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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 xxii 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 xxiii 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 xxiv 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. 248 ILSA Journal of International & Comparative Law [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 250 ILSA Journal of International & Comparative Law [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. 252 ILSA Journal of International & Comparative Law [Vol. 20:2 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] Donovan 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. 254 ILSA Journal of International & Comparative Law [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. 2014] 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. 256 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Donovan 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. 258 ILSA Journal of International & Comparative Law [Vol. 20:2 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 2014] Donovan 259 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). 262 ILSA Journal of International & Comparative Law [Vol. 20:2 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]. 2014] Goldstein 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). 264 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Goldstein 265 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. 266 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Goldstein 267 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). 268 ILSA Journal of International & Comparative Law 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. 270 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] 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). 272 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Goldstein 273 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. 274 ILSA Journal of International & Comparative Law [Vol. 20:2 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 278 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 280 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Marhic 281 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. 282 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] 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 284 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 286 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Nanda 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 288 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Nanda 289 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). 290 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] 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. 292 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Nanda 293 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. 294 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Nanda 295 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. 296 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Nanda 297 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 ILSA Journal of International & Comparative Law 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. 2014] Nanda 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 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Nanda 301 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 302 ILSA Journal of International & Comparative Law [Vol. 20:2 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] Nanda 303 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. 304 ILSA Journal of International & Comparative Law [Vol. 20:2 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 306 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 308 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 310 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 312 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] 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). 314 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Scharf 315 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. 316 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Scharf 317 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. 318 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Scharf 319 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. 320 ILSA Journal of International & Comparative Law [Vol. 20:2 “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 2014] Scharf 321 [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. 322 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Scharf 323 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. 324 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Scharf 325 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. 326 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Scharf 327 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. 328 ILSA Journal of International & Comparative Law [Vol. 20:2 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 2014] Scharf 329 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). 330 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Scharf 331 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). 332 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Scharf 333 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). 334 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Scharf 335 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. 336 ILSA Journal of International & Comparative Law [Vol. 20:2 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 2014] Scharf 337 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). 338 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Scharf 339 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. 340 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Scharf 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. 344 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Sterio 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. 346 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Sterio 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). 348 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Sterio 349 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) 350 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Sterio 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). 352 ILSA Journal of International & Comparative Law [Vol. 20:2 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”). 2014] Sterio 353 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 354 ILSA Journal of International & Comparative Law [Vol. 20:2 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 2014] Sterio 355 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). 356 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 358 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] 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 A. ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Uykur 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. 362 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Uykur 363 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. 364 ILSA Journal of International & Comparative Law [Vol. 20:2 “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. 2014] Uykur 365 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 366 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Uykur 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. 368 ILSA Journal of International & Comparative Law [Vol. 20:2 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). 2014] Uykur 369 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. 370 ILSA Journal of International & Comparative Law [Vol. 20:2 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. 2014] Uykur 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. INTERNATIONAL LAW STUDENTS ASSOCIATION THE INTERNATIONAL LAW RESOURCE - NETWORKING &EXCHANGE OPPORTUNITIES - EMPLOYMENT &CAREER DEVELOPMENT - ACADEMIC & PROFESSIONAL DEVELOPMENT For additional information contact the ILSA Executive Office at [email protected]. AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW AND PRACTICE http://www.abanet.org/intlaw/ The ABA Section of International Law and Practice assists in international policy development, promoting the rule of law, and educating legal practitioners. Since 1933, it has been involved in a wide range of legal activities and international legal issues. 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