treaties & custom

In its first-ever case involving investor-state arbitration, the U.S. Supreme Court yesterday ruled against the state. The state at bar was the Republic of Argentina, which had sought to defend the reversal below of a 2007 decision in which a 3-member arbitral panel awarded $185 million in damages. But in its decision in BG Group plc v. Republic of Argentina, the high court overturned the appellate decision.  A seven-member majority accepted the argument of petitioner, a British company that had suffered losses on a Buenos Aires investment as a result of emergency measures Argentina took during an early 2000s economic collapse. The private investor had sought arbitration without first fulfilling a requirement, found in Article 8(2)(a) of the 1990 Britain-Argentina BIT, the insiders’ shorthand for “bilateral investment treaty.” Arbitrators excused that nonfulfillment, and the Court majority deferred to the arbitrators. In so doing, it rejected the de novo review applied by the court below and urged by Argentina.

Iscot‘ve had the honor of following this case for SCOTUSblog, via a pre-argument preview, a post-argument recap, and, just posted, an opinion analysis. After summarizing the opinion for the Court by Justice Stephen G. Breyer, the dissent by Chief Justice John G. Roberts, Jr., and the concurrence in part by Justice Sonia Sotomayor, the analysis views the decision as advancing a clear statement rule,

‘a rule that no less than a private party, a nation-state which wants to assure that courts rather than arbitrators have the last word on whether it consented to arbitration must say so explicitly.’

As for treaties that are explicit on this account, among them a number of BITs to which the United States is a party, the analysis, available in full here, concluded:

‘Whether in some future case the Supreme Court will enforce such express provisions remains an open question.’

carter_church12jan14This time 2 weeks ago, my family, neighbors, and I were in Plains, Georgia, where former President Jimmy Carter taught us Sunday school. Age 89 and still active around the world, Carter does this every Sunday that he’s home in the southern Georgia town where he was born and has lived most of his life. According to the schedule, another group of congregants sits with him at his Maranatha Baptist Church even as I write this post.

Our mid-January visit began with a 3-1/2-hour Saturday drive across a rainy state, then a lovely overnight and elegant breakfast at a majestic, circa-1892 hotel in Americus. By 8:30 Sunday we’d driven 10 miles west, to Plains, and were waiting in line as visitor-friendly Secret Service agents checked our bags and ushered us into the simple church. There Miss Jan, a retired schoolteacher, delivered a wry primer on the history of Plains and the Carter family.

Right at 10 the Carters arrived. The former First Lady, Rosalynn (“It’s pronounced Rose-lun,” Miss Jan had told us), sat in a pew.  The man who’d served as U.S. President from 1977-1981 stood at front. He wore a striped shirt and grey jacket and sported a bolo tie with a turquoise pendant. Carter asked where everyone was from. Georgia, of course. But also Alabama, Connecticut, Illinois, Indiana, Massachusetts, Minnesota, and Washington, not to mention Canada, China, Ireland, and Palestine. At that last, Carter interjected,

‘We go there almost every year, and my heart goes out to all the Palestinian people.’

He talked at length about his 28th book, set to be released this March. The subject, he said, is

‘the horrible plight of women and girls around the world.’

As examples, he spoke of genital mutilation, enforced second-class status, lack of educational opportunities, child marriages, sex-selective abortions, female infanticide, and honor killings. Carter’s move to another topic was halted by one word from the audience: “Jimmy,” spoken with a distinct Plains accent. “Jimmy,” Rosalynn continued,

‘You left out what’s happening in our country.’

me_peanut12jan14The former President flashed the smile for which he’s famous – a smile once captured on campaign buttons, and the foremost feature of the statue at right, which stands along the road not far from the Maranatha church. Carter then elaborated on Western countries, citing the still-low percentages of women in positions of government and the prevalence of sexual assault on college campuses. He concluded his account of the global status of women with these words:

‘I think it’s the worst human rights abuse on earth right now, and I hope this book will bring attention to it.’

Carter then donned glasses and read the Bible passage for the week, an Old Testament account of the gratitude that Hannah, despite hard losses, showed to God. Carter mentioned his own loss that week, of “the best friend I had on earth, Robert Pastor.” Pastor, who died at age 66 from colon cancer, had, among other achievements, helped to secure the Senate’s 2/3 approval of the Panama Canal Treaty – “my hardest political battle,” Carter said. Just weeks earlier, the two had co-authored an op-ed suggesting how peace might be brought to Syria. Pastor, Carter told us, was

‘the wisest person on how to bring peace, on how to solve a complicated problem.’

Pastor’s legacy still in mind, Carter returned to Hannah’s story, urging us to give thanks, as Hannah did, for “another day of life,” for the “blessings of freedom,” for being “able to spread to people around us health and safety.”

The uplift and inspiration of his message lingered long after our journey home.

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.

southsudanSouth Sudan appears poised to ratify the 1989 Convention on the Rights of the Child. The South Sudan Parliament approved a ratification bill yesterday (not coincidentally, Universal Children’s Day, so named to commemorate the adoption of the Convention on November 20, 1989, as well as the approval of a precursor Declaration on November 20, 1959). The bill awaits signature by the president of the country – since 2011, the newest member of the United Nations.

