Britain

The course of the U.S. Supreme Court oral argument in an international arbitration case is evident in Justice Anthony M. Kennedy’s comment toward the end of Monday’s hearing:

‘Your – your whole argument gives me intellectual whiplash.’

I put that comment into context in my SCOTUSblog post today, which also describes other exchanges between various Justices and the 3 lawyers who argued the matter – for the Republic of Argentina, for a British private investor, and for amicus the United States of America.

The case that’s nowdoll under submission, BG Group PLC v. Republic of Argentina, arises out of a dispute covered by the 1990 bilateral investment treaty between Britain and Argentina. Today’s post on “the matryoshka-doll complexities” of the case builds on my November SCOTUSblog argument preview, on which I posted here. (photo credit)

Animated-Flag-BelgiumThe global push to make the aggressive use of armed force a crime punishable by the International Criminal Court picked up another supporter this week.

Belgium deposited its ratification of the Kampala amendments to the ICC Statute on Tuesday, thus becoming the 12th ICC state party to support the amendments, which, as previously posted here, here, and here, define the crime and set out the paths by which persons suspected of responsibility for aggression may be called to account before the ICC.

Pursuant to the compromise reached at the 2010 ICC Review Conference in Kampala, Uganda, the amendments may not take effect before 2017, and then only after a further vote and the ratification by at least 30 states. Belgium’s joinder this week means the ratifications halfway point is near. Indeed, a tally of pledges made by other states both before and during this month’s annual meeting of the ICC Assembly of States Parties reveals that it is quite likely that the 30-ratification threshold will be reached well before 2017. (See my October post and the recent statements in the Crime of Aggression Twitter feed.)

usflagBut that was not the only crime-of-aggression news this month. Also at the Assembly meeting, just five days before Belgium deposited its joinder, the most vocal of ICC nonparty states weighed in: the United States’ top international criminal justice diplomat urged states not to make the crime of aggression punishable. That diplomat – Ambassador Stephen J. Rapp, head of the State Department’s Office of Global Criminal Justice – concluded his November 21 address to the Assembly by stating:

‘Another challenge with which the international community needs to grapple involves the crime of aggression.’

He made clear that U.S. statements against the amendments, made just after the end of the Kampala conference, still held:

‘The United States continues to have many concerns about the amendments adopted in Kampala, including the risk of these amendments working at cross-purposes with efforts to prevent or punish genocide, crimes against humanity, and war crimes—which provide the very raison d’être for the Court.’

And he urged a rethinking of the endeavor:

‘The States Parties were wise to create breathing space by subjecting the Court’s jurisdiction to a decision to be taken after January 1, 2017. The international community should use that breathing space to ensure that efforts to ensure accountability for genocide, crimes against humanity, and war crimes can be consolidated and that measures regarding the amendments requiring attention can be properly considered; …’

With that, Rapp concluded:

‘… and it is our view that States should not move forward with ratifications pending the resolution of such issues.’

His exhortation appears not to have moved some states, including some of the United States’ NATO partners – among them, Belgium, Estonia, Germany, Luxembourg, and Slovenia, which already have ratified, as well as Croatia, the Czech Republic, Romania, Slovakia, and Spain, which reportedly are working toward ratification.

Rather quiet in this debate are 2 states parties that belong to NATO and also hold permanent seats at the U.N. Security Council. How Britain and France proceed remains to be seen.

maamThe wee hours in Geneva today brought news of an agreement to regulate Iranian nuclear development, blocking nuclear weaponry and easing global sanctions. The agreement’s a victory for what, back in 2007, I dubbed the talking cure – a welcome turn of events after decades in which tensions escalated even as telephone lines remained silent. (It is just 8 weeks since the leaders of Iran and the United States talked for the 1st time in 34 years; just 5 days since the leaders of Iran and Britain talked for the 1st time in a decade.) The European Union-Iran statement on the agreement is here, text of Joint Plan of Action here, and a White House fact sheet is here.

The guy getting credit for all this is a woman. She’s Catherine Ashton, the coal miner’s daughter and onetime activist in the Campaign for Nuclear Disarmament who’s served since 2009 as the European Union’s 1st-ever High Representative of the Union for Foreign Affairs and Security Policy. Ashton’s early days in that post were rocky, but she persevered. She’s been in the trenches negotiating with Iran for years. The Guardian‘s Julian Borger reports that during this week’s diplomatic marathon at Geneva, while other delegates nicked out for pilaf or pizza, “Lady Ashton, the EU foreign policy chief steering the talks, often just made do with bar snacks.” And so today the media are painting Ashton as a hero – “from ‘zero’ to hero,” as the Telegraph of London rather snarkily put it.

