, the Special Panels for the Trial
of Serious Crimes in East Timor, and the Special Tribunal for Lebanon
have recognized and applied JCE liability during the last ten years.
These modern precedents, however, were not directly relevant to the
Cambodia Tribunal because the crimes under its jurisdiction had occurred
some twenty years earlier. Under the international law principle of nulem
crimin sine lege (the equivalent to the U.S. Constitution’s ex post facto law
prohibition), the Cambodia Tribunal could only apply the substantive law
and associated modes of liability that existed as part of customary
international law in 1975. Therefore, the question at the heart of the brief
145.
Co-Prosecutors’ Supplementary Observations on Joint Criminal Enterprise, Case of Ieng
Sary, No. 002/19-09-2007-ECCC/OCIJ, 31 December 2009. A year later, the Co-Investigating Judges
ruled in favor of the Prosecution that the ECCC could employ JCE liability for the international crimes
within its jurisdiction. See Order on the Application at the ECCC of the Form of Liability Known as
Joint Criminal Enterprise, Case No. 002/19-09-2007-ECCC-OCIJ, 8 December 2009.
146.
Pursuant to the Co-Investigating Judges’ Order of 16 September 2008, the Co-Prosecutors
filed the brief to detail why the extended form of JCE liability, “JCE III,” is applicable before the
ECCC. The Defense Motion argued in part that JCE III as applied by the Tadic decision of the
International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber is a judicial
construct that does not exist in customary international law or, alternatively, did not exist in 1975–79.
Case of Ieng Sary, Ieng Sary’s Motion against the Application at the ECCC of the Form of
Responsibility Known as Joint Criminal Enterprise, Case No. 002/19-09-2007-ECCC/OCIJ, 28 July,
2008, ERN 00208225-00208240, D97.
147.
For background about, and cases applying, see generally David Crump & Susan Waite
Crump, In Defense of the Felony Murder Doctrine, 8 HARV. J.L. & PUB. POL’Y 359 (1985).
148.
For background about, and cases applying the Pinkerton Rule, see generally Matthew A.
Pauley, The Pinkerton Doctrine and Murder, 4 PIERCE L. REV. 1 (2005).
149.
Prosecutor v. Tadic, Case No. IT-94-1-I, Judgment, (Int’l Crim. Trib. for the Former
Yugoslavia July 15, 1999).
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that I drafted was whether the Nuremberg Tribunal precedent and the
U.N.’s adoption of the “Nuremberg Principles” were sufficient to establish
JCE liability as part of customary international law following World War II.
The attorneys for the Khmer Rouge Defendants argued that
Nuremberg and its progeny provided too scant a sampling to constitute the
widespread state practice and opinio juris required to establish JCE as a
customary norm as of 1975.150 In response, the Prosecution brief I drafted
maintained that Nuremberg constituted “a Grotian Moment”—an instance
in which there is such a fundamental change to the international system that
a new principle of customary international law can arise with exceptional
velocity. This was the first time in history that the term was used in a
proceeding before an international court. Despite the dearth of State
practice, the Cambodia Tribunal ultimately found JCE applicable to its
trials based on the Nuremberg precedent and U.N. General Assembly
endorsement of the Nuremberg Principles.151
While the Nuremberg trials were not without criticism, there can be no
question that Nuremberg represented a paradigm-shifting development in
international law. The ILC has recognized that the Nuremberg Charter and
Judgment gave birth to the entire international paradigm of individual
criminal responsibility.
Prior to Nuremberg, the only subjects of
international law were States, and what a State did to its own citizens within
its own borders was its own business. Nuremberg fundamentally altered
that conception. “International law now protects individual citizens against
abuses of power by their governments [and] imposes individual liability on
government officials who commit grave war crimes, genocide, and crimes
against humanity.”152 The ILC has described the principle of individual
responsibility and punishment for crimes under international law
recognized at Nuremberg as the “cornerstone of international criminal law”
and the “enduring legacy of the Charter and Judgment of the Nuremberg
Tribunal.”153
150.
I.C.J. ¶ 77.
For the definition of “customary international law,” see North Sea Continental Shelf, 1969
151.
In Case 002, the ECCC Pre-Trial Chamber later confirmed that JCE I and JCE II reflected
customary international law as of 1976, but questioned whether JCE III was actually applied at
Nuremberg, and therefore was not applicable to the ECCC trial. Decision on the Appeals Against the
Co-Investigative Judges’ Order on Joint Criminal Enterprise (JCE), Ieng et al. (002/10-09-2007ECCC/TC), Trial Chamber, 17 June, 2011.
152.
Slaughter & Burke-White, supra note 9, at 13.
153.
See Rep. of the Int’l Law Comm’n on the Work of its Forty-Eighth Session, 51st Sess.,
May 6–July 26, 1996, U.N. Doc. A/51/10; GAOR, 51st Sess., Supp. No. 10 (1996), available at
http://legal.un.org/ilc/documentation/english/A_51_10.pdf (last visited Feb. 22, 2014).
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Importantly, on December 11, 1946, in one of the first actions of the
newly formed U.N., the General Assembly unanimously affirmed the
principles from the Nuremberg Charter and judgments in Resolution
95(I).154 This General Assembly Resolution had all the attributes of a
resolution entitled to great weight as a declaration of customary
international law: It was labeled an “affirmation” of legal principles; it
dealt with inherently legal questions; it was passed by a unanimous vote;
and none of the members expressed the position that it was merely a
political statement.155
Despite the fact that Nuremberg and its Control Council Law #10
progeny consisted of only a dozen separate cases tried by a handful of
courts over a period of just three years, the ICJ,156 the International
Criminal Tribunal for the Former Yugoslavia,157 the European Court of
154.
Affirmation of the Principles of International Law Recognized by the Charter of the
Nürnberg Tribunal, G.A. Res. 95(I), U.N. GAOR, 1st Sess., U.N. Doc A/236, pt. 2, at 1144, (Dec. 11,
1946),
available
at
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/95(I)&Lang=
E&Area=RESOLUTION (last visited Feb. 22, 2014). The Resolution states in whole:
The General Assembly,
Recognizes the obligation laid upon it by Article 13, paragraph 1, sub-paragraph
a, of the Charter, to initiate studies and make recommendations for the purpose of
encouraging the progressive development of international law and its
codification;
Takes note of the Agreement for the establishment of an International Military
Tribunal for the prosecution and punishment of the major war criminals of the
European Axis signed in London on 8 August 1945, and of the Charter annexed
thereto, and of the fact that similar principles have been adopted in the Charter of
the International Military Tribunal for the trial of the major war criminals in the
Far East, proclaimed at Tokyo on 19 January 1946;
Therefore,
Affirms the principles of international law recognized by the Charter of the
Nuremberg Tribunal and the judgment of the Tribunal;
Directs the Committee on the codification of international law established by the
resolution of the General Assembly of 11 December 1946, to treat as a matter of
primary importance plans for the formulation, in the context of a general
codification of offenses against the peace and security of mankind, or of an
International Criminal Code, of the principles recognized in the Charter of the
Nürnberg Tribunal and in the judgment of the Tribunal. Id.
155.
See supra notes 126–132 and accompanying text.
156.
Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, 172 (July 9).
157.
Prosecutor v. Tadic, Case No. IT-94-1-I, Opinion and Judgment, Trial Chamber, ¶ 623
(Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997); Prosecutor v. Tadic, Case No. IT-94-1-I,
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 141 (Int’l Crim. Trib. for the
Former Yugoslavia Oct. 2, 1995).
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Human Rights,158 and several domestic courts159 have cited the General
Assembly Resolution affirming the principles of the Nuremberg Charter
and judgments as an authoritative declaration of customary international
law.
Nuremberg, then, constitutes a prototypical Grotian Moment. The
Tribunal’s formation was in response to the most heinous atrocity in the
history of humankind—the extermination of six million Jews and several
million other “undesirables” by the Nazi regime. From a conventional view
of customary international law formation, the amount of State practice was
quite limited, consisting only of the negotiation of the Nuremberg Charter
by four States, its accession by nineteen others, the judgment of the
Tribunal, and a General Assembly Resolution endorsing (though not
enumerating) its principles. Moreover, the time period from the end of the
war to the General Assembly endorsement of the Nuremberg Principles was
a mere year, a drop in the bucket compared to the amount of time it
ordinarily takes to crystallize customary international law. Yet, despite the
limited state practice and minimal time, the ICJ, European Court of Human
Rights, and four international criminal tribunals have confirmed that the
Nuremberg Charter and Judgment immediately ripened into customary
international law.
The Grotian Moment concept rationalizes this outcome. Nuremberg
reflected a novel solution to unprecedented atrocity in the context of
history’s most devastating war. Beyond the Nuremberg trial, there was a
great need for universal implementation of the Nuremberg Principles. Yet,
on the eve of the Cold War, it was clear that a widely ratified multilateral
convention would not be a practicable near term solution. In fact, it would
take half a century before the international community was able to conclude
158.
The European Court of Human Rights recognized the “universal validity” of the
Nuremberg principles in Kolk and Kislyiy v. Estonia, which stated:
Although the Nuremberg Tribunal was established for trying the major war
criminals of the European Axis countries for the offences they had committed
before or during the Second World War, the Court notes that the universal
validity of the principles concerning crimes against humanity was subsequently
confirmed by, inter alia, resolution 95 of the United Nations General Assembly
(11 December 1946) and later by the International Law Commission.
See Kolk and Kislyiy v. Estonia, App. No. 23052/04, 24018/04, Decision on Admissibility, Eur. Ct. H.R.
(Jan. 17, 2006).
159.
The General Assembly resolution affirming the Nuremberg Principles has been cited as
evidence of customary international law in cases in Canada, Bosnia, France, and Israel. See R. v. Finta,
[1994], 1 S.C.C. 701 (Can.); Prosecutor v. Ivica Vrdoljak, Court of Bosnia and Herzegovina, 10 July
2008; see generally Leila Sadat Wexler, The Interpretation of the Nuremberg Principles by the French
Court of Cassation: From Touvier to Barbie and Back Again, 32 COLUM. J. TRANSNAT’L L. 289 (1994)
(summarizing the Touvier and Barbie cases in French courts).
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a widely ratified treaty transforming the Nuremberg model into a permanent
international criminal court. It is this context of fundamental change and
great need for a timely response that explains how Nuremberg could so
quickly and universally be accepted as customary international law.
B.
Other Examples of Grotian Moments Since World War II
As the Max Planck Encyclopedia of Public International Law has
observed, “recent developments show that customary rules may come into
existence rapidly.”160 The venerable publication goes on to explain:
This can be due to the urgency of coping with new developments
of technology, such as, for instance, drilling technology as
regards the rules on the continental shelf, or space technology as
regards the rule on the freedom of extra-atmospheric space. Or it
may be due to the urgency of coping with widespread sentiments
of moral outrage regarding crimes committed in conflicts such as
those in Rwanda and Yugoslavia that brought about the rapid
formation of a set of customary rules concerning crimes
161
committed in internal conflicts.
Consistent with this observation, Chapter Five of my book, Customary
International Law in Times of Fundamental Change: Recognizing Grotian
Moments, recounts the history of President Truman’s 1945 Proclamation
that the resources on the continental shelf off the coast of the United States
belonged to the United States. This represented a major departure from the
existing customary international law of the sea. The Proclamation was
driven by technological developments enabling exploitation of offshore oil
and gas supplies and the intense post-war demand for such resources for a
rebuilding world. Though the United States recognized that it was acting as
a custom pioneer, it was careful to couch its justification in legal terms that
would render the action easier to accept and replicate by other States.
Despite the far-reaching change it represented, the Truman Proclamation
was met with no protest; rather, within five years, half of the world’s
coastal States had made similar claims to the resources of their continental
shelves, leading commentators to declare that the continental shelf concept
had become virtually instant customary international law. By 1969, the ICJ
had confirmed that the Truman Declaration quickly generated customary
international law binding on States that had not ratified the 1958 Law of the
Sea Convention.
160.
