ASIL 2017 Recap: International Law and the Trump Administration: National and International Security

By: Loren Turner

During these first 100 days of a Donald Trump presidency, the American Society of International Law (ASIL) has led efforts to bring together experts from both sides of the political spectrum to talk about international law under the Trump administration. ASIL has produced a series of freely-available webinars that analyze the Trump administration and (1) the future of international agreements; (2) U.S. engagement with the United Nations; (3) U.S. participation in global trade agreements; and (4) the future of environmental agreements.

On Thursday, April 13, 2017, during ASIL’s annual meeting, experts assembled once again to discuss international law under the Trump administration, but this time through the lens of national and international security.  The program was certainly timely, as it occurred the same day we learned the United States had dropped the “Mother of All Bombs” on Afghanistan and accidentally bombed allies in Syria.

Benjamin Wittes of the Brookings Institution served as moderator to a panel of three experts on international law and politics: Shireen Hunter of Georgetown University’s School of Foreign Service; John Bellinger, legal adviser for the U.S. Department of State and the National Security Council during the George W. Bush administration; and Elisa Massimino, the President and Chief Executive Officer of Human Rights First.

In her opening remarks, Shireen Hunter identified herself as the voice of “political realism.”  She said laws are the outcomes of social and political processes.  Law is important but it is politics that change things and the laws change when society and politics change.  International law succeeds when there are common interests.  For example, even during conflict, the mail still gets delivered.  Maritime trade continues because those common interests remain.  But international relations and the rule of law are based on power.  Those nations with power, use that power to get what they want and there is no enforcement mechanism that stops them.  Saddam Hussein bombed Saudi Arabia with impunity.  Russia annexed Crimea and the international community did nothing to stop it.  No one abides U.N. Security Council resolutions, which are supposed to be binding.  The ideal is to implement the rule of law but the reality is that international relations is based on power and is skewed. We need a balance of power before international law is respected. We need creative ways of encouraging international cooperation and hence strengthening international law.

On the topic of human rights and Syria, Ms. Hunter said that she witnessed the abuse of human rights rhetoric when she served on the United Nations Human Rights Committee.  The United States would claim to honor human rights, but then sell bombs to nations that routinely violate human rights.  We had waterboarding under the Bush administration.  Trump doesn’t really care about the Syrian people.  Syria is a test case of which nation is going to be the next hegemon in that part of the world. Humanitarian intervention is a new phenomenon and it causes a lot of deaths.  Look at Libya, at Iraq.  Bombing Syria for humanitarian reasons is a smokescreen.  If the Trump administration wanted to follow international law, it would conduct an investigation to make sure Assad really did employ those chemical weapons.

John Bellinger first identified Trump as a danger to national security in a blog post he wrote for Lawfare in 2015.  In August 2016, he joined a group of 50 other former G.O.P. national security advisers to publicly state that “Trump lacks the character, values, and experience to be President.”  Mr. Bellinger said there is significant cause for alarm, but there may also be rays of hope.  According to Mr. Bellinger, there are some serious lawyers that could be joining the Trump administration and, if they do so, the administration may begin to settle down.  Mr. Bellinger noted, however, that Trump is dividing the country and that it is extremely destabilizing when Trump says he doesn’t support the international obligations of the United States.

As to the topic of Syria, Mr. Bellinger said that Trump might have recklessly gotten to the right place.  We all know the Syria strike is not legal under international law.  Is it justified though? One of the most troubling images associated with the Syria strike is the photo of Trump getting briefed about the strikeThere were no lawyers in the room.  Did international law inform the decision at all?  Mr. Bellinger would not have wanted to wait for the results of a full investigation to confirm Assad released the chemical weapons, but international lawyers need to be consulted before a reaction like this.

Elisa Massimino began her remarks with the question: we haven’t reached 100 days yet, right?  Feels like 100 years.  According to Ms. Massimino, the Trump administration’s budget proposal for the United Nations speaks volumes as to what the administration thinks of human rights and norms. The administration’s focus is on hard security.  Yet, the foundation of human rights is the best way to achieve peace and security in the world.