Pivotal is the quality that an unnamed Brussels diplomat assigned to Ashton: “emotional intelligence.” There will be need for much of that as leaders work to win approval of the deal in their own states.  Most notably the United States, where some same-day reactions indicate more fondness for the hostile old status quo than for a chance to edge toward a calmer international future.

(credit for above photo of today’s Geneva announcement, depicting a chestnut-suited Ashton flanked by, from left, British Foreign Secretary William Hague, German Foreign Minister Guido Westerwelle, Iranian Foreign Minister Mohammad Javad Zarif, Chinese Foreign Minister Wang Yi, U.S. Secretary of State John Kerry, Russian Foreign Minister Sergey Lavrov, and French Foreign Minister Laurent Fabius)

scotusblog-banner-925-1143Just published at SCOTUSblog: my preview of a case asking whether arbitrators or U.S. courts enjoy the last word on jurisdiction to arbitrate. The post discusses decisions below and briefs filed in BG Group PLC v. Republic of Argentina, a dispute arising out of the Britain-Argentina bilateral investment treaty, about which Justices are scheduled to hear oral argument on December 2.

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi)

Did regime-change overreach in Libya seal the awful fate that civilians have endured these last years in Syria? A new article in a Beijing-based law journal, China Legal Science, strongly argues “Yes.”

liAmong the 5 permanent members of the U.N. Security Council are 3 from the West – Britain, France, and the United States – plus China and Russia. The latter 2 countries have incurred much criticism for blocking Council action on Syria. ‘Way back in October 2011, for example, the United States’ Permanent Representative to the United Nations, Susan E. Rice, “storm[ed] out” after the latter 2 P-5 countries refused to join what she called “a watered-down resolution” against Syria. Criticism has tended to center around Russia’s commercial and geopolitical relationships with Syria. But the new article, “Responsibility to Protect: A Challenge to Chinese Traditional Diplomacy” (no. 1-2013, pp. 97-120), indicates that other concerns also have been at play. Asserts Dr. Zhu Wenqi, Professor of International Law at Renmin University (formerly a diplomat in China’s Ministry of Foreign Affairs and an attorney in the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, and holder of a doctorate from the University of Paris II):

‘The Council’s failure to take action in the Syrian case is because of reflections by China and Russia upon what happened after the resolutions adopted by the Security Council in the case of Libya.’

Zhu cites Resolution 1970 (Feb. 26, 2011), which imposed certain sanctions against Libya and referred the situation to the International Criminal Court, and Resolution 1973 (Mar. 17, 2011), which authorized member states “to take all necessary measures … to protect civilians.” China voted in favor of 1970 and abstained from voting on 1973. In positing “the Libyan authorities’ responsibility to protect” its people, each resolution invoked the responsibility to protect doctrine. With admirable clarity and conciseness, Zhu recounts the 15-year history of that doctrine, by which:

► 1st, each state has a duty to protect its own population; and

► 2d, should a state fail in its duty, the international community has the responsibility to step in and protect the threatened population.

What happened right after adoption of Resolution 1973? NATO mounted a many-month military operation, which ended only after Libya’s longtime ruler, Muammar Gaddafi, was deposed, put on the run, and ultimately killed. The Security Council had not made regime change an explicit aim in either Resolution 1970 or Resolution 1973; a month into the intervention, however, an op-ed by the leaders of the Western P-5 members insisted that Gaddafi “must go, and go for good.” Zhu writes that this ouster effort led China to criticize the resolutions as “pretextual” and as costly in the numbers of civilians harmed.

The Libya lesson has prompted China to resist calls for intervention in Syria, Zhu states. (credit for AP photo above, captioned “Chinese Ambassador to the UN Li Baodong sitting with his hands down as Security Council members vote on resolution to back an Arab League call for Syria’s Assad to step down, Feb. 4, 2012”) What’s more, it has led China to revert to skepticism toward the doctrine of responsibility to protect. In an account that echoes writings of Judge Xue Hanqin on which I recently posted, Zhu sets out not only the value that China places on the sovereignty guarantees in Article 2(4), (7) of the U.N. Charter, but also the relation of that value to the desire to maintain independence from “‘the remnants of imperialist and colonialist oppression'” (quoting the late Wang Tieya). Quoting from this article, Zhu writes that China’s opposition to regime change in Syria is seen as reinforcing the Charter:

‘In the eyes of many Chinese evaluators, China’s attitude toward the Syrian issue actually demonstrated that China “is assuming more responsibilities and obligations” in international affairs.’