Treves, supra note 22, ¶ 24; accord INT’L LAW ASS’N, supra note 16, at 20.
161.
Id.
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Chapter Six of my book examines the customary international law that
rapidly emerged from the great leaps in rocket technology in the 1960s, led
by the Soviet Union and the United States, inaugurating the era of space
flight. Rather than treat outer space like the high seas, the international
community embraced a unique set of rules to govern this new area as
codified in the General Assembly Declaration on Outer Space, which was
unanimously approved in 1963. Though the amount of State practice was
limited to a few dozen space flights launched by two States and the lack of
protest by the States over which these rockets passed, States and scholars
have concluded that the 1963 Declaration represented an authoritative
statement of customary international law that rapidly formed in response to
new technologies requiring a new international law paradigm.
Chapter Seven analyzes the customary international law that rapidly
emerged from the Yugoslavia Tribunal in the 1990s. The establishment of
the Yugoslavia Tribunal was made possible because of a unique
constellation of events at the end of the Cold War, which included the
break-up of the Soviet Union, Russia’s assumption of the Soviet seat in the
Security Council, and the return of genocide to Europe for the first time
since Nazi Germany. In its inaugural case, the Appeals Chamber of the
Yugoslavia Tribunal rendered a revolutionary decision that for the first time
held that individuals could be held criminally liable for violations of
Common Article 3 and Additional Protocol II of the Geneva Conventions
for war crimes committed in internal conflict. This decision closed a
gaping gap in the coverage of international humanitarian law and was soon
thereafter affirmed by the Rwanda Tribunal and Special Court for Sierra
Leone. It was codified in the 1998 Statute of the International Criminal
Court, which has been ratified by 122 States.
These case studies suggest that the Grotian Moment concept has
several practical applications. It can explain the rapid formation of
customary rules in times of rapid flux, thereby imbuing those rules with
greater repute. It can counsel governments when to seek the path of a U.N.
General Assembly resolution as a means of facilitating the formation of
customary international law, and how to craft such a resolution to ensure
that it is viewed as a capstone in the formation of such customary rules. It
can in apt circumstances strengthen the case for litigants arguing the
existence of a new customary international rule. It can also furnish
international courts the confidence to recognize new rules of customary
international law in appropriate cases despite a relative paucity and short
duration of State practice.
At the same time, one must approach the Grotian Moment concept
with caution. As one author warns, “[i]t is always easy, at times of great
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international turmoil, to spot a turning point that is not there.”162 Thus, it is
with the case studies examined in Chapters Eight and Nine of my book,
which also manifested many of the attributes of a Grotian Moment, but in
each careful examination revealed that an essential ingredient was lacking
to bring the crystallization of customary international law to realization.
As Chapter Eight of my book details, in contrast to earlier cases of
unilateral humanitarian intervention, which had been met with widespread
condemnation, the North Atlantic Treaty Organization (NATO) airstrikes
against Serbia to protect Kosovar Albanians from ethnic cleansing in 1999
engendered widespread support by the international community. In its
formulation of the Responsibility to Protect Doctrine two years later, the
Report of the International Commission on Intervention and State
Sovereignty (ICISS) provided a novel legal veneer for unilateral
humanitarian intervention that seemed poised to quickly develop into
customary international law. But the principal States behind the NATO
intervention retreated from the position that their acts were a lawful
exercise of unilateral humanitarian intervention, emphasizing instead the
exceptional nature of the military operation. These statements effectively
slowed momentum for the ripening of a new rule of customary international
law. Then, while the U.N. was considering steps to endorse the ICISS
Report and Responsibility to Protect Doctrine, the United States launched a
controversial invasion of Iraq in 2003, citing humanitarian concerns as one
of the justifications for its action. Rather than endorsing unilateral
humanitarian intervention, the U.N. General Assembly and Security
Council ended up with a formulation that instead reaffirmed the importance
of Security Council authorization before States or Regional Organizations
can take such action. While the Responsibility to Protect concept has
influenced the international debate related to responding to various crisis, it
did not end up representing a fundamental change in the law of
intervention.
Chapter Nine of my book examines the response to the terrorist attacks
of September 11, 2001. Prior to the September 11th attacks, international
law required attribution to the territorial State before a victim State could
launch an extraterritorial attack in self-defense against non-state actors
present there. That requirement appeared to be fundamentally altered when
the international community widely approved the United States military
action against al-Qaeda in Afghanistan as lawful force in self-defense. AlQaeda was widely viewed as representing a new kind of threat, in which a
non-state actor possessed many of the attributes of a State—independent
162.
Ibrahim J. Gassama, International Law at a Grotian Moment: The Invasion of Iraq in
Context, 18 EMORY INT’L L. REV. 1, 30 (2004).
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wealth, willing forces with global reach, sophisticated training and
organization using newly developed communications technology, and
potential access to weapons of mass destruction. Moreover, the tactics of
al-Qaeda were to attack without warning, target civilians indiscriminately,
and employ suicide missions on a regular basis. In response, the so-called
Bush Doctrine was devised to permit States to target key al-Qaeda figures
and destroy al-Qaeda bases in weak or failed States that had proven
unwilling or unable to prevent al-Qaeda from operating in their territory.
But lacking nuance, the broadly articulated Bush Doctrine provoked
pushback from the ICJ, which, in the 2004 Wall and 2005 Congo cases,
reaffirmed that State attribution remained a perquisite for using force in
self-defense. In light of the widespread criticism of these holdings,
including from some of the ICJ’s most respected members, this judicial
action is unlikely to be the final word, but in the short-term they have
weakened the capacity for the law of 9/11 to blossom into a Grotian
Moment.
Taken together, the six case studies examined in Customary
International Law in Times of Fundamental Change: Recognizing Grotian
Moments provide several valuable insights about the nature and function of
the Grotian Moment concept. In all six case studies, the (potential) Grotian
Moment began with a custom pioneer—a state willing to initiate a new
practice contrary to existing customary international law in order to create a
new rule of customary international law. However, none of these pioneers
took the position that they were breaking new ground. Rather, they
followed an approach that can be likened to putting new wine in old bottles,
characterizing their innovations as consistent with existing law, though in
fact they were fermenting a new vintage.
Moreover, the case studies indicate that in addition to responding to
technological, economic, or societal change, Grotian Moments are in part
made possible by geopolitical realignment, often following war. Thus, the
affirmation of the Nuremberg Principles and the development of the
continental shelf concept followed in the immediate aftermath of the
conclusion of World War II. Similarly, the establishment of the Yugoslavia
Tribunal and issuance of the Tadic decision on the application of war
crimes to internal armed conflicts occurred during a unique period
following the end of the Cold War and collapse of the Soviet Union. The
international community’s response to the attacks of 9/11 appeared to
represent a geopolitical realignment in the common cause against terrorism,
but subsequent actions by the United States, such as the mistreatment of
terrorist detainees at Guantanamo Bay and CIA Black sites, fractured the
growing consensus about when, where, and how to employ force against
non-state actors.
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Further, in the cases of Nuremberg, the continental shelf, and space
law, the Grotian Moments led to rapid formation of fundamental principles
of customary international law though definitional ambiguities (e.g., with
respect to the precise meaning of aggression, continental shelf, and outer
space) continued to be worked out and evolve in subsequent years. This
indicates that the rapidly formed customary international law resulting from
a Grotian Moment does not have to be fully fleshed out or rigidly fashioned
in order to represent a radical change in the law.
Significantly, several of the case studies attest to the important role
that General Assembly resolutions can play as an essential ingredient in
bringing a Grotian Moment to fruition. The 1946 Declaration affirming the
Nuremberg Principles and the 1963 Declaration on Outer Space are
examples of General Assembly resolutions that had a significant impact on
the formation and codification of customary international law. The form,
content, and context of these resolutions enhanced their role as midwife to
the birth of customary rules despite the limited State practice on which the
resolutions were based. Conversely, the case study of the 1999 NATO
intervention demonstrated how General Assembly and Security Council
resolutions could derail a potential Grotian Moment from reaching its
destination.
Similarly, the case studies of space law and the Tadic decision also
demonstrated how negotiation of a multilateral treaty could culminate a
Grotian Moment. The 1969 Space Treaty rechristened the rules of
customary international law that were codified in the 1963 General
Assembly Declaration. The negotiation of the 1998 Rome Statute of the
International Criminal Court confirmed the customary international law
status of the application of war crimes to international armed conflict that
was articulated just three years earlier by the Yugoslavia Tribunal. Because
they represented customary rules, the provisions of these treaties on space
law and war crimes liability were deemed applicable to non-parties and
parties alike.
Likewise, in some of the case studies, the decisions of international
tribunals supplied the authoritative gloss that completed the Grotian
Moment by confirming the existence of the new rule of customary law.
North Sea Continental Shelf, for example, confirmed the customary law
status of the Truman Proclamation. In contrast, the Wall and Congo set
back the crystallization of the law of self-defense against terrorist groups
whose conduct is not attributable to the State that harbors them. Thus, like
General Assembly resolutions, international court decisions take on a
heightened significance in the process of norm creation during a potential
Grotian Moment.
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The case studies also provide support for Professor Bederman’s
supposition that previously unregulated realms are fertile territory for
accelerated formation of customary international law.163 Bederman’s thesis
helps explain the rapid crystallization of space law, the Nuremberg
Principles, the continental shelf, and the application of war crimes to
internal armed conflict. It also helps explain why the International Court
has been reluctant to depart from the attribution requirement articulated in
its 1986 Nicaragua precedent in the context of post 9/11 use of force in selfdefense against non-state actors in Third States.
The final two case studies examined in Chapters Eight and Nine of my
book indicate how a quickly ripening norm can be set back by State
practice or articulations that constitute a perceived abuse of the norm.
Thus, the United States’ invasion of Iraq in 2003 and the Russian invasion
of Georgia in 2008 renewed concerns that a doctrine permitting unilateral
humanitarian intervention would be easily subject to abuse, thereby
derailing the momentum that had been gaining behind the responsibility to
protect concept as legal justification for humanitarian action outside the
U.N. framework. Similarly, perceptions that the Bush Doctrine was
overbroad and easily subject to abuse slowed momentum for a change in
the law of self-defense against non-state actors.
Finally, while some scholars have characterized one or more of these
cases as “virtual instant custom,” the Grotian Moment concept is to be
distinguished from the controversial notion of instant custom. Grotian
Moments represent instances of rapid, as opposed to instantaneous,
formation of customary international law. In addition to General Assembly
resolutions and international court decisions, Grotian Moments require
some underpinning of State practice, whereas advocates of the concept of
instant custom argue that customary law can form in the absence of State
practice. The necessary State practice during a Grotian Moment can
precede the General Assembly resolution consistent with Professor
McDougal’s “claim and response” approach,164 or it can follow the
resolution as envisioned in Professor D’Amato’s “articulation and act”
approach,165 but in none of the case studies did the States’ vote on the
resolutions themselves provide the only foundation of State practice.
163.
Bederman, supra note 14, at 38.
164.
See generally Myres S. McDougal & Norbert A. Schlei, The Hydrogen Bomb Tests in
Perspective: Lawful Measures for Security, 64 YALE L.J. 648 (1955).
165.
D’AMATO, supra note 45, at 88.
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341
IV. CONCLUSION
Despite the distinction between so-called “instant custom” and the
phenomenon of Grotian Moments, some States and commentators may not
welcome the articulation of a concept that rationalizes rapid formation of
customary international law. For some, international law is best created
exclusively through treaties, as to which States can opt out by non-action,
simply by declining to ratify the instrument. So long as customary norms
take many decades to ripen into law, customary international law does not
seem threatening. But it is another matter if customary law can form within
just a few years and is deemed binding on States that have not affirmatively
manifested their persistent objection. In such cases, they may fear a
concept of law formation that appears more revolutionary than
evolutionary.
At the same time, the case studies of Grotian Moments demonstrate
international recognition that customary international law must have the
capacity in unique circumstances to respond to rapidly evolving
developments by producing rules in a timely and adequate manner. They
also demonstrate that not every momentous technological, geo-political, or
societal change results in accelerated formation of customary international
law—like for recrystallized gem stones, true Grotian Moments are both
precious and relatively rare. So, where will we see the next bona fide
Grotian Moment? I have my eye on the emerging customary international
law related to the disappearance of island states due to rising sea levels
caused by global warming.166
166.