Ms. Massimino argued that the refugee policy is a huge threat to the national security of the United States and also our allies in Europe.  Additionally, the administration’s rhetoric on refugees, torture, and increased prosecutions for illegal entry, all pose real concerns to those who want adherence to international law and national security.  Trump’s tweets are a big deal and “we are really concerned.”  It is not a coincidence that Assad attacked civilians with chemical weapons right after the administration said that removing Assad was no longer a priority.

According to Ms. Massimino, the Trump administration’s slogan of “America First” is code for isolationism.  The America First campaign might mean America, alone.  Launching missiles is not a strategy.  When the United States withdraws, others scramble to fill the void, and these others (Russia, China, etc.) are putting forth alternative views of how the world should work and these views are not based on rules and norms that promote international law and human rights.

So, what can we do, as international law practitioners and academics?   Both Mr. Bellinger and Ms. Massimino urged audience members to get out and educate the American public – at local, regional, and national levels.  Explain the value of international law, especially how it helps people in their daily lives (airline travel, receiving mail, buying goods at reasonable prices, etc.).  According to Ms. Massimino, “this is our moment as international lawyers and it is up to us whether we can rise to the occasion.”

[Visit ASIL’s YouTube channel to access the full video of this program and others from ASIL’s 2017 annual meeting].

#IALL2016 Recap: Guy Goodwin-Gill on Refugee Law

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By: Amy Flick

Our program on Wednesday, August 3 included a program on “International Refugee Law: Where it Comes From, and Where It’s Going.” This was a timely topic this year, and our speaker was an expert on the subject.  Guy Goodwin-Gill practices as a barrister from Blackstone Chambers in London and has served as Legal Adviser in the Office of the United Nations High Commissioner for Refugees, as an advisor to United Kingdom Parliament Committees on asylum and immigration control, as Professor of asylum law at the University of Amsterdam, as Professor of international refugee law at All Souls’ College of Oxford University, and as founding editor and Editor-in-Chief of the International Journal of Refugee Law.

Goodwin-Gill noted that refugee law developed along with international organizations, so he began with historical background as important to understanding refugee law. The first High Commissioner for Refugees, Fridtjof Nansen, was appointed when the International Committee of the Red Cross wrote to the League of Nations in 1921 about Russian refugees needing attention in the displacements that followed World War I and the Russian Revolution. Nansen identified identification documents as a primary need to allow refugees to travel and find work, so he persuaded states to issue “Nansen passports.” Rather than returning refugees to dangerous environments, he concentrated on allowing states to allow resettlement and employment. The earliest refugee law focused on Russian refugees, but there were three million refugees in need of resettlement after World War I. Aid was provided in a piecemeal fashion as individual groups in need were identified.

In 1933, the League appointed James Grover McDonald as High Commissioner for Refugees to work with the growing number of Jewish refugees from Germany. He found that governments were unwilling to deal with the causes of the refugee crisis and resigned in 1935, with a famous letter of resignation, noting that “conditions in Germany which create refugees have developed so catastrophically that a reconsideration by the League of Nations of the entire situation is essential.”  Goodwin-Gill asserted that the challenges of earlier decades in refugee law are still those of today, where governments need to lead the way and do not.

In 1946, at the first session of the United Nations General Assembly (at the Central Hall Westminster in London), the refugee problem was the second most debated issue, after peace and security. Refugee law “took off” in 1948 with the Universal Declaration of Human Rights and its recognition of the right of persons to seek asylum. Politics are always involved in refugee law, and early refugee law was informed by Cold War politics, with United States policy important in setting the direction of the law. The 1951 Convention on the Status of Refugees was adopted by a United Nations conference and was signed in July 1951. Goodwin-Gill pointed out that the convention is on the status of refugees, concentrating on how refugees are treated, not on the bigger picture of the conditions creating refugees. States sought to limit their obligations, and definitions of who is a refugee were limited to those outside their own country, with a well-founded fear of persecution.

Goodwin-Gill began work with High Commissioner Sadruddin Aga Khan in 1976, and he recommends Aga Khan’s lectures on refugee law at the Hague Academy of International Law as reading for law students. Under Sadruddin Aga Khan, the UNHCR expanded its jurisdiction beyond Europe, encouraged self-sufficiency, and encouraged repatriation and aid to refugees who do return. States were still reluctant to recognize the reasons for refugees to remain, and Aga Khan encouraged mediation of international disputes and recognized that underdevelopment is as much of an issue as conflict. As co-chairman of the Independent Commission on International Humanitarian Issues in 1986, Aga Khan pushed for a new international humanitarian order, with a report on international cooperation to avert new flows of refugees that Goodwin-Gill recommends.