Amid this week’s reports that the United States may be backing off from demands for the resignation of Syria’s President, Bashar al-Assad, the article is timely – and its explication of the Chinese legal perspective on global security has value any time.

Notable in the just-released White House recap of its efforts to prevent mass atrocities is the foregrounding of 2 actions this year:

► Enactment in January of “bipartisan legislation to enhance our ability to offer financial rewards” – up to $5 million – “for information that helps to bring to justice” selected international indictees, among them “Joseph Kony and other senior leaders of the Lord’s Resistance Army, as well as Sylvestre Mudacumura from the Democratic Forces for the Liberation of Rwanda….”

► Developments in March, when “[t]he United States facilitated the voluntary surrender of Bosco Ntaganda” to stand trial “for war crimes and crimes against humanity….”

g8What’s notable is that both actions – like others noted in this commentary by Professor David Kaye – come to the aid of the indicting organization, the Hague-based International Criminal Court.  The same is true of an action not mentioned in the recap; that is, the Declaration on Preventing Sexual Violence in Conflict adopted at a mid-April London meeting. Paragraph 5 of the Declaration concludes:

‘Ministers emphasised the need for further funding support for victims and called on the international community, including the G8, to increase their efforts to mobilise such funding, including to programmes such as the ICC Trust Fund for Victims and its implementing partners.’

“Ministers” refers to the Foreign Ministers of the European Union and all members of the G-8. Thus joining the Declaration were 2 countries not party to the ICC’s Rome Statute: Russia and the United States. (credit for AFP photo made at the G-8 meeting of Foreign Ministers – from left, minsCatherine Ashton, European Union; John Baird, Canada; Laurent Fabius, France; John Kerry, United States; William Hague, Britain; Sergey Lavrov, Russia; Guido Westerwelle, Germany; Fumio Kishida, Japan; and Mario Monti, Italy)

These actions prompt examination of the potential extent of U.S. support for the ICC – in particular, given the G-8 Declaration, U.S. support for the Trust Fund for Victims. Would U.S. financial contributions to the Trust Fund for Victims contravene the American Service Members Protection Act? A preliminary look at the question indicates that they would not.

Section 2004 of the Act prohibits the giving of various forms of “cooperation,” “support,” and “appropriated funds” to the “International Criminal Court.” Section 2013(6) has the following definition:

‘INTERNATIONAL CRIMINAL COURT – The term “International Criminal Court” means the court established by the Rome Statute.’

The definition gives rise to a question: Does the Trust Fund fall within that statutory term “the court”?

Despite some writings on the workings of the Trust Fund (e.g., here), there appears to be little in-depth scholarship on the organizational relationship between it and the Court. An expert on international organizations ought to take this on.

Still, ICC documents seem to set the Fund apart from the Court; that is, the Trust Fund is established to benefit victims of crimes in the Court’s jurisdiction, but is not expressly itself within the Court’s jurisdiction. It is governed by the Assembly of States Parties, as is the Court, but there is an argument that it is not part of the Court. Indeed, a 2007 amendment permits earmarking of voluntary contributions to the Trust Fund in a way that sets such donations outside the frame of the Court. Both are within the “Rome Statute system,” as ICC Prosecutor Fatou Bensouda and others term it, but they arguably are separate entities within that system.

Note too that the founding resolution does not seem to limit membership on the Trust Fund board of directors to nationals of states parties. Assuming later-promulgated regulations do not change this, that would make this board different from other elected positions, like ICC judge and ICC prosecutor, and again suggests a different status.

Now consider Section 2004(f) of the American Service Members Protection Act:

‘PROHIBITION ON USE OF APPROPRIATED FUNDS TO ASSIST THE INTERNATIONAL CRIMINAL COURT – Notwithstanding any other provision of law, no funds appropriated under any provision of law may be used for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or permanent resident alien by the International Criminal Court.’

The phrasing begs the question whether there is a ban on U.S. funding in any instance in which the suspect or accused is not a “United States citizen or permanent resident alien.” It seems even more clear that funding reparations – aiding victims, without regard to perpetrators – is something wholly outside the scope of “investigation, arrest, detention, extradition, or prosecution.” By this reasoning, U.S. financial contributions to the Trust Fund for Victims, which has no role at all in “investigation, arrest, detention, extradition, or prosecution,” are not prohibited by the American Service Members Protection Act. (See further limits on the Act’s scope – including reference to unofficial reports of a confidential Office of Legal Counsel memo on the issue – at pages 6-11 and 17 of a 2010 American Society of International Law compilation of white papers, Beyond Kampala: Next Steps for U.S. Principled Engagement with the International Criminal Court.)