In August 2012, the International Law Association established a committee to “study the
possible impacts of sea-level rise and the implications under international law of the partial and
complete inundation of state territory, or depopulation thereof, in particular of small island and lowlying states;” and to “develop proposals for the progressive development of international law in relation
to the possible loss of all or of parts of state territory and maritime zones due to sea-level rise, including
the impacts on statehood, nationality, and human rights.” International Law and Sea Level Rise, INT’L
LAW ASS’N, http://www.ila-hq.org/en/committees/index.cfm/cid/1043 (last visited Feb. 22, 2014).
HUMANITARIAN INTERVENTION POST-SYRIA: A
GROTIAN MOMENT?
Milena Sterio*
I.
II.
III.
IV.
V.
INTRODUCTION ................................................................................ 343
WHAT IS A GROTIAN MOMENT?...................................................... 344
SYRIA: A VIOLENT PAST, PRESENT, AND FUTURE? ....................... 348
A NEW GROTIAN MOMENT: HUMANITARIAN INTERVENTION? ..... 350
CONCLUSION ................................................................................... 356
I. INTRODUCTION
Grotian Moment is a term that signifies a “paradigm-shifting
development in which new rules and doctrines of customary international
law emerge with unusual rapidity and acceptance.”1 A Grotian Moment is
thus “an instance in which a fundamental change in the exiting international
system happens, thereby provoking the emergence of a new principle of
customary law with outstanding speed.”2 Professor Richard Falk invented
the term Grotian Moment in 1985. Since then, the term has been employed
by experts in a variety of ways.3 Here, I will adopt the following meaning
of Grotian Moment as proposed by Professor Michael Scharf: “a
transformative development in which new rules and doctrines of customary
international law emerge with unusual rapidity and acceptance.”4 This
article will examine whether the concept of humanitarian intervention,
developed over the past two decades, constitutes an instance of a Grotian
Moment. In particular, this article will focus on Syria and the recent
arguments in favor of humanitarian intervention in this region, and will
pose the question of whether Syria constitutes a law-creating moment. This
article will conclude that Syria may contribute to the shaping of a new
Grotian Moment: the development of humanitarian intervention as a norm
of customary law.
*
The Charles R. Emrick Jr.-Calfee Halter & Griswold Professor of Law, ClevelandMarshall College of Law. The author would like to thank the organizers of the 2013 International Law
Weekend for the opportunity to present these remarks.
1.
Michael P. Scharf, Seizing the “Grotian Moment” Accelerated Formation of Customary
Int’l Law in Time of Fundamental Change, 43 CORNELL INT’L L. J. 439, 439 (2010).
2.
Milena Sterio, A Grotian Moment: Changes in the Legal Theory of Statehood, 39 DENV.
J. INT’L L. & POL’Y 209, 211 (2011).
3.
Id.
4.
Scharf, supra note 1, at 444.
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II. WHAT IS A GROTIAN MOMENT?
The term “Grotian” refers to Dutch scholar Hugo Grotius (1583–
1645), who is hailed as the father of modern international law, and who, in
his seminal work, De Jure Belli ac Pacis (The Law of War and Peace),
“offered a new concept of international law designed to reflect that new
reality.”5 Similar to how Grotius developed a novel understanding of
international law in the seventeenth century, more modern events have
constituted Grotian Moments over the last several decades. Thus,
commentators have suggested that the creation of the Nuremberg Tribunal
at the end of World War II was a Grotian Moment.6 Moreover, the
establishment of the United Nations (U.N.) Charter could constitute another
example of a Grotian Moment.7 Finally, the recent establishment of the
International Criminal Court could provide an additional instance of a
Grotian Moment.8
Over time, scholars have used other terms to convey the idea of a
Grotian Moment. Professors Bruce Ackerman, Bardo Fassbender, Jenny
Martinez, Leila Sadat, Anne-Marie Slaughter, and William Burke-White
have all used the term “constitutional moment” to refer to different
developments in American constitutional law and in international law.9
The term “international constitutional moment” may be distinguished from
the concept of Grotian Moment as the latter reflects a wider-ranging
5.
Id. at 443; see generally Hugo Grotius, The Law of War and Peace, LONANG.COM (May
2012), http://www.lonang.com/exlibris/grotius (last visited Jan. 31, 2014).
6.
See generally Ibrahim J. Gassama, International Law at a Grotian Moment: The Invasion
of Iraq in Context, 18 EMORY INT’L L. REV. 1, 9 (2004) (arguing that along the Peace of Westphalia, the
Nuremberg Charter and the U.N. Charter include more recent Grotian moments).
7.
Id.
8.
Leila Nadya Sadat, The New International Criminal Court: An Uneasy Revolution, 88
GEO. L. J. 381, 474 (2000).
9.
See generally BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984) (referring
to the New Deal era as a “constitutional moment”); Bardo Fassbender, The United Nations Charter as
Constitution of the International Community, 36 COLUM. J. TRANSNAT’L L. 529 (1998); Jenny S.
Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 463 (2003) (referring to the
drafting of the U.N. Charter as a “constitutional moment” in the history of international law); Leila
Nadya Sadat, Enemy Combatants After Hamdan v. Rumsfeld: Extraordinary Rendition, Torture, and
Other Nightmares from the War on Terror, 75 GEO. WASH. L. REV. 1200, 1206–07 (2007) (referring to
Nuremberg as a “constitutional moment”); Anne-Marie Slaughter & William Burke-White, An
International Constitutional Moment, 43 HARV. INT’L L.J. 1, 2 (2002) (referring to 9/11 as a
“constitutional moment” and arguing that the attacks reflect a change in the nature of threats facing the
international community, justifying the development of new rules of customary law).
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345
development affecting international law on the whole, and not merely
subfields of international law.10
Finally, the notion of a Grotian Moment can also be distinguished
from the concept of “instant customary international law.”11 This theory
argues that state practice may not be a necessary element in the
establishment and creation of customary law if states’ opinio juris on an
emerging norm can be clearly demonstrated through their General
Assembly resolutions.12 On the contrary, customary international law is
formed through gradual, widespread, and lengthy state practice and a sense
of legal obligation to comply with the emerging norm.13 Thus, the process
of establishing such a norm of customary international law can take many
decades or even centuries.14 The Grotian Moment theory is distinct from
the theory of instant customary law because it looks beyond General
Assembly resolutions and focuses on paradigmatic changes in international
law caused by rapid and profound global developments.
The “Grotian Moment” concept contemplates accelerated formation of
customary international law through widespread acquiescence or
endorsement in response to State acts, rather than instant custom based
solely on General Assembly resolutions.15 The Grotian Moment theory
may rely on General Assembly resolutions to discover evidence of an
emerging customary law norm, resulting from a period of fundamental
change. However, General Assembly resolutions are one of the many tools
utilized by scholars discovering a Grotian Moment.
[T]he “Grotian Moment” concept may be helpful to a court
examining whether a particular General Assembly resolution
should be deemed evidence of an embryonic rule of customary
international law, especially in a case lacking the traditional level
10.
Scharf, supra note 1, at 445 (describing that a Grotian Moment “makes more sense when
speaking of a development that has an effect on international law at large”).
11.
Sterio, supra note 2, at 212 (citing PETER MALANCZUK, AKEHURST’S MODERN
INTRODUCTION TO INT’L LAW 45–46 (7th ed. 1997); B. Cheng, United National Resolutions on Outer
Space: “Instant” International Customary Law?, 5 INDIAN J. INT’L L. 23 (1965)); Jeremy Levitt,
Humanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of ECOWAS in Liberia
and Sierra Leone, 12 TEMP. INT’L & COMP. L.J. 333, 351 (1998): see generally Benjamin Lengille, It’s
“Instant Custom:” How the Bush Doctrine Became Law After the Terrorist Attacks of September 11,
2001, 26 B.C. INT’L & COMP. L. REV. 145 (2003).
12.
Cheng, supra note 11, at 36.
13.
Scharf, supra note 1, at 445.
14.
See e.g., The Paquete Habana, 175 U.S. 677, 700 (1900) (The U.S. Supreme Court
recognized in this case that the process of forming customary international law can take centuries.).
15.
Scharf, supra note 1, at 446.
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of widespread and repeated state practice. In periods of
fundamental change—whether by technological advances, the
commission of new forms of crimes against humanity, or the
development of new means of warfare or terrorism—rapidly
developing customary international law as crystallized in General
Assembly resolutions may be necessary for international law to
keep up with the pace of other developments.16
As mentioned above, historical examples of Grotian Moments include
the creation of the Nuremberg Tribunal at the end of World War II, as well
as the establishment of the U.N. in 1945.17 More recent examples include
the creation of the International Criminal Court.18 Additionally, the
terrorist attacks on the World Trade Center and Pentagon on September 11,
2001 have significantly impacted the international community’s
understanding of the laws of war.19 In the wake of the September 11
attacks, Security Council adopted Resolution 1368, which confirmed the
right to use force in self-defense against non-state actors (al-Qaeda),
thereby confirming the idea that international law authorizes states to use
force in self-defense against non-state actors.20
A lesser known Grotian Moment may consist of the situation when the
United States and Soviet Union initially “developed the ability to launch
rockets into outer space and place satellites in earth orbit.”21 Responding to
this development, the U.N. General Assembly adopted Declaration of Legal
Principles Governing the Activities of States in the Exploration and Use of
Outer Space, which confirmed that the U.N. Charter generally applies to
outer space, as well as attempted to limit states’ ability to lay territorial
claims to parts of outer space.22 This Declaration was widely accepted as
16.
Scharf, supra note 1, at 450.
17.
Sterio, supra note 2, at 2011–12.
18.
See generally supra notes 6–8 and accompanying text.
19.
See e.g., British Foreign Secretary Jack Straw, Order out of Chaos: The Future of
Afghanistan, Address at the International Institute of Strategic Studies (Oct. 22, 2001), quoted in
Slaughter, Burke-White, supra note 9, at 2 (According to then British Foreign Secretary Jack Straw,
“[f]ew events in global history can have galvanized the international system to action so completely in
so short a time.”).
20.
See generally U.N. SCOR, 56th Sess., 4370th mtg, U.N. Doc. S/RES/1368 (2001) (Calling
on states to “work together urgently to bring to justice the perpetrators, organizers and sponsors” of the
attacks, and reaffirming the inherent right of self-defense in accordance with Article 51 of the U.N.
Charter, in the context of the 9/11 terrorist attacks.).
21.
Scharf, supra note 1, at 450.
22.
See generally Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space, G.A. Res. 1962 (XVIII), 1280th plen. mtg., U.N. Doc.
A/RES/1962 (Dec. 13 1963).
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347
law and reflected a time of change caused by accelerated technological
developments, such as the possibility to launch rockets into outer space.23
Finally, the development of humanitarian intervention at the very end
of the twentieth century has been described as a Grotian Moment.24 In
1999, North Atlantic Treaty Organization (NATO) forces intervened in
Serbia to protect ethnic Kosovar Albanians from ethnic cleansing, instituted
by the Federal Republic of Yugoslavia government.25 The NATO
campaign had not been authorized by the U.N., but the global consensus on
this intervention was that it was “[unlawful] but legitimate.”26 The
international community responded to the intervention through a new
doctrine called “Responsibility to Protect,” which authorizes humanitarian
interventions in limited circumstances.27 A growing number of scholars
have agreed that humanitarian intervention has become an emerging norm
of customary international law, and that it ought to be recognized in some
extraordinary circumstances.28
Thus, the notion of humanitarian
intervention may have constituted a Grotian Moment. This is particularly
relevant today in the context of Syria and the ongoing humanitarian crisis,
which has sparked significant debate over the issue of humanitarian
intervention.
23.
See Sterio, supra note 2, at 214.
24.
See Scharf, supra note 1, at 450.
25.