Before the 1980s, there was little writing on “aliens” and the movement between states, but in the 1980s there was an explosion in the literature on refugee law, including Goodwin-Gill’s own book, a fourth edition of which is in the works now.  There was also an explosion of jurisprudence on refugee law that hadn’t existed before, but states wanted procedures for determining refugee status.

In current refugee law, Goodwin-Gill finds that there has been an over-judicialization of refugee law, approached on a case-by-case basis. Human rights jurisprudence has contributed to more progressive thinking on refugees, with human rights law, international humanitarian law, and refugee law all cross-referenced.

The challenges of 2016 include the inability of the European Union states to develop a coherent response to the crisis, which is smaller than earlier crises like that of the 1930s. EU states have been reluctant to provide practical help, wanting someone else to be responsible.  Goodwin-Gill argues that there is need to focus on the practice of states. There should be collective action of the European Union, which has principles of cooperation in its treaties. Its failure to respond has left people in limbo and has been a major political failure. The European Union has promised migration agreements to developing countries but has failed to deliver. Forty years after his work with the UNHCR, the world is facing the same challenges. How Europe, and the world, work through the current issues will influence the future of refugee law.

#IALL2016 Recap: The Role of Human Rights in Re-Shaping Investor-State Arbitration

IALL Oxford KebleBy: Herb Somers

On Wednesday afternoon, August 3 at 14.00, Susan Karamanian, Associate Dean for International and Comparative Legal Studies at the George Washington University Law School, began her lecture by describing the process of investor-state arbitration, which is a system under international law that provides an investor an avenue to adjudicate disputes (through international arbitration) against a foreign government. This alternate dispute resolution system exists outside the court systems of the home or host state. The adjudicating body is a panel of three arbitrators chosen by the parties according to the provisions of the investment agreement. Typically, one arbitrator is chosen by the investor, one by the host state, and a third by agreement of the parties.

Such dispute resolution procedures can be found in a multitude of bilateral investment treaties (BITs) between individual countries, as well as in some international trade agreements such as the North American Free Trade Agreement (NAFTA). These agreements typically authorize the investor  (the home state party) to request an arbitration  when there is a violation of the BIT by the nation in which the investment is located (the host state). A typical BIT will provide the investor protection against expropriation without due process, most favored nation status as well as other equal protection provisions and general guarantees of fair and equitable treatment. The investment treaty also allows the investor to choose from an array of arbitration rules such as those used by the International Centre for Settlement Dispute (ICSID), or the UN  Conference on Trade and Development UNCTAD).

The selected arbitrators in a specific case must decide all issues in accordance with the chosen arbitration rules and they must also adjudicate the dispute consistent with the treaty provisions at hand and  all applicable rules of international law. There are no explicit rules of precedent that are used by the panel, but a de facto system of precedent has emerged where arbitrators look to the decisions of previous bodies deciding on similar factual and legal issues. A common criticism of such arbitrations is that they are cloaked in secrecy due to the confidential nature of arbitration as a dispute mechanism.  Until recently, it was difficult, if not impossible, to obtain the award of an arbitral panel in a given case. However, later agreements have provided more transparency in the process of investor-state dispute resolution.  Critics have also argued that such arbitrations are not bound by rules of judicial fairness and have no mandate to follow prevailing international human rights and environmental norms. Critics of investor-state arbitration have also decried the decisions of panels that have allowed states to face liability when investors have attacked environmental and health laws of the host state.

Karamanian believes that international human rights law can re-shape the process and address many of the concerns about investor state arbitration voiced by critics.  She enumerated several reasons why this is true.

First, transparency issues have begun to be addressed. The secrecy surrounding earlier investor-state arbitration have given way to more open procedures. For example, the 2004 U.S. Model BIT allows for amicus curiae briefs and all documents relating to a particular investor-state dispute must be publicly available. Similarly, ICSID requires that all requests for arbitration must be made public. A majority of ICSID awards are disseminated publicly, and for those that are not, excerpts are provided.