The above interpretation of the Act’s funding rules cannot be extended to subsequent legislation, by which Congress imposed a blanket ban on using appropriated funds “for use by, or for support of, the International Criminal Court,” unless and until the now-unlikely event that the United States ratifies the Rome treaty following 2/3 approval by the Senate. The latter amendment, however, defines “International Criminal Court” in much the same way as the above-quoted Section 2013(6) of the American Service Members Protection Act; thus the question lingers whether the Trust Fund falls within the scope even of the latter amendment’s ban.

dosA final point respecting the American Service Members Protection Act: U.S. contributions to the Trust Fund would not contradict the intent of Congress, as it may be inferred from the Section 2002 Findings with which the Act begins. Donating to the Trust Fund for Victims in no way would enable the Court to pursue U.S. nationals or other “covered” individuals. It would have no relation to the ICC offense that appeared to give Congress most concern, the not-yet-fully-punishable crime of aggression. And with regard to Finding #4, which quotes the 1998 statement in which then-Ambassador David Scheffer opposed the Rome Statute on the ground that “‘[w]e are left with consequences that do not serve the cause of international justice,'” one discerns a congressional willingness to support institutions (such as ad hoc tribunals, which are exempted from the Act) that in fact serve that cause. U.S. contributions to reparations, via the Trust Fund for Victims, would meet that criterion.

Consideration of such contributions would further the United States’ current policy of positive engagement with the Rome system of international criminal justice. Reconsideration of all federal statutory barriers, a move supported by a range of U.S. experts (among them, Professor Kaye and former State Department Legal Adviser John B. Bellinger III), seems yet another logical next step.

‘Mais elle est l’inverse d’une féministe. Elle n’aime guère les femmes en général, ne flatte pas les électrices et ne travaille qu’avec des hommes, ou presque. En onze ans de règne, le plus long de l’après-guerre, elle ne promeut qu’une seule femme au sein du cabinet. Sa politique sociale n’exprime aucune compassion pour les mères au travail. Tout se passe comme si elle n’avait, égoïstement, revendiqué l’égalité des sexes que pour elle-même.’

mtthat is,

‘But she was the inverse of a feminist. As a general matter, she didn’t prefer women, didn’t cater to women voters, and worked with men only, or almost so. Throughout her 11-year tenure, the longest since World War II, she appointed only 1 woman to her Cabinet. Her social policies expressed no compassion for working mothers. Everything happened as if, egotistically, she had claimed equality of the sexes for herself alone.’

– Jean-Pierre Langellier, in a Le Monde article recalling Margaret Thatcher, the “divisive” British politician who died yesterday at age 87. His essay not only recalled the overt sexism that was directed at Thatcher even by other world leaders, but also stressed that she did not turn to sisterhood as a means to confront that hostility. (credit for (c) 1975 Reuters/Stringer photo)

US-Flag-and-Rainbow-Flag-e1330027721669-275x300Yesterday the Obama Administration urged the U.S. Supreme Court to invalidate § 3 of the 1996 Defense of Marriage Act, which defines “marriage” as the union of a man and a woman, and thus precludes extension of many benefits to spouses in same-sex marriages. The Brief for the United States on the Merits Question in United States v. Windsor argued that:

  1. The Court must examine the legality of discrimination based on sexual orientation at a heightened level; and
  2. Such heightened scrutiny exposes the statute as a violation of the equal protection obligations that the 5th Amendment places on the United States. (I examined that constitutional doctrine in a 2010 article.)

Acknowledging intervenor’s “appeal to this Court to allow the democratic process to run its course,” the government’s brief in Windsor concluded:

‘That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection.’

With the filing of this brief and others, focus in the United States now shift to the Court, which will hear arguments in Windsor and another marriage-equality case, Hollingsworth v. Perry, at the end of March. (IntLawGrrls’ posts on these cases available here.) (photo credit)

In the meantime, worth noting are developments in countries the United States has long considered allies – countries with which the United States shares fundamental rights traditions:

Given recent U.S. decisions’ silence on foreign law, it will come as no surprise if these developments  prompt scant mention in the March arguments in Windsor and Perry. Nevertheless, these overseas threads will form part of the fabric of Justices’ deliberation.