Milena Sterio, On the Right to External Self-Determination: “Selfistans,” Secession, and
the Great Powers’ Rule, 19 MINN. J. INT’L L. 137, 163–64 (2010).
26.
This terminology was coined by the drafters of the Kosovo Report. See INDEP. INT’L
COMM’N ON KOSOVO, KOSOVO REPORT: CONFLICT, INT’L RESPONSE, LESSONS LEARNED, ch. 6 (2000)
[hereinafter KOSOVO COMM’N]. The position of the U.S. Government confirmed this view; a few days
before the start of the NATO-led aerial strikes against the former Yugoslavia in 1999, a spokesman from
the U.S. State Department stated that “[w]e and our NATO allies have looked to numerous factors in
concluding that such action, if necessary, would be justified . . . .” And that “we and our NATO allies
believe there are legitimate grounds to threaten and, if necessary, use military force.” Sean Murphy,
Contemporary Practice of the United States Relating to Int’l Law, 93 AM. J. INT’L L. 628, 631 (1999);
but see the position of the United Kingdom’s Government: “We are in doubt that NATO is acting
within international law and our legal justification rests upon the accepted principle that force may be
used in extreme circumstances to avert a humanitarian catastrophe.” DUKE, EHRHART & KARADI, The
Major European Allies: France, Germany, and the United Kingdom, in KOSOVO AND THE CHALLENGE
OF HUMANITARIAN INTERVENTION 128 (Schnabel & Thakur eds., 2000) [hereinafter KOSOVO AND THE
CHALLENGE].
27.
See generally THE INT’L COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY, THE
RESPONSIBILITY
TO
PROTECT
(2001),
available
at
http://responsibilitytoprotect.org/
ICISS%20Report.pdf (last visited Feb. 22, 2014) [hereinafter ICISS REPORT]; see also Max W.
Mathews, Note, Tracking the Emergence of a New Int’l Norm: The Responsibility to Protect and the
Crisis in Darfur, 31 B.C. INT’L COMP. L. REV. 137 (2008).
28.
See John Alan Cohan, Sovereignty in a Postsovereign World, 18 FLA. J. INT’L L. 907, 941
(2006); MARC WELLER, ARMED SAMARITANS 20–22 (Counsel 1999).
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III. SYRIA: A VIOLENT PAST, PRESENT, AND FUTURE?
Syria is a multi-ethnic nation, home to a majority of Arab Sunnis and
many other minority groups such as Arab Alawites, Christians, Armenians,
Assyrians, Druze, Kurds, and Turks.29 It was a part of the Ottoman Empire
from the 16th century until World War I.30 After the War Syria was
integrated into the French mandate in the Middle East.31 It gained
independence from France in 1946, but its first decades as a sovereign
nation were marred by violence and conflict.32 Following a regional war in
1970, Hafez al-Assad, current President Assad’s father, rose to power and
emerged as ruler of Syria.33 Violence and warfare ensued throughout Hafez
al-Assad’s regime. In the late 1970s, an Islamic uprising orchestrated by
the Muslim Brotherhood and aimed against the government resulted in
further violence, culminating in the 1982 Hama Massacre, where tens of
thousands of Syrians were killed by the Syrian army.34 Hafez al-Assad died
in 2000 and was replaced by his son, Bashar al-Assad, who ran unopposed
for the presidential post.35
Bashar al-Assad’s election initially sparked hope for reform, but his
regime quickly quashed any protest.36 The current crisis began as part of
the Arab Spring: A series of peaceful protests that took place in Syria in
the spring of 2011, to be brutally quashed by the Syrian army.37 By the
summer of 2011, army defectors formed the Free Syrian Army and began
fighting against government forces.
The opposition movement is
dominated by Sunnis, whereas Assad and the governing regime are mostly
Alawites.38 According to some reports, as many as 100,000 people have
been killed in this bloody conflict, whereas over 1.5 million Syrians have
29.
See Syria Profile, BBC NEWS MIDDLE EAST (Dec. 12, 2013), http://www.bbc.co.uk/
news/world-middle-east-14703856 (last visited Feb. 22, 2014) [hereinafter Syria Profile].
30.
Id.
31.
Id.
32.
Id.
33.
Id.
34.
See Syria Profile, supra note 29.
35.
Id.
36.
Id. (“Following the death of Hafez al-Assad in 2000 Syria underwent a brief period of
relaxation. Hundreds of political prisoners were released, but real political freedoms and a shake-up of
the state-dominated economy never materialized.”).
37.
See generally id.
38.
Kim Sengupta, Syria's Sectarian War Goes Int’l as Foreign Fighters and Arms Pour Into
Country, INDEPDENDENT.CO.UK (Feb. 20, 2012), http://www.independent.co.uk/news/world/middleeast/syrias-sectarian-war-goes-international-as-foreign-fighters-and-arms-pour-into-country7216665.html (last visited Jan. 31, 2014).
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fled to the neighboring countries of Jordan, Turkey, Iraq, and Lebanon.39
Recently, the conflict escalated resulting in the use of particularly heinous
weapons by the Syrian government. In August 2013, President Assad
allegedly used chemical weapons against Syrian civilians; as confirmed by
U.N. inspectors.40
The ongoing crisis situates itself perfectly within the ongoing situation
in Syria, where all constitutional and democratic freedoms and values have
been lacking. While Syria is officially a constitutional democracy, all
constitutional freedoms were suspended between 1963 and 2011 under an
Emergency Law, because of the ongoing conflict with Israel over Golan
Heights.41 Most human rights observers have expressed serious concern
over Syria’s human rights record, calling it one of the worst on the planet.42
The current conflict has only exacerbated an already volatile situation.
Syrian demographics have additionally fueled the ongoing conflict. A
majority of Syrians (approximately 60%) are Sunni Arab; President Assad
and his government belong to a minority Alawite group (approximately
12%); Christians constitute a 10% minority; other minority groups such as
Turks, Kurds, and Assyrians constitute the remaining 18% of the
population.43 Christians have aligned themselves with the ruling Alawites,
from whom they have expected protection from the more radical Islamic
Sunnis. Many Christians, alongside Alawites, hold prominent posts within
Syria.44 Most Christians have thus supported Assad throughout the conflict
39.
Matthew Weaver, Syria Crisis: Number of Refugees Tops 1.5 Million, Says UN, THE
GUARDIAN (May 16, 2003), http://www.theguardian.com/world/2013/may/16/syria-crisis-refugeesmillion-un (last visited Jan. 31, 2014).
40.
Syria Chemical Attack:
What We Know, BBC NEWS (Sept. 24, 2013),
http://www.bbc.co.uk/news/world-middle-east-23927399 (last visited Feb. 20, 2014); see also Report of
the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian
Arab Republic on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus, Aug. 21,
2013, U.N. Doc. A/67/997-S/2013/553, available at http://www.un.org/disarmament/content/
slideshow/Secretary_General_Report_of_CW_Investigation.pdf (last visited Feb. 20, 2014).
41.
Syria’s Emergency Law Lifted After 48 Years, ENCYCLOPEDIA BRITANNICA BLOG (Apr.
19, 2011), http://www.britannica.com/blogs/2011/04/syrias-emergency-law-lifted-48-years-editor (last
visited Feb. 20, 2014).
42.
See
Freedom
in
the
World
2011,
FREEDOMHOUSE.ORG
http://freedomhouse.org/report/freedom-world/freedom-world2011?page=363&year=2011&country=8143 (last visited Feb. 20, 2014).
(2011),
43.
Syria
Demographics
Profile
2013,
INDEXMUNDI.COM
(2013),
http://www.indexmundi.com/syria/demographics_profile.html (last visited Jan. 31, 2014) (citing CIA
WORLD FACTBOOK).
44.
Syria's Christians Stand by Assad, CBS NEWS (Feb. 6, 2002), http://www.cbsnews.com/
8301-503543_162-57372175-503543/syrias-christians-stand-by-assad/ (last visited Feb. 20, 2014)
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and have argued that if Assad were removed, the dominant Sunnis would
install an Islamic-extremist government which would harm Christians and
all other minority groups even further.45 The presence of multiple ethnic
groups in Syria, as well as their mutual alliances and skirmishes, have
contributed to historical instability of the Syrian state and have exacerbated
the present-day civil war.
In the wake of horrific violence and bloodshed in Syria, and in
particular, the allegations of chemical weapons used by the Assad regime,
the international community has grappled with the issue of whether to
intervene with military in this volatile region. The U.N. Security Council
has been blocked over the issue because both Russia and China have
threatened to veto any resolution calling for military action against Syria.46
The United States briefly attempted to build consensus over the idea of
staging a unilateral intervention in Syria, alongside allies such as Great
Britain and France.47 The section below will explore the issue of
humanitarian intervention post-Syria, and whether this emerging norm
constitutes a Grotian Moment.
IV. A NEW GROTIAN MOMENT: HUMANITARIAN INTERVENTION?
Any unilateral military action against Syria exercised without Security
Council approval constitutes a use of force that can be best justified through
the paradigm of humanitarian intervention: This concept is an emerging
norm of customary law that is currently being crystallized into binding law.
The creation of any norm of customary law requires two elements: opinio
juris and state practice.48 State action and practice aimed at the creation of
a new norm of customary law may in fact break an existing norm. In other
words, states may have to engage in behavior which purposely violates
existing rules in order to create new, presumably better rules. For the
(“Thousands of Christians are tied up in the regime's security apparatus and are employed in highranking government and military positions.”).
45.
Id. (“As a fellow minority, Christians have long supported the Alawite regime in order to
ensure protection and rights for themselves.”).
46.
Louis Charbonneau & Michelle Nichols, U.N. Security Council Powers Meet Again on
Syria; No Outcome, REUTERS (Aug. 29, 2013), http://www.reuters.com/article/2013/08/29/us-syriacrisis-un-idUSBRE97S17R20130829 (last visited Jan. 31, 2014) (noting that Russia and China had
vetoed three proposed resolutions that would have condemned the Assad regime and threatened United
Nations sanctions).
47.
Id. (noting that the United States and Great Britain sought to convince the public for the
need to engage in military strikes against Syria); see also France’s Hollande Backs U.S. on Syria
Action, BBC NEWS (Aug. 30, 2013), http://www.bbc.co.uk/news/world-middle-east-23897775 (last
visited Feb. 20, 2014).
48.
See Scharf, supra note 1, at 445.
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351
purposes of Syria, this implies that states may have to engage in military
intervention for a humanitarian purpose without Security Council approval,
thereby breaking the existing ban on the use of force in order to establish a
new customary norm of humanitarian intervention.
In the context of Syria, the argument in favor of humanitarian
intervention is solid. In the words of Harold Koh, “Syria is a lawmaking
moment” because all the conditions seem to be met for the advancement of
a novel legal argument: that humanitarian intervention has crystallized into
a new binding norm of international law.49 Thus, the emergence of
humanitarian intervention as a new norm of customary law, as evidenced
post-Syria, may constitute a Grotian Moment, similar to those described
above. According to Koh, humanitarian intervention could be legal under
international law if the following conditions were met:
1)
2)
3)
If a humanitarian crisis creates consequences significantly
disruptive of international order—including proliferation of
chemical weapons, massive refugee outflows, and events
destabilizing to regional peace and security of the region—
that would likely soon create an imminent threat to the
acting nations (which would give rise to an urgent need to
act in individual and collective self-defense under Article
51);
[A] Security Council resolution was not available because
of persistent veto; and the group of nations that had
persistently sought Security Council action had exhausted
all other remedies reasonably available under the
circumstances, they would not violate U.N. Charter Article
2(4) if they used [. . .]
[L]imited force for genuinely humanitarian purposes that
was necessary and proportionate to address the imminent
threat would demonstrably improve the humanitarian
situation, and would terminate as soon as the threat is
abated.50
Over the past few decades, humanitarian intervention has grown from
a hawkish argument, advanced by few, to a powerfully emerging norm of
customary law. Evidence to support the emergence of this norm cannot be
ignored; moreover, the emergence of such a norm is a necessity in today’s
type of warfare: where conflict is more often intra-state than inter-state,
49.