Human rights principles may also be applicable to the dispute and can be raised by the parties in several ways. Based on the law and the arbitration rules in a particular dispute, international law may be controlling. In NAFTA Chapter 11 arbitration, the principles of the NAFTA agreement and international law explicitly apply to a particular dispute in that venue. Similarly, in ICSID arbitration, absent governing laws, international law applies as well, thus providing avenues for raising international human rights issues. Also, when national law applies, a monist state may raise international law as integral part of its domestic law.

Other international law principles also direct arbitrators to recognize human rights protections. For example jus cogens  (non-derogable norms of international law) are given precedence over the obligations present in an international investment agreement. This rule is derived from article 53 of the Vienna Convention on the Law of Treaties. Provisions of the United Nations Charter may also apply such as Article 103, which provides that in the event of a conflict between a state’s obligation under the Charter and that of a treaty, the conflict should be resolved in the favor of Charter obligations, which include the advancement of human rights principles by member states.

The Vienna Convention on the Law of Treaties can also be applied as an interpretative tool by arbitrators to divine the meaning of provisions in a given investment agreement. Article 31(1) of the Convention requires an arbitral body to interpret “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”  It is from this interpretive provision that the text of a given investment treaty can be read to infer international human rights protections despite not being explicitly mentioned within the document.

Finally, the investment treaties themselves have also begun to protect the prerogatives of states to regulate health, safety, and environmental concerns and limit their liability under a investment agreement. The 2012 U.S. Model BIT, for example, excludes “ non-discriminatory regulations that are tailored to protect public health, safety, and the environment.” Other provisions in concluded BITs also protect a state so that it may fulfill its duties to maintain or restore international peace and security.

While recent decisions of investor-state arbitral tribunals  have recognized a state’s legitimate right to protect the health and welfare of its citizens without liability to a foreign investor, much work needs to be done. Ultimately, this process of integrating human rights norms into investor-state arbitration will require arbitrators who are knowledgeable of the relevant law and willing to apply the norms of  international human rights and other international standards to the disputes before them. Law librarians will play a vital role in this process by making these materials readily accessible and by sharing their reference expertise with lawyers in the field.

 

Recap: FCIL-SIS Book Group

By Jennifer Allison

ewstSpearheaded by Dan Wade of the Yale Law School Library, the FCIL-SIS Book Group met again this year at the AALL annual meeting. Of the two finalists, the book chosen by the participants was East West Street: On the Origins of “Genocide” and “Crimes Against Humanity”, by Philippe Sands (published in 2016 by Knopf, ISBN 978-0385350716).

The participants in the book group included:

  • Dan Wade, Yale
  • John Wilson, UCLA
  • Lyonette Louis-Jacques, University of Chicago
  • Loren Turner, University of Minnesota
  • Jennifer Allison, Harvard
  • Daniel Donahue, University of Houston
  • Marilyn Raisch, Georgetown
  • Evelyn Ma, Yale

After a bit of a location mix-up, the group settled on meeting at the conference hotel’s American Craft  Kitchen & Bar.  Over delicious food and drinks, the conversation about this interesting and unexpected book flowed.

Most of the group’s participants gave the book a thumbs-up, although there were definitely mixed reviews regarding the book’s somewhat unusual format.  Although it was a non-fiction account of the development of the crime of genocide, Sands wove this information into the stories of four people from an Eastern European city, that, throughout its history, has had a number of names, including Lemberg, Lwów, Lvov, and as it is known today, Lviv.

One of the four people whose story was told was Sands’ maternal grandfather, a Jew who left his hometown for Vienna in the early 20th century, and then fled Vienna for Paris in the late 1930s.  The book featured extensive descriptions of the grandfather’s early life, the fate of his family in what was, during the war, the Polish city of Lwów, and his later years in Paris, where the author spent time with him.

Sands also told the stories of two men who had studied at the law faculty of the University of Lwów:

  • Raphael Lemkin taught at Duke Law School and worked with the American lawyers who were involved in the Nuremberg trials. In his book Axis Rule in Occupied Europe, he offered the first definition of the word “genocide.”
  • Hersch Lauterpacht was an international lawyer who taught at the London School of Economics and Cambridge University. He worked with the Nuremberg Trials’ team of British lawyers.