Completion of that process will return matters to where they stood in 2005, when Justice Anthony M. Kennedy referred in Roper v. Simmons, a judgment outlawing the juvenile death penalty, to the

‘United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia’

Then as now, Somalia lacks a strong central government, a fact that effectively leaves the United States standing alone.

usflagWhy the opposition? Factors compiled in “Why won’t American ratify the UN convention on children’s rights?”, an Economist article published last month, include claims that ratification “would usurp American sovereignty,” “undermine parents’ authority, particularly over religious and sex education,” and “provoke lawsuits demanding that the government pay” costs to improve children’s lot. Evidence of such concerns surfaced at p. 120 of a July/August essay in Foreign Affairs, which decried a 2002 Committee on the Rights of the Child recommendation (¶ 11) that Britain work to allocate funds and resources toward adequate implementation of obligations it undertook by joining the Convention. One also discerned such concerns earlier this month, in between the lines of questions that Chief Justice John G. Roberts, Jr. (pp. 42-43) and Justice Antonin Scalia (pp. 31-32) posed during oral argument of Bond v. United States, a U.S. treaty-power case.

Undercutting those concerns is the fact that most Convention rights are already guaranteed by U.S. law (though not all, as the Economist points out) – not to mention the fact that nonratification weakens U.S. efforts to advocate globally for child rights. The fate of the newest effort to secure U.S. ratification of the disabilities treaty (prior post) may signal whether such facts have traction in contemporary U.S. politics.

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.

‘On Saturday, along the road between Goma and Kibumba, soldiers brought up two young men, both defectors from M23. One, who claimed to be 20, looked 16.
‘ “You are good boys. You have made a good decision to come,” General Bahuma told them as they stared on, sullen. “You should fight for your country.”’

gomaThus reported Nicholas Kulish toward the end of today’s front-page New York Times story, “A Reason for Hope in Congo’s Perpetual War.” The story told of apparent progress in efforts to quell years-old rebellion in the eastern portion of the Democratic Republic of the Congo – efforts including strengthened U.N. peacekeeping and increased disciplining of Congolese army troops. (map credit) The targeted rebels belong to M23, the armed group formed last year by mutineers from among the national army’s ranks.

M23 is alleged to recruit child soldiers. (Indeed, its onetime leader, Bosco Ntaganda, who surrendered to the International Criminal Court several months ago, faces trial on that very charge, relating to activities several years earlier.) The Democratic Republic of the Congo is a state party to the 2000 Optional Protocol pledging to outlaw recruitment under age 18, and has signed a U.N. action plan to end recruitment and use of children. President Barack Obama recently determined that the country was eligible for a waiver of aid restrictions applicable under the U.S. Child Soldiers Prevention Act of 2008.

With regard to the rebels, Kulish wrote, referring to an October 3 announcement by the State Department:

‘The United States cut off military aid to Rwanda this month over its alleged support for M23, which is believed to use child soldiers and depend heavily on Rwanda for supplies.’

That observation invites a rereading of the article’s 1st-quoted statement, that one of the “defectors … looked 16”: reportedly welcoming him back to combat was a general of the Congolese national army.

“Has International Law Failed the Elephant?” That was the question posed a dozen years ago in an American Journal of International Law article by Michael J. Glennon, who’s now a Professor of International Law at Tufts’ Fletcher School of Diplomacy. In prose rife with admiration for the imperiled pachyderm, Glennon compelled his readers to answer “yes” to the question he had asked. He lamented the weaknesses inherent in the structure and implementation of CITES, the 1973ellies Convention on International Trade in Endangered Species of Flora and Fauna, and urged a range of improvements aimed at reducing the illegal market for elephant-harvested ivory. Inspired, my California-Davis Law student Jonathan Kazmar followed up with his own 2000 article, “The International Illegal Plant and Wildlife Trade: Biological Genocide?,” calling for the addition of criminal prohibitions to the limits contained in the original CITES.

These prescriptions have not taken hold. Trafficking in ivory increases and the number of elephants decreases. What is more, violence that long has ravaged civilians in the region encompassing Uganda, the Central African Republic, South Sudan, and the Democratic Republic of the Congo now claims elephants as victims. (credit for photo by Nuria Ortega/African Parks) According to a June 2013 report by the Enough Project:

‘The Lord’s Resistance Army, or LRA, is now using elephant poaching as a means to sustain itself. LRA leader Joseph Kony – wanted by the International Criminal Court for war crimes and crimes against humanity – has ordered his fighters to bring him elephant tusks. Eyewitnesses report that the LRA trades tusks for much-needed resources such as food, weapons and ammunition, and other supplies.’