See Harold Hongju Koh, Syria and the Law of Humanitarian Intervention (Part II: Int’l
Law and the Way Forward), JUSTSECURITY.ORG (Oct. 2, 2013, 9:00 AM), http://justsecurity.org/2013/
10/02/koh-syria-part2/ (last visited Feb. 20, 2014).
50.
Id. (emphasis in original).
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and where civilians represent targets more frequently than soldiers. First,
both opinio juris and state practice have slowly been turning toward
approval of humanitarian intervention as a new norm of customary law. In
the context of Kosovo in 1999, many states were ready and willing to
participate in a NATO-led military intervention, outside of the confines of
the U.N. Charter. While some states, including the United States, attempted
to paint this intervention as sui generis and not precedent-creating, others
more openly admitted to their belief that this type of action was indeed
justified under international law.51
Moreover, even states which denied that Kosovo was any type of a
new precedent-setting norm nonetheless participated in this military
intervention. State practice in the case of Kosovo points to the emergence
of a new norm of customary law, namely humanitarian intervention. As the
Independent International Commission on Kosovo pointed out, “[t]he
Kosovo ‘exception’ now exists, for better and worse, as a contested
precedent that must be assessed in relation to a wide range of international
effects and undertakings.”52 In addition, then U.N. Secretary-General Kofi
Annan has claimed, in the aftermath of Kosovo, that “[e]merging slowly,
but I believe surely, is an international norm against the violent repression
of minorities that will and must take precedence over concerns of State
sovereignty.”53 Other examples of humanitarian intervention over the
course of the last two decades include a 1999 intervention on behalf of the
Kurds staged by the United States and exercised against Iraq, as well as the
2012 intervention in Libya.54 In addition to such examples of humanitarian
51.
Compare the United Kingdom’s position on Kosovo, arguing that the NATO intervention
was legal under international law, with the position of the United States, which argued that the
intervention was “legitimate.” See FREEDOM HOUSE, supra note 42; see also KOSOVO COMMISSION,
supra note 26.
52.
KOSOVO COMMISSION, supra note 26, at 175.
53.
See Press Release, Human Rights Commission, Secretary-General Calls for Renewed
Commitment in New Century to Protect Rights of Man, Woman, Child—Regardless of Ethnic, National
Belonging, U.N. Press Release SG/SM/6949, HR/CN/898 (Apr. 7, 1999).
54.
Sterio, supra note 25, at 156 (discussing the 1991 intervention on behalf of the Kurds).
While military intervention in Libya had been authorized through Security Council Resolution 1973, the
action itself was exercised by a coalition of nineteen states and involvement by NATO. Although Libya
does not represent an instance of humanitarian intervention absent Security Council authorization, it
does illustrate the willingness of multiple states to participate in a military intervention to protect
civilians from humanitarian suffering. See e.g., Qatar, Several EU States Up for Libya Action:
Diplomat, EUBUSINESS.COM (Mar. 19, 2011), http://www.eubusiness.com/news-eu/libya-unrestsummit.95v/ (last visited Feb. 20, 2014); see also Libya Example Shows UN Resolution on Syria Might
be Used to Justify Broad Intervention, RT.COM (Sept. 24, 2013), http://rt.com/op-edge/libya-un-broadintervention-277/ (last visited Feb. 20, 2014) (noting that Resolution 1973 “was presented as a
humanitarian resolution”).
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intervention, the international community has grappled with this issue and
many states have indicated their willingness to develop a new norm
authorizing military action against rogue regimes.
Many such discussions have already occurred within the context of
responsibility to protect. While the existing document on responsibility to
protect places any military intervention within the purview of the Security
Council, many states’ willingness to debate this issue and to question the
Security Council’s monopoly in this area demonstrates an emergence or
crystallization of a new way of thinking. Humanitarian intervention has
been present in the public discussions of many states and on the agenda of
the U.N. General Assembly. The absence of consensus on this issue does
not demonstrate that states do not wish to develop a new normative
framework for humanitarian intervention; however, such lack of consensus
indicates that states take this issue very seriously and may be in the process
of cooperating toward the development of a new norm. Second, modernday warfare necessitates the development of a new norm authorizing
military intervention in situations where the Security Council is deadlocked
and where humanitarian suffering becomes intolerable. Most recent wars
have been internal and have involved large civilian populations.55
Unfortunately, Security Council politics have resulted in multiple vetoes
and only a small number of military actions have ever been authorized.
Civilian populations need the international community’s protection, and
such protection can only be offered if a normative framework for true
humanitarian intervention is developed. Syria may be the perfect
opportunity to do so. The framework mentioned above, proposed by
Harold Koh in the context of Syria, accomplishes the important task of
legalizing humanitarian intervention under very strict, limited
circumstances. This type of limited humanitarian intervention may
constitute a new Grotian Moment.
Koh is correct in developing and advancing the argument in favor of
humanitarian intervention. Customary norms of law emerge through novel
legal arguments, and through states’ acceptance and usage of such
arguments. The only way that humanitarian intervention can develop into a
binding norm of customary law is through the writing of scholars like Koh,
which can then be espoused by political leaders and put into frequent use. I
also agree with Koh that humanitarian intervention is a necessity in today’s
world—because, like in Syria, modern-day conflicts often remain within a
single state’s boundary and often cause tremendous humanitarian suffering.
55.
See e.g., James Mayall, The Concept of Humanitarian Intervention Revisited, in KOSOVO
CHALLENGE, supra note 26, at 320 (noting that since the Gulf War, the majority of conflict
were intrastate conflicts, necessitating U.N. Chapter VI intervention to provide humanitarian relief as
well as peacekeeping functions).
AND THE
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Because Security Council remains deadlocked over geo-political interests
of its permanent members, it is essential that the international community
become enabled to act without its explicit approval. The hope here is that
humanitarian intervention can someday morph from an emerging norm of
international law into a binding one. That customary law will evolve and
will embrace this new norm. That the Security Council structure of veto
power can be overcome one day through such development of binding
custom, and that we will witness the creation of a new Grotian Moment.
The emergence of a new customary norm of international law, and the
creation of a new Grotian Moment, is of course a difficult proposition.
How does one “prove” that customary law contains a new norm? How
does one demonstrate the exact content of that norm? Academics,
politicians, judges, and arbitrators have already grappled with the idea of
proving the existence and content of a customary law norm. They have
looked to the traditional sources of international law: Treaties, writings of
scholars, judicial opinions, and general principles of law. They have
reviewed U.N. sources, such as Security Council and General Assembly
resolutions, soft law instruments, such as codes of conduct, guidelines,
gentlemen’s agreements, and various political statements. They have
browsed through supporting and interpretative documents, such as travaux
preparatoires, legislative history behind national statutes, and drafting
history and drafters’ statements linked to any international document.
Anyone looking for the emergence of a new customary norm of
humanitarian intervention would look in similar places. It is thus important
that the proposed framework for the legality of humanitarian intervention
become a part of international legal discourse. That it continue to be
discussed at academic forums and conferences. That it remain a subject of
controversy on the Security Council and General Assembly agenda, and
that it persist to occupy a sore subject of political and diplomatic
negotiation. The development of any new legal rule requires tenacity and
persistence. Developing a legal framework for humanitarian intervention
will similarly require significant effort; it is too important of a task however
to justify giving up. With persistence and tenacity by states, scholars, and
courts eager to develop a new norm of humanitarian intervention, we may
soon become able to observe another fully-shaped Grotian Moment.
Last, I understand that humanitarian intervention can be a slippery
slope—that states may attempt to misuse this rationale to justify aggressive
military action and the use of force for selfish, national interests under the
guise of humanitarian assistance. But any law can be potentially misused,
misinterpreted, or wrongly applied. This is not an argument in favor of
doing nothing. At best, it is an argument in favor of adding to Koh’s
proposed framework. One such addition may be a requirement that any
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state engaged in a unilateral humanitarian intervention report back to the
Security Council. Such a reporting mechanism already exists within the
U.N. Charter for the exercise of self-defense; it would be equally valid for
the humanitarian intervention paradigm.
Another addition may be a requirement that a state considering the use
of force for humanitarian purposes attempt to build an international
coalition. Although the Security Council may be paralyzed, it would
nonetheless be possible for the intervener state to seek allies. The United
States attempted to do so when it first considered the possibility of using
force against Syria—President Obama sought British and French
assistance.56 The Bush Administration’s response to the 9/11 terrorist
attacks also centered on building an international coalition of states willing
to combat terrorism.57 And the Kosovo air strikes, conducted with a
humanitarian goal, were led by a NATO coalition of states.58 The existence
of an international alliance in most instances demonstrates that multiple
states are concerned with a given situation and that multiple states consider
the use of force appropriate. The requirement that states build or attempt to
build an international coalition any time they wish to engage in
humanitarian intervention could prevent individual states from staging
military actions with non-humanitarian goals under the pretext of
humanitarian intervention.
Finally, it should be noted that international law is not stagnant and
that it has evolved and changed drastically over the past century. Thus, if
some day humanitarian intervention becomes an unnecessary, ill-used,
cumbersome norm, international law players can act in order to change the
norm. If rogue states misuse the norm and engage in reprehensible military
actions under the pretense of humanitarian assistance, the international
community can reevaluate and reinterpret the norm, or can pass treaty
provisions to overturn the norm. International law has evolved because of
changes in our society and the need to preserve international peace and
security in a different manner. Similarly, international law can change in
the future, to respond to distinct future needs of our global community.
56.
Syria Demographics Profile, supra note 43; see also Charbonneau & Nichols supra, note
46.
57.
Sarah Anderson, Phyllis Bennis & John Cavanagh, Coalition of the Willing or Coalition of
the Coerced?, INSTITUTE FOR POLICY STUDIES (Feb. 8, 2014), http://www.ipsdc.org/reports/coalition_of_the_willing (last visited Feb. 20, 2014) (describing the building of the
Coalition of the Willing by the Bush Administration in the wake of 9/11).
58.
See e.g., Sterio, supra note 25, at 156 (discussing the NATO air strikes against the Federal
Republic of Yugoslavia aimed at protecting Kosovar Albanians).
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V. CONCLUSION
As scholars have acknowledged, “[c]ommentator’s and courts should
exercise caution, however, in characterizing situations as Grotian
Moments” as most instances of profound change may need to be more
strictly scrutinized to determine if they truly qualify as Grotian Moments.59
While the issue of humanitarian intervention certainly merits continuous
attention and scrutiny on behalf of states, scholars, and courts, the
development of this new norm of international law authorizing the use of
force toward the goal of preventing humanitarian suffering would be a
significant and worthy Grotian Moment. In the wake of the Syrian
situation, we may be witnessing the development and creation of a new
Grotian Moment: the emergence of a customary norm of international law
authorizing humanitarian intervention.
59.
Scharf, supra note 1, at 452.
SETTLEMENT OF MARITIME DELIMITATION
DISPUTES WITHIN COMPLEX GEOGRAPHICAL
SETTINGS
Teoman Uykur*
I.
II.
III.
IV.
V.
INTRODUCTION ................................................................................ 357
MARITIME DELIMITATION: PROGRESS AND THE CASE LAW IN
LIGHT OF THE MOST RECENT JUDGMENTS ..................................... 358
A. Black Sea Case (Romania v. Ukraine) .................................... 360
B. Delimitation in the Bay of Bengal (Bangladesh v.
Myanmar) ................................................................................ 360
C. Territorial and Maritime Dispute (Nicaragua v. Colombia) .. 361
SOME OBSERVATIONS ON CRITICAL ISSUES REFERRED TO IN
CASE LAW ....................................................................................... 362
A. Equidistance Method—Three-Stage Delimitation
Methodology ........................................................................... 362
B. Single Delimitation Boundary ................................................. 363
C. The Selection of Base Points ................................................... 363
D. Islands ..................................................................................... 363
1. Selection of Islands as Base Points ................................. 363
2. “Rocks Which Cannot Sustain Human Habitation or
Economic Life of Their Own” ........................................ 364
3. Whether and To What Extent Islands May Generate
Continental Shelf and EEZ in a Particular Context ........ 364
E. Extent of the Territorial Sea Islands May Generate—A
Critique Concerning the Judgment in Nicaragua v.