The book’s fourth biographical figure was the German lawyer Hans Frank, who served the Nazi regime as both a lawyer and the Governor General of occupied Poland.  He was a defendant in the Nuremberg Trials, where he was convicted of the murder of Polish Jews.  He was sentenced to death and executed.

Although biographical information of these four figures was woven throughout the book, the main focus of its second half was the Nuremberg Trials, from the preparation (in which the allies’ legal teams debated whether to use the newly-introduced crime of “genocide” in their prosecution of the Nazi defendants), through the trial proceedings and the outcome.

Some of the members of the book group were not enamored of the book’s extensive use of biographical narrative, and would have preferred that the book focus merely on the earliest development of genocide of a legal norm that could be used by lawyers to prosecute war criminals.  In fact, a few people said that, if they were to read the book again, they would skip its first half entirely.  However, other members of the group felt that the inclusion of the biographical stories made the work more accessible to non-scholars; specifically, “it made it a serious book about genocide that I could recommend to my mom, or sister, one that they would actually read.”

There were other concerns about the book among the group.  As Dan Wade pointed out, “This book likely would not have passed a law school preemption check.”  Perhaps he is correct.  Ana Filipa Vrdoljak, a law professor at the University of Western Australia Faculty of Law, published an article that covered a remarkably similar topic in 2009: Human Rights and Genocide: The Word of Lauterpacht and Lemkin in Modern International Law (20 Eur. J. Int’l L. 1163 (2009)). The article tracked the life paths of these two figures, from their education at the University of Lwów Faculty of Law, through their lives and careers in the United States and England, to their participation in the Nuremberg Trials, in similar detail to Sands’ book.  Of course, Vrdoljak’s article discussed neither Sands’ grandfather nor Hans Frank in any detail, and the presence of the content of those two individuals added a level of narrative complexity and interest to the book that is not present in the article.  Still, Dan’s was a valid point.

Overall, it was a very successful and enjoyable book group meeting.  Hopefully this is a tradition that has been firmly established and will continue at AALL meetings into the future.

It’s Time For Chicago!

Registration is now open for the 2016 AALL Annual Meeting and Conference in Chicago!  In addition to member-discounted pricing, deeply discounted registration rates are available for students and retirees. Nonmember conference registration packages also include a complimentary one-year AALL membership – by joining us in Chicago, you’ll be joining AALL as well!

The FCIL-SIS looks forward to welcoming all attendees to its 2016 Schaffer Grant for Foreign Law Librarians presentation, which will take place on Monday, July 18, from 4:30 p.m. until 5:30 p.m., in Hyatt-Columbus GH. This year’s recipient, Ms. Rheny Pulungan, is Liaison Support Librarian at the University of Melbourne’s Law School Library. As Liaison Support Librarian, she supplies reference services, teaches legal research workshops, and completes collection development projects. Ms. Pulungan holds a Ph.D and Masters degree in International Law from the University of Melbourne, and a Master of Information Studies in Librarianship from the University of Canberra. Previously, Ms. Pulungan received her Bachelor of Laws from Gadjah Mada University in Indonesia, and served as Law Faculty Lecturer at Bengkulu University, where she specialized in international law. Ms. Pulungan’s experience in both Indonesian and Australian law, as well as law librarianship, will be reflected in her presentation, which will treat comparatively access to legal information in both countries.

In addition to the Schaffer Grant presentation on July 18, the AALL Conference will feature the following FCIL-related programming:

Sunday, July 17th

4:00 p.m. – Asian Legal Information in English: Availability, Accessibility, and Quality Control

Tuesday, July 19

8:30 a.m. – Roman Law, Roman Order, and Restatements

11:00 a.m. – Vanishing Online? Legal and Policy Implications for Libraries of the EU’s “Right to be Forgotten”

The FCIL-SIS is also working with the American Society of International Law to co-sponsor a pre-conference workshop to be held on Saturday, July 16 at 9:30 a.m. ($50 additional registration fee applies.)  The workshop, which is entitled Two Sides to the United Nations: Working with Public and Private International Law at the UN, is designed to equip all law librarians with foundational knowledge of the United Nations and CISG (both of which have recent significant changes to their online databases), and to increase their fluency with the major U.N. and CISG documents, information, research resources, and strategies.