Those allegations found voice Thursday. U.N. Security Council Resolution 2121 on the Central African Republic was passed

[c]ondemning the devastation of natural heritage and noting that poaching and trafficking of wildlife are among the factors that fuel the crisis …’

Which begs questions: Will international law again fail the elephant? Can stepped-up attention change the tide absent new international enforcement tools?  Assuming the requisite proof, could Kony be held criminally liable for a war crime of endangered species trafficking, framed within the terms of Article 8 of the ICC Statute as, perhaps, an act of pillage, destruction of property, or an unwarranted attack on a civilian objective? For answers to these questions, further study is in order.

apsWhatever happened to AP II?

As international humanitarian lawyers well know, “AP II” refers to Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, a treaty that clarifies legal rules in conflicts that present something other than the classic country v. country scenario. Put another way, AP II is the treaty that details the laws of today’s wars. It enjoys 167 parties. The United States is one of 3 countries (the others are Iran and Pakistan) that signed on December 12, 1977, but never ratified.

On that last point, a passage on page 365 of Jess Bravin’s Terror Courts (2013) piques interest. Bravin reports that in mid-2009 Secretary of State Hillary Clinton and her Legal Adviser, Harold Hongju Koh, lost their bid to stop the Guantánamo military commissions:

‘The State Department would have to make do with a couple of consolation prizes; to mollify Koh, the administration agreed to ask the Senate to ratify agreements expanding protections under the Geneva Conventions, including one that had been collecting dust since President Reagan signed it in 1987. “Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict,” a White House fact sheet said.’

The treaty mentioned is AP II: according to State’s current list of treaties pending in the Senate, Reagan submitted it to that upper house of Congress on January 29, 1987. Yet today, more than a quarter-century later, and four years after the promised “consolation,” AP II remains in the Senate’s dustbin. AP II is No. 10 on a list of 37 treaties, a list that includes some treaties about which I posted here. The most recent was submitted earlier this year, the oldest, ‘way back in 1949.

AP II’s sibling, Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, is not pending at all. (It has 173 states parties, and the same 3 state signatories.) (image credit) Villanova Law Professor John F. Murphy’s chapter in a 2012 book indicates that the March 2011 fact sheet said only that the White House intended to apply the first protocol’s fair-trial provisions (provisions that a plurality of the Supreme Court deemed “indisputably part of the customary international law” in Part IV-D-iv of Hamdan v. Rumsfeld (2006)) – not that the White House wished to submit that treaty as a whole.

us-and-un-flagsA look at participation in the 3 dozen most-ratified U.N. treaties shows the United States to be on the inside nearly twice as much as it’s out. But oh, those on-the-outs treaties.

During this week’s General Assembly sessions, the United Nations set aside 3 days for a “Treaty Event,” in effect an open house where countries are encouraged to sign, ratify, accede, and otherwise show their support for any and all of the many multilateral conventions for which the United Nations serves as depository. Compilation of Tuesday’s joinder activities here; Wednesday’s activities here; Thursday’s here. The next such Treaty Event is set for September 30 and October 1, the last couple days of the Assembly’s general debate.

Countries were nudged toward the 36 treaties closest to universal – that is, 100% – participation. (Treaties deposited elsewhere, such as the four Geneva Conventions of 1949 and their protocols, weren’t part of the event.) Oldest on the United Nations’ list – set forth in full at the bottom of this post – is the Convention on the 1946 Privileges and Immunities of the United Nations, which enjoyed 159 parties as of the June 2013 list-compilation date; youngest is the 2003 U.N. Convention against Corruption, with 167 parties. Tied for the top spot, with 195 parties, were the 1992  U.N. Framework Convention on Climate Change and the 1994 U.N. Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa.

Notably, the United States is a full member of all the U.N. treaties just named. Indeed, it belongs to 23 of the 36 treaties on the U.N. list, including nearly all that are intended to step up the enforcement of criminal law. That said, many of the 13 treaties from which it’s steered clear – highlighted in yellow below – are aimed at significant issues, ranging from protection of human rights to protection of health and the environment to protection of global security. They include 2 treaties for which the United States is a nonparty along with only 1 or 2 other U.N. member states; to be precise, the 1989 Convention on the Rights of the Child and the 1992 Convention on Biological Diversity. Here’s the “outlier” list in full:

Neither signed nor ratified by the United States

U.N. Convention on the Law of the Sea (December 10, 1982)
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (September 18, 1997)
Cartagena Protocol on Biosafety to the Convention on Biological Diversity (January 29, 2000)

Signed but not ratified by the United States

Convention on the Rights of the Child (November 29, 1989)
Convention on Biological Diversity (June 5, 1992)
Convention on the Elimination of All Forms of Discrimination Against Women (December 18, 1979)
Comprehensive Nuclear Test-Ban Treaty (September 10, 1996)
Kyoto Protocol to the United Nations Framework Convention on Climate Change (December 11, 1997)
World Health Organization Framework Convention on Tobacco Control (May 21, 2003)
International Covenant on Economic, Social and Cultural Rights (December 16, 1966)
Stockholm Convention on Persistent Organic Pollutants (May 22, 2001)
Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal (March 22, 1989)
Single Convention on Narcotic Drugs, 1961, as amended (August 8, 1976)

A treaty worth noting that fell just below the most-ratified cut: the 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which has 152 parties, one of which is the United States.

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