Colombia ................................................................................. 365
CERTAIN PENDING DISPUTES AND THE WAY AHEAD ..................... 367
CONCLUSION ................................................................................... 370
I. INTRODUCTION
The topic of this Panel is a relevant issue, which is continually a
subject of growing interest in the international community. The everexisting need for clear maritime boundaries has become even more urgent.
The prospects of exploiting newly accessible natural resources are the result
of recent technological development.
*
Counselor, Permanent Mission of Turkey to the United Nations Office at Vienna. The
views expressed here are of personal nature and do not necessarily represent views of the Permanent
Mission of Turkey or any other Turkish official authority.
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This article focuses on recent case law, particularly the latest three
international judgments, and provides a brief comment on various critical
aspects of these decisions. These aspects include: The impact of islands on
maritime delimitation; selection of base points; determination of relevant
coasts; determination of relevant maritime area; and the delimitation
methodology followed by adjudicating bodies. Further points are made in
the latter section on how the current state of delimitation law may apply to
some existing controversies.
II. MARITIME DELIMITATION: PROGRESS AND THE CASE LAW IN LIGHT OF
THE MOST RECENT JUDGMENTS
The progress of maritime delimitation has been achieved over some
decades, mainly through case law. Advancement in this particular field of
international law was born out of the difficult negotiation history of
relevant international legal instruments. Notably, Articles 74 and 83 of the
Law of the Sea Convention (LOSC) make no reference to a specific
delimitation method, except requiring the parties to achieve an equitable
result.1 Article 15 on the delimitation of territorial sea, on the other hand,
refers to equidistance method, balanced with special circumstances and
historic title, none of which are clearly defined.2 Particularly, negotiations
concerning the delimitation of the continental shelf and exclusive economic
zone (EEZ) during the Third Conference on the Law of the Sea made it
clear that the two camps, the supporters of the equidistance method and
those arguing for equitable principles, would never come to an agreement
on the delimitation method.3 Therefore, the resulting arrangement, which
has come forward at a rather late stage of negotiations, was more of a
framework instead of a substantial solution.
This identical framework contained in Articles 74 and 83, called by
some an “empty shell,” lacked any clear directive as to the method to be
used in the delimitation of the continental shelf and EEZ.4 The provisions
call for an agreement in the first place “in order to achieve an equitable
1.
U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833
U.N.T.S. 397 (entered into force Nov. 16, 1994), available at http://www.un.org/depts/los/
convention_agreements/texts/unclos/unclos_e.pdf (last visited Feb. 16, 2014) [hereinafter LOSC].
2.
For the negotiation history of Article 15, see UNITED NATIONS CONVENTION ON THE LAW
A COMMENTARY 135 (Myron H. Nordquist et al. eds., vol. 2, 1993).
OF THE SEA 1982:
3.
See LOSC, supra note 1, arts. 74, 83.
4.
Id.
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Uykur
359
solution.”5 If such an agreement is not reached, the dispute settlement
procedures will come into play. Confronted with these somehow
unsatisfactory references to the “international law” and “equitable
solution,” international courts and tribunals had to develop a law of
maritime delimitation through cautious steps taken over time. Although
one may hardly find every aspect of case law in this field developed in the
right direction, or judgments perfectly consistent, the efforts made by
international adjudication thus far have put forward a body of normative
rules and methods for delimitation. Thus, those international bodies
deserve credit.
Customarily, the North Sea Continental Shelf Cases are taken as the
starting point for the case law on maritime delimitation, although there are
several previous relevant cases in legal history. Here, the most recent three
cases will be focused on: The Black Sea Case, the Case of Bay of Bengal,
and the Case Between Nicaragua and Colombia, with a particular focus on
the impact of islands. The judgments rendered in these cases by the
International Court of Justice (ICJ) and the International Tribunal on the
Laws of the Sea (ITLOS) represent the current state of case law, and as
such, they may provide a useful framework for discussion.
Before moving on to the specifics of each case, some of their
commonalities should be highlighted with respect to geographical settings,
issues raised and the methodology followed. In all three cases, there was
some degree of island involvement, which prompted a discussion on their
effect on the ultimate delimitation line. In all of these cases, the ICJ or the
ITLOS followed a three-step methodology in addressing the dispute. These
steps involved:
1)
2)
3)
Establishing a provisional equidistance line;
Evaluating the presence and effects of relevant
circumstances, and whether any adjustment is needed on
the provisional equidistance line; and finally, and
Applying a disproportionality test to the (modified)
equidistance line.
Additionally, base points, relevant coasts, and relevant areas have been
issues under dispute in all cases. Finally, there was a significant degree of
concavity of coastline, at least in two of these cases, which called for
further discussion as to whether the equidistance line produced a cut off
effect to the detriment of one side.
5.
L. D. M. Nelson, The Roles of Equity in the Delimitation of Maritime Boundaries, 84 AM.
J. INT’L L. 837, 844–45 (1990) (indicating that reference to equidistance was not agreed upon during the
negotiations on Articles 74 and 83).
360
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Black Sea Case (Romania v. Ukraine)
In Romania v. Ukraine, the parties have asked the ICJ to determine the
delimitation line between them in the northwestern part of the Black Sea.
Given the concave nature of the overall coastline, it was critical for the
Court to determine relevant coasts and base points to establish the
provisional equidistance line. The presence of gulfs and firths was
particularly problematic. The Court decided not to take into consideration
the coasts of Karkinitska Gulf, which is part of Ukraine, when calculating
the length of each side’s relevant coasts.
The more controversial issue, however, was determining the degree of
impact the Ukrainian island of Serpents had on the overall delimitation
line.6 Having heard conflicting views of the parties, the Court neither took
the islet into account when establishing the provisional equidistance line,
nor considered it as a relevant circumstance calling for an adjustment of
that line. On this point, the Court relied on its own precedent where it
“decide[d] not to take account of very small islands or decide[d] not to give
them their full potential entitlement to maritime zones, should such an
approach have a disproportionate effect on the delimitation line.”7 Having
considered the arguments of parties on relevant circumstances and having
applied the disproportionality test, the Court found no basis to make
adjustments on the delimitation line it had established.8
B.
Delimitation in the Bay of Bengal (Bangladesh v. Myanmar)
The Dispute Concerning Delimitation of the Maritime Boundary
Between Bangladesh and Myanmar in the Bay of Bengal, was noteworthy
for being the first delimitation case heard by ITLOS.9 This case was further
known for the Tribunal exercising its jurisdiction to delimit the continental
shelf beyond 200 nautical miles.10
The subject island in this dispute was the Bangladeshi St. Martin’s
Island, which is located off the endpoint of Bangladesh-Myanmar land
6.
Maritime Delimitation in the Black Sea (Rom. v. Ukr.), Judgment, 2009 I.C.J. 62, ¶¶ 186–
88 (Feb. 3), available at http://www.icj-cij.org/docket/files/132/14987.pdf (last visited Feb. 16, 2014).
7.
Id. ¶ 185 (recognizing the twelve-mile territorial sea of the islet since there was already an
agreement on this point between the two sides).
8.
Id. ¶ 187.
9.
Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar
in the Bay of Bengal (No. 16) (Bangl. v. Myan.), Case No. 16, Judgment of Mar. 14, 2012, available at
http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/1-C16_Judgment_14_02_2012.pdf
(last
visited Feb. 16, 2014).
10.
Id. ¶¶ 450–62.
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361
border.11 Despite Myanmar’s arguments to the contrary, the Tribunal
accorded full effect to the Island in the delimitation of the territorial sea by
taking into account the size, population, and economic activities over the
island.12 The Tribunal also took note of the assurances given by
Bangladesh to Myanmar with respect to unimpeded use of the right of
passage of the latter’s ships through Bangladeshi territorial sea.13 However,
when it came to determining base points for the purpose of establishing the
provisional equidistance line, the Tribunal excluded St. Martin’s Island as a
source of base points.14 Furthermore, because it would have resulted in
“blocking the seaward projection from Myanmar’s coast,” the Tribunal did
not give any effect to St. Martin’s Island in drawing the delimitation line,
the EEZ, and the continental shelf.15
Taking into account the concavity of the Bangladeshi coastline and the
potential for a cut-off effect, the Tribunal exercised a certain adjustment on
the equidistance line, and decided a single maritime boundary.16 It also
decided that the same line should continue beyond the two hundred nautical
miles in order to mark the lateral boundary of the extended continental
shelves of the two parties.17
C.
Territorial and Maritime Dispute (Nicaragua v. Colombia)
The ICJ settled the third case under analysis in this article, the
Territorial and Maritime Dispute Between Nicaragua and Colombia in
November 2012. The significant issue in this case involved the presence of
remote Colombian islands, which were separate from their own mainland
and facing the Nicaraguan mainland. After settling the sovereignty dispute
over certain islands and islets, the Court turned to the delimitation issue. It
was critical to determine the relevant coasts and the applicable maritime
area. This was because Colombia had aimed at limiting the dispute to the
area between the Nicaraguan mainland and the area westward of the
Colombian islands. However, due to the fact that overlapping claims have
extended 200 miles from the Nicaraguan coasts, the Tribunal decided that
11.
Id. ¶ 131.
12.
Id. ¶ 153.
13.
Id. ¶¶ 174–76.
14.
Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar
in the Bay of Bengal, Case No. 16, ¶ 265.
15.
Id. ¶¶ 318–19.
16.
Id. ¶ 323.
17.
Id. ¶ 462.
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the entire maritime space within that distance, including the area east of the
Colombian islands, would form the relevant area.18
The Court has essentially adopted the Colombian approach on two
issues. It first acknowledged that the Colombian islands should have a
twelve mile territorial sea because there was no overlap with the
Nicaraguan territorial sea. Secondly, it rejected the Nicaraguan arguments
for enclaving the Colombian islands.19 On this basis, the Court selected
base points on the Nicaraguan islands off the mainland and on relatively the
more significant Colombian islands, disregarding small uninhabitable
features.20 It went on establishing a provisional delimitation line by taking
reference of these base points.21 Then, taking into account the disparity on
coastal lengths, it adjusted this provisional line by giving three times more
weight to Nicaraguan base points than Colombian base points.22 On the
other hand, the Court has applied enclave solution for two remote islets, and
did not grant any maritime zone beyond a twelve mile territorial sea to
“rocks” within the scope of LOSC Article 121(3).23
III. SOME OBSERVATIONS ON CRITICAL ISSUES
REFERRED TO IN CASE LAW
A.
Equidistance Method—Three-Stage Delimitation Methodology
These most recent ICJ and ITLOS judgments have been decided
unanimously (with the exception of one judge dissenting in Bay of
Bengal),24 which suggests a growing unified understanding in the
application of delimitation methodology. This three-stage delimitation
methodology, however, should be taken into consideration with some
caution, particularly when it comes to more complex geographical settings.
Having in mind that the ICJ applied “angle-bisector method” in the
18.
Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment, 2012 I.C.J. 124, ¶ 159
(Nov. 19), available at http://www.icj-cij.org/docket/files/124/17164.pdf (last visited Feb. 16, 2014).
19.
Id. ¶ 230 (positing that creating enclaves for Colombian islands would adversely affect
“orderly management of maritime resources, policing and the public order of the oceans, which would
be better served by a simpler and more coherent diversion of the relevant area”).
20.
See generally id. ¶ 238.
21.
Id. ¶ 234.
22.
Id.
23.
Territorial and Maritime Dispute, 2012 I.C.J. ¶ 238.
24.
See Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and
Myanmar in the Bay of Bengal, Case No. 16, ¶ 506(4)–(5) (the part of the judgment regarding the single
maritime boundary).
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Nicaragua versus Honduras case,25 there may be a need for applying other
methods of delimitation, depending on the geographical context. The truth
is that the equidistance method per se has never been endorsed, as the
leading method either in treaty law or in case law. Its use may prove to be
more convenient in simple geographical contexts, but it is the geography
and other circumstances of each case that determine the applicable
method.26 The ultimate goal is always to achieve an equitable result.