If you are presenting on an FCIL-related topic in Chicago and would like your program to be featured on DipLawMatic Dialogues, or if you are interested in blogging about the conference programs listed above, please contact blog administrators Susan Gualtier (susan.gualtier@law.lsu.edu) or Loren Turner (lturner@law.ufl.edu). We look forward to seeing you in Chicago this summer!

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AALS Field Trip to the United Nations: a report

By Anne E. Burnett

The International Law Section of the Association of American Law Schools offered the first-ever AALS Field Trip to the United Nations during last week’s AALS meeting in Manhattan. Claudio Grossman (Chair, United Nations Committee against Torture and Dean of the American University Washington College of Law) and Mark Wojcik (Professor, John Marshall Law School—Chicago) organized the January 7th event, which included a briefing, lunch, a tour of the UN buildings, and time to visit the U.N. bookstore and gift shop.

About 35 international law professors, visiting scholars and librarians started the day with a trek from the conference headquarters near Times Square to the UN building on a cold but sunny morning.  After clearing security, we assembled in a meeting room (where I ogled the committee meeting agenda left on the door – hey, I’ve helped our researchers locate those agendas!) for a briefing by an excellent panel discussing the general topic of “The Future of the United Nations in the 21st“ with a more specific focus on human rights issues.

The briefing, ably moderated by Mark Wojcik, included the following panelists and topics:

  • Claudio Grossman, Chair, United Nations Committee against Torture and Dean of the American University Washington College of Law
    Topic: “The Human Rights Treaty Bodies of the United Nations – Challenges for the Future”
  • Ben Majekodunmi, Senior Human Rights Officer, Political, Peace-keeping, Humanitarian and Human Rights Unit, Executive Office of the UN Secretary-General
    Topic: I do not have the specific title for this portion as he was not on the agenda but his very interesting comments were mostly about obstacles to the UN responding to serious human rights violations
  • Katarina Mansson, Capacity Building & Harmonization Section, Human Rights Treaties Division, United Nations Office of the High Commissioner for Human Rights (OHCHR)
    Topic: “Partnering for Peace and Rights: The Evolving Relationship Between the United Nations and Regional Organizations”
  • Craig Mokhiber, Chief of the Development and Economic and Social Issues Branch, United Nations Office of the High Commissioner for Human Rights (OHCHR)
    Topic: “Development and the Post-2015 Development Agenda”
  • Richard Bennet, Representative and Head of UN Office, Amnesty International.
    Topic: “Amnesty International’s Efforts”
  • Joanna Weschler, Deputy Executive Director & Director of Research, Security Council Report
    Topic: “The Security Council Report” – see http://www.securitycouncilreport.org/  to access this resource which provides information about the activities of the Security Council and its subsidiaries.

During the luncheon, we enjoyed an interesting keynote by His Excellency Cristian Barros, Ambassador and Permanent Representative of Chile to the United Nations, speaking on “Chile’s Participation at Security Council (2014-2015).” He discussed the practicalities of working on the Security Council as the representative of a non-permanent member.

The afternoon tour included visiting the General Assembly Hall, the Security Council Chamber, the Trusteeship Council Chamber, and the Economic and Social Council (ECOSOC) Chamber.  Each grand room has been donated by a member country, along with symbolic furnishings and art. We also toured exhibits on human rights, disarmament, and the Post-2015 Development Agenda. Varied massive pieces of art donated by member countries provided sobering yet optimistic backdrops throughout the tour. (Note: our tour did not include either the Secretariat Building or the Dag Hammarskjöld Library  – something to explore next time.)

The tour ended with stops at the United Nations Bookshop and the gift store.

Woven throughout the field trip, from the briefing to the luncheon to the exhibits and the bookshop, were references to the Post-2015 Development Agenda, which provides a plan of action for the United Nations through 2030. The international library community advocated strongly, and successfully, for the inclusion within the development agenda of access to information, which is referenced under several of the 17 Development Goals. If you’d like to know how this could impact your work, check out the efforts of groups such as the International Federation of Library Associations and Institutions (IFLA), which continue to provide support for advocacy efforts to include access to information in national development plans.