B.
Single Delimitation Boundary
There is a growing tendency to use a single delimitation line for both
the continental shelf and EEZ. The Courts, however, while seeking a single
maritime boundary solution, have so far exercised extreme caution
concerning the mandate given to them by the parties to the dispute in this
regard.
C.
The Selection of Base Points
Although the selection of base points and baselines is basically an
issue within the discretion of the respective coastal state (LOSC Articles 5
to 16), the ICJ or ITLOS settling a dispute does not consider itself bound by
these selections of the coastal state.27 The Court selects the base points for
the purpose of delimitation by taking into account all relevant factors and
the principles of equity.28
D.
Islands
1. Selection of Islands as Base Points
At a different level, the selection of base points also comes forward as
a matter of mitigating the extreme outcomes that may result from a strict
application of equidistance method.29 Base points should reflect the
physical geography of the relevant coasts.30 In seeking to avoid an
25.
Territorial and Maritime Dispute in the Caribbean Sea (Nicar. v. Hond.), Judgment, 2007
I.C.J. 659, ¶ 83 (Oct. 8), available at http://www.icj-cij.org/docket/files/120/14075.pdf (last visited Feb.
16, 2014).
26.
See also Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and
Myanmar in the Bay of Bengal, Case No. 16, ¶ 235.
27.
See generally Maritime Delimitation in the Black Sea, 2009 I.C.J. ¶ 137; Territorial and
Maritime Dispute, 2012 I.C.J. ¶ 200.
28.
Maritime Delimitation in the Black Sea, 2009 I.C.J. ¶ 185.
29.
Id. ¶ 144.
30.
Id. ¶ 137.
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“unwarranted distortion of the delimitation line,” international courts and
tribunals may disregard islands when selecting a base point. Even an
island, which is granted a full territorial sea, may be discounted for the
purposes of the delimitation of the continental shelf and EEZ. Examples
include the Serpents Island in the Black Sea and St. Martin’s Island in the
Bay of Bengal.31
2. “Rocks Which Cannot Sustain Human Habitation or Economic Life of
Their Own”32
After a gradual progression of the ICJ decisions on declaring the
customary law nature of the paragraphs of Article 121, the Court finally
found Paragraph 3 of the said Article to reflect customary international
law.33 One may argue that the impact of this statement is rather limited as
far as the overall delimitation law is concerned since entitlement and
delimitation are related, yet separate issues. In the case between Nicaragua
and Colombia, however, it is significant that the Court adopted an enclave
solution for remote and minor islets.34 This may be a precedent particularly
with respect to minor insular features, which are close to another state’s
mainland.
3. Whether and To What Extent Islands May Generate Continental
Shelf and EEZ in a Particular Context
LOSC Article 121, Paragraph 2 recognizes that islands are entitled to
territorial sea, contiguous zone, continental shelf, and EEZ,35 just as other
land territory. This provision, however, needs to be effectuated by taking
into account the specificities of each individual case in the process of
maritime delimitation. In situations where islands create a cut-off effect to
the detriment of one side, these islands often have limited or no effect on
31.
Id. ¶ 149.
32.
Territorial and Maritime Dispute, 2012 I.C.J. ¶ 139.
33.
Id. It should be recalled that the Court has previously refrained from qualifying Article
121(3) as a rule of customary international law. See Maritime Delimitation and Territorial Questions
Between Qatar and Bahrain (Qatar v. Bahr.), Judgment, 2001 I.C.J. 87, ¶ 185 (Mar. 16), available at
http://www.icj-cij.org/docket/files/87/7027.pdf (last visited Feb. 16, 2014).
34.
35.
¶ 185.
Territorial and Maritime Dispute, 2012 I.C.J. ¶ 238.
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, 2001 I.C.J.
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the delimitation line.36 This point is well established in earlier case law and
in state practice. The recent aforementioned judgments reiterate this point.
Neither Serpents Island in the Black Sea, nor St. Martin’s Island in the
Bay of Bengal, were given any effect on the single maritime boundary.37
Although certain Colombian islands were granted continental shelf and
EEZ in the Caribbean Sea, the base points selected on these islands were
nevertheless given a one-third reduced effect.38 Furthermore, in cases of
concave coasts, the cut-off effect against the mainland might become more
acute, calling for an adjustment of the provisional line, as ITLOS did in Bay
of Bengal.39 Hence, a cut-off effect, which may result from islands on the
wrong side or coastal configuration, is a major consideration in all
delimitation cases, prompting the Court to take action to eliminate such
negative effects.40
E. Extent of the Territorial Sea Islands May Generate—A Critique
Concerning the Judgment in Nicaragua v. Colombia
A point of criticism concerning the judgment in Nicaragua v.
Colombia is the way the ICJ regarded the territorial sea of islands. The
Court stated the power of a coastal state to declare the full twelve mile
territorial sea in a rather categorical way. It referred to only two possible
grounds for limiting their territorial sea to a lesser breadth: 1) an overlap
between territorial sea entitlements of states, or 2) the presence of a historic
or agreed boundary.41 However, this statement, which is suggestive of a
rather absolute application of a twelve mile territorial sea, is open to
questioning vis-à-vis the historical evolution of the breadth of territorial sea,
the letter of LOSC Article 3, and relevant state practice.42 The issue of the
breadth of the territorial sea was the reason states convened at the Second
Geneva Conference on the Law of the Sea in 1960.43 The Conference
36.
See generally Dispute Concerning Delimitation of the Maritime Boundary Between
Bangladesh and Myanmar in the Bay of Bengal, Case No. 16, ¶ 292; see generally Territorial and
Maritime Dispute, 2012 I.C.J. ¶¶ 186, 215.
37.
Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar
in the Bay of Bengal, Case No. 16, ¶ 319; Maritime Delimitation in the Black Sea, 2009 I.C.J ¶¶ 187–88.
38.
Territorial and Maritime Dispute, 2012 I.C.J. ¶ 234.
39.
Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar
in the Bay of Bengal, Case No. 16, ¶¶ 325–26.
40.
Id. ¶¶ 319, 324–25.
41.
Territorial and Maritime Dispute, 2012 I.C.J. ¶ 179.
42.
Id. ¶¶ 177–79.
43.
G.A. Res. 1307 (XIII), U.N. Doc. No. A/4034 (Dec. 10, 1958) (The breadth of territorial
sea and the extent of fishing rights of coastal states were the two issues the Second Conference had the
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ended without agreement on this basic issue.44 When Article 3 of the
LOSC was drafted later at the Third Conference on the Law of the Sea in
the 1970s, it was formulated so as to indicate the maximum breadth of the
territorial sea.45 This formulation was aimed at indicating what is
permissible at maximum if there are no other circumstances that require a
narrower breadth.46 State practice supports the view that a narrower
breadth of territorial sea for islands may be established, due to navigation or
security considerations in limited marine space.47
Such state practices of opting for a limited maritime zone less than the
maximum breadth allowed in the LOSC include the Belize legislation.
Belize adopted its breadth of territorial sea as twelve miles from the
baselines, but determined a three-mile territorial sea at a specific area, from
the mouth of Sarstoon River to Ranguana Caye.48 The reason for the
differentiation of its territorial seas is clearly indicated in the same
legislation as “to provide a framework for the negotiation of a definitive
agreement on territorial differences with the Republic of Guatemala.”49
Another example is the Finnish legislation on its territorial seas.
Finland declared a twelve mile territorial sea in principle, but stated that
“[i]n the Gulf of Finland, the outer limit of the territorial sea at no place be
closer to the midline than three nautical miles.”50 Japanese legislation on
the territorial sea is another example of self-imposed restriction on the
breadth of its own territorial sea. As in the previous examples, Japan also
declared a twelve mile territorial sea, but indicated that a three-mile
territorial sea would apply to the so-called “designated areas,” including
mandate to tackle.); see also Arthur H. Dean, The Second Geneva Conference on the Law of the Sea:
The Fight for Freedom of the Seas, 54 AM. J. INT’L L. 751, 752 (1960); AARON LOUIS SHALOWITZ &
MICHAEL W. REED, SHORE AND SEA BOUNDARIES 269 (2000), available at
http://www.nauticalcharts.noaa.gov/hsd/docs/CSE_library_shalowitz_v1p3ch2.pdf (last visited Feb. 16,
2014).
44.
SHALOWITZ & REED, supra note 43, at 275.
45.
See generally LOSC, supra note 1, art. 3.
46.
See id.
47.
See Territorial and Maritime Dispute, 2012 I.C.J. ¶¶ 221–22.
48.
Office of Legal Affairs, U.N. Div. for Ocean Affairs & the Law of the Sea, Law of the Sea
Bulletin No. 21, 3 (1992).
49.
Id.
50.
Office of Legal Affairs, U.N. Div. for Ocean Affairs & the Law of the Sea, Law of the Sea
Bulletin No. 29, 56 (1995) (Van Dyke indicates that the reason for this declaration of limited territorial
sea in the Gulf of Finland was to provide uninterrupted passage for Russia, which maintains the Port of
Kaliningrad.); Jon M. Van Dyke, The Aegean Sea 2000, Proceedings of the International Symposium on
the Aegean Sea, in MARITIME DELIMITATION IN THE AEGEAN SEA 165, 167 (2000).
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367
certain sounds and channels.51 Such legislation was aimed at ensuring an
unimpeded passage to the Korean Strait and Tsugaru Strait.52 The common
rationale behind this move for a self-restriction was to avoid conflict with
neighbors and to give opportunity to conciliation with them.
In light of the above examples of state practice and the formulation of
Article 3 of the LOSC, one may argue that ICJ acted too categorically in its
judgment in Nicaragua v. Colombia when it stated that islands would
generate a twelve mile territorial sea. This statement is likely to create
difficulties particularly in areas where a group of islands might create a cutoff effect against another coastal state if they were given a twelve-mile
territorial sea.
Although the ICJ or the ITLOS in these recent cases granted a full
twelve-mile territorial sea to islands, it should be underscored that the
disputes involved geographical circumstances where rather large marine
spaces were available to the respective parties.53 In other words, the
geography has allowed a full territorial sea for islands.54 However, in other
geographies with limited marine space, it would be foreseeable to grant a
more narrow territorial sea. Depending on the particularities of the region,
state practice indicates the necessity for a narrow territorial sea for some
islands.55
IV. CERTAIN PENDING DISPUTES AND THE WAY AHEAD
In light of the recent judgments of the ICJ and the Tribunal, it would
be helpful to reconsider several unsettled delimitation disputes worldwide.
These disputes involve islands that may be classified as complex due to
their geographical setting. A geographically complex area is the Caribbean
Sea, where twenty-two sovereign states and seventeen overseas territories
of other countries are present.56 There is rather limited access of the sea to
wider oceans due to the location of various chains of islands, and
consequently, the Caribbean is regarded as a semi-enclosed sea.57 Given
51.
Office of Legal Affairs, U.N. Div. for Ocean Affairs & the Law of the Sea, Law of the Sea
Bulletin No. 35, 71 (1997).
52.
See SHALOWITZ & REED, supra note 43, at 272 (The designated areas include the Soya
Kaikyo, the Tugaru Kaikyo, the Tusima Kaikyo Higasi Suido, the Tusima Kaikyo Nisi Suido, and the
Osumi Kaikyo.).
53.
See Territorial and Maritime Dispute, 2012 I.C.J. ¶ 231.
54.
Id. ¶ 176.
55.
See generally id. ¶¶ 176–77.
56.
Chris Carleton, Maritime Delimitation in Complex Island Situations: A Case Study on the
Caribbean Sea, in MARITIME DELIMITATION 153, 166 (Rainer Lagoni & Daniel Vignes eds., 2006).
57.
Id.
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this geographical complexity, the determination of delimitation lines has
extended over some decades among countries, either through negotiation or
through third party dispute settlement.58
Adopting the median line in negotiated agreements has been a
common approach in this region, since the relatively even positioning of the
Leeward and Windward Islands have made it possible to take the median
line as a basis.59 When it came to the more difficult task of dealing with
islands closer to another state’s mainland, adopting the equidistance line
was insufficient to solve the dispute. This point particularly concerns
Colombia and Venezuela, both of which have islands remote from their
respective mainlands. In Nicaragua v. Colombia, the Court did not adopt
Nicaragua’s argument for a limited territorial sea for Colombian islands.
However, the resulting delimitation line did not cut Nicaragua completely
off from access to high seas, due to the availability of marine space.60 On
the other hand, it is often stressed that Venezuela’s tiny Aves Island is a
likely source of problems for delimitation.61 In situations with more limited
marine space, islands may hardly receive the full extent of maritime zones.
In the South China Sea, the claim raised by the People’s Republic of
China for a “U-shaped line,” which covers considerable marine areas on the
basis of claimed sovereignty over islands and historic title, is disputed by
the countries in the region.62 The conflicting claims in this region largely
depend on arguments for sovereignty over islands. Hence the rules of
evidence regarding effectivités, critical dates, evidentiary values of maps,
and the existence of prior agreements, as referred to in Nicaragua v.
Colombia, will be relevant in this context. The Declaration on the Conduct
of Parties in the South China Sea of 2002 was an important step in terms of
moving ahead in a peaceful manner.63 It is critical that states in the region
58.
Id. at 170–83.
59.
Id. at 186.
60.
See generally Territorial and Maritime Dispute, 2012 I.C.J. ¶¶ 215–l6.
61.
5 INTERNATIONAL MARITIME BOUNDARIES 3410–11 (David A. Colson et al. eds., 2005);
NUNO SÉRGİO MARQUES ANTUNES, TOWARDS THE CONCEPTUALİSATİON OF MARİTİME DELİMİTATİON:
LEGAL AND TECHNİCAL ASPECTS OF A POLİTİCAL PROCESS 297 (2003).
62.
Letter from Ban Ki-Moon, U.N. Secretary-General (May 7, 2009), available at
http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf
(last visited Feb. 2, 2014) (The map of the People’s Republic of China position is available as an
attachment to the Communication dated May 7, 2009 by the People’s Republic of China to the U.N.
Commission on the Limits of the Continental Shelf with regard to the joint submission by Malaysia and
Vietnam to the Commission on May 6, 2009.).
63.
Declaration of the Conduct of Parties in South China Sea, ASSOCIATION OF SOUTHEAST
ASIAN NATIONS (Nov. 4, 2002), http://www.asean.org/asean/external-relations/china/item/declarationon-the-conduct-of-parties-in-the-south-china-sea (last visited Oct. 22, 2013).
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avoid furthering excessive claims that may jeopardize the peaceful
relations.
There are also a number of controversies going on in the Eastern
Mediterranean.
While the Aegean dispute remains unsettled, the
differences concerning the area around the island of Cyprus has been
calling attention with the increasing prospects of exploiting hydrocarbon
reserves.64 The parties of the islands and their views differ significantly
regarding maritime delimitation. While the Aegean dispute involves two
coastal states, Turkey and Greece, the latter case involves a number of
coastal countries, some of which have already signed bilateral agreements
between themselves.65
Regarding the discord on the area surrounding Cyprus, a number of
initiatives have been taken in recent years by the Greek Cypriot
Administration to delimit its maritime boundaries through bilateral
agreements.66 The prospect of exploring hydrocarbon deposits has
prompted reaction on part of both the Turkish Cypriot Government and
Turkey.67 A number of steps taken by the Greek Cypriot side to this end
include: Declaring an EEZ, signing bilateral agreements with three
64.
See generally Office of Legal Affairs, U.N. Div. for Ocean Affairs & the Law of the Sea,
Law of the Sea Bulletin No. 54, 127 (2004); Office of Legal Affairs, U.N. Div. for Ocean Affairs & the
Law of the Sea, Law of the Sea Bulletin No. 59, 34 (2005).
65.
See TULLIO SCOVAZZI, THE GERMAN MARSHALL FUND OF THE U.S., MARITIME
BOUNDARIES IN THE EASTERN MEDITERRANEAN SEA 6 (2012), available at http://www.gmfus.org/wpcontent/blogs.dir/1/files_mf/1339504227Scovazzi_MaritimeBoundaries_Jun12.pdf (last visited May 7,
2014). For a Turkish perspective on this issue, see generally SERTAÇ HAMI BAŞEREN, DOĞU AKDENIZ
DENIZ YETKI ALANLARI UYUŞMAZLIĞI [DISPUTES OVER EASTERN MEDITERRANEAN MARITIME
JURISDICTION AREAS] (2011), available at http://vizyon21yy.com/documan/genel_konular/
Milli%20Guvenlik/Kibris_Ege/Dogu_Akdeniz_Deniz_Yetki_Alanlari_Uyusmazligi.pdf (Two sets of
disputes in the Aegean and in the area involving Cyprus may also merge in a peculiar way to the
detriment of Turkey, if Greek Cypriot Administration insists on extending maritime zones westward of
the Island to the maximum, and if Greece also espouses similar claims with respect to the small islet of
Meis (Megisti or Castellorizo), in the Mediterranean, which is very close to the Turkish mainland. The
cumulative effect of such claims would be to deny any substantial maritime zone to Turkey beyond its
territorial sea in the Mediterranean. Had it ever been a basis for consideration, this situation would have
served as a perfect example of an inequitable result arising from disproportionate effect of islands to cut
off a coastal state in this case Turkey, from access to high seas.).
66.
Earlier official communications made by Turkey in this regard are published in Law of the
Sea Bulletin No. 54, supra note 64, at127; Law of the Sea Bulletin No. 59, supra note 64, at 34 (Turkey
has made particular reference to its rights on the area west of the longitude 32° 16’ 18.” This line is
crucial due to the fact that it marks a critical point the west of where the southward projection of
southern coasts of Turkey is no more curtailed by Cypriot landmass); Greek Cypriot Administration’s
recent statement of position is found in Office of Legal Affairs, U.N. Div. for Ocean Affairs & the Law
of the Sea, Law of the Sea Bulletin No. 79, 63 (2013).
67.
Id.
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neighboring countries in the south and southeast of the Island, and granting
exploration permits to private companies.68 These moves were met with
protest and caused some countermoves from the Turkish side, as a result to
their prejudice to Turkish rights existing in the same geographical area.69
Turkish reaction mainly encompasses two points: The Greek Cypriot
Administration is not in a position to represent Cyprus as a whole, and that
any action taken by the said authority should not prejudice the rights of
Turkey or Turkish Republic of Northern Cyprus.70 It may be concluded
that a plausible and viable delimitation process therein to provide a solution
at the regional level is conditioned upon the settlement of the Cyprus
problem. Evidently, in the Eastern Mediterranean region, it is critical not to
infringe upon the rights of third party states in two situations: When
signing bilateral agreements with other countries in the region, or while
entering into deals with private companies.71 Any act to the contrary
prompts reaction from those countries whose rights are infringed upon or
prejudiced.
V. CONCLUSION
What the aforementioned case law suggests is that islands may have
limited or no maritime zones, depending on the specific features of any
given case. It has never been sanctioned by international law on maritime
delimitation to cut-off a coastal state from its access to the high seas. This
point becomes even more relevant in situations where islands are located
close to the mainland of another country. In the latter instance, islands
either generate a lesser degree of maritime zone or no zone at all beyond
their territorial sea.
The three-stage delimitation methodology has been consistently used
in recent cases involving maritime disputes. However, this trend does not
diminish the importance of other methods. Geographical factors and other
circumstances of each case will determine the applicable delimitation
method. Whichever delimitation method is pursued, the selection of base
points remains a crucial point. Considerations of proportionality will come
68.
See generally SCOVAZZI, supra note 65, at 6–8.
69.
Id. A comprehensive recount of recent events and the legal analysis of the relevant
parties’ positions can be found in SERTAÇ HAMİ BAŞEREN, DOĞU AKDENİZ DENİZ YETKİ ALANLARI
SINIRLANDIRMASI SORUNU: TARAFLARIN GÖRÜŞLERİ, ULUSLARARASI HUKUK KURALLARINA GÖRE
ÇÖZÜM VE SONDAJ KRİZİ [DELIMITATION OF MARITIME JURISDICTION ZONES IN THE EASTERN
MEDITERRANEAN: VIEWS OF PARTIES, SOLUTION ACCORDING TO THE INTERNATIONAL LAW, AND THE
DRILLING CRISIS] 253–305 (2013).
70.
Id.
71.
See generally SCOVAZZI, supra note 65, at 10.
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371
into play as a test for the equitableness of the delimitation line is
established. Achieving an equitable solution for all parties concerned is the
ultimate goal of all delimitation processes.
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ILSA Journal of International & Comparative Law.
More information and an online application for membership in the ILA
American Branch are available on the ILA Website at
http://www.ambranch.org/fee.htm.
INTER-AMERICAN CENTER FOR HUMAN RIGHTS
NOVA SOUTHEASTERN UNIVERSITY, SHEPARD BROAD LAW CENTER
3305 COLLEGE AVE, FORT LAUDERDALE, FL 33314
http://www.nsulaw.nova.edu/iachr/index.cfm
The Inter-American Center for Human Rights is a response to the profound need in South Florida for
an organization that is committed to furthering the civil and human rights of our diverse communities
and people. Recent projects are included on the IACHR website along with links.
Prof. Charlene Smith
Executive Director
NSU Shepard Broad Law
Center
Prof. Michele Struffolino
Member
NSU Shepard Broad Law
Center
Prof. Kathy Cerminara
Member
NSU Shepard Broad Law
Center
BOARD OF DIRECTORS
Prof. James D. Wilets
Chair
NSU Shepard Broad Law
Center
Prof. Jane Cross
Member
NSU Shepard Broad Law
Center
Prof. Areto Imoukhuede
Member
NSU Shepard Broad Law
Center
Prof. Douglas L. Donoho
Vice Chair
NSU Shepard Broad Law
Center
Prof. Florence Shu-Acquaye
Member
NSU Shepard Broad Law
Center
Prof. Timothy Canova
Member
NSU Shepard Broad Law
Center
STUDENT OFFICERS
Samantha Seltzer, Student Director
Natasha Shaikh, Student Director
Brittany Henderson, Secretary
Ricki Frand, Treasury Chair
Michelle Suarez, Public Relations Chair
Donna McMillan, Volunteer Coordination Chair
STUDENT STAFF
Adriana Alvarez
Arielle Bishop
Cristina Bosmenier
Devika Carr
Christopher Dutton
Leer Gloger
Judith Gorin-Lewis
Brittany Henderson
Matthew Hinds
Jessika Jackson
Ryan Lipella
Scheril Murray- Powell
Jeannette Oliva-Perez
Sandra Perez
Trevor Pusch
Valerie Raphael
Terry Roberts
Kimberly Rogers
Chad Rubin
Amanda Sanichar
Macarena Santos
Julia Sturgill
Mauricio Vaca
Tova Verchow
Anastasia White
Krystal Wilkinson
ILSA Journal of International & Comparative Law
NOVA SOUTHEASTERN UNIVERSITY
Shepard Broad Law Center
The ILSA Journal of International & Comparative Law is housed at Nova
Southeastern University’s Shepard Broad Law Center in Fort Lauderdale,
Florida, and is an International Law Students Association publication. The
ILSA Journal of International & Comparative Law publishes three editions
every year, including is a compilation of notes, comments, and essays; the
International Practitioners’ Notebook; and the Bilingual Edition.
Subscriptions: The subscription price is $30.00 per volume per year for
domestic subscribers and $35.00 per volume per year for foreign
subscribers. Subscriptions are renewed automatically unless the subscriber
sends a timely notice of termination. All notifications of address changes
should include the old and new addresses.
For subscriptions, please cut out the attached coupon and mail to:
Subscriptions Editor
ILSA Journal of International & Comparative Law
Nova Southeastern University, Shepard Broad Law Center
Law Library & Technology Center, Room L112
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