The Trump administration, asylum law, and private-actor persecution

Written by Rachael Stryer*

Over the past three and a half years, the Trump administration has sought to radically restrict access to asylum in the United States through administrative decision-making and rulemaking. Two recent circuit court decisions grapple with the administration’s attempts to limit the eligibility of asylum applicants fleeing persecution from non-state actors — while the Second Circuit upheld the U.S. Attorney General’s newly-stringent requirements, the D.C. Circuit found them arbitrary and capricious. The new system would, in practice, bar a woman seeking protection from domestic violence or murder witnesses fleeing gang retribution from gaining asylum, even where their states of origin struggled to stem or were blind to this violence. These changes affect the core tenants of asylum law and contradict tentative global trends towards the recognition of private-actor persecution.

The Global Asylum System

The contemporary global asylum regime was established by the 1951 Refugee Convention[1] and the subsequent 1967 Refugee Protocol.[2] The Convention sets out the rights of refugees and defines the responsibility of signatory states towards refugees. Article 1 defines refugees as individuals who have a “well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion” and who are “unable or, owing to such fear, [] unwilling to avail [them]self of the protection of” their country of nationality. The Convention’s focus on government responsibility reflects a Euro- and state-centered worldview, responding to episodes of state renunciation of segments of its population, notable the Armenian Genocide and the Holocaust. With the emergence of the Cold War, the refugee system effectively adjusted to an individualized model of state persecution. However, the Convention excluded non-Europeans from refugee status until 1967, ignoring parallel mass refugee situations created by, for example, the Chinese Communist Revolution, the Korean War, the Arab-Israeli War, and the partition of India and Pakistan.[3] Further, the asylum regime failed to address the status of victims felling private persecution. Rather, the Convention required applicants to prove that, where the state was not the persecutor, the state was unable or unwilling to provide protection.

Signatories have interpreted this state-centered requirement differently, creating two diverging systems. In the majority of Convention and Protocol signatories, including the United Kingdom, most of Western Europe, Canada, New Zealand, Australia, and the United States,[4] judicial inquiry has focused on whether the home state could and would protect the asylum seeker. Applicants were eligible for asylum relief where a state was averse to providing real protection to the individual or where the state was incapable of doing so. In contrast, civil law states, in particular Germany, Switzerland, Italy, and France, retained a state-centered concept of persecution which focused on state responsibility for the persecution in question. Under the protection regime, asylum applicants needed to prove a failure of state protection separately from the persecution at hand; under the accountability regime applicants needed to show that the state failure was directly responsible for or that the state supported, encouraged, or tolerated the persecution by third parties.[5]

Increasing Global Recognition of Non-State Persecution

This protection-accountability dichotomy has shifted over time in reaction to changes in international dynamics and law.[6] The 1990s witnessed increasing internal conflict and state decline. As a result, “popular repression by an all-powerful state is no longer the primary context or metaphor for human rights abuses.”[7] Two new paradigms, while by no means new, have become increasingly prominent. First, in areas where states lack control, non-state actors such as FARC in Colombia and Mara Salvatrucha in El Salvador have adopted state-like functions.[8] Second, where states retain control, their unwillingness to use their authority to protect minorities and women, such as the cases of Rohingya refugees in Bangladesh or unpatrolled Palestinian refugee camps in Lebanon, have emerged as central features of asylum debates.

States’ implementation of asylum obligations have developed in response to paradigms of state incapacity and indifference. Protection-focused countries increasingly recognize gender-based claims when states are unwilling to provide protection against gender-based violence. A landmark 1999 British decision, Ex Parte Shah, recognized the petitions of two Pakistani women seeking asylum from their abusive husbands based on their particular social group “Pakistani women.” Although gang-based claims remain controversial, states have increasingly recognized these types of claims through a focus on the ineptness of states to counter the groups. For example, a 2009 Australian case granted asylum to a man claiming persecution as a bus driver targeted by MS-13 in El Salvador and a 2008 Canadian casegranted asylum to a Mexican journalist who had investigated gang violence.

Likewise, accountability-centered countries have shifted towards protection-based models. In response to a 2004 European Union directive, Germany, France, and Italy broadened their definitions of persecution to include non-state actors.[9] Since then, Germany, which has traditionally had the most stringent accountability system, has recognized criminals, mafias, religious extremists, and terrorists as non-state agents of persecution and recognized gender-based attacks such as forced marriage as forms of persecution.[10] These decisions increasingly consider the ability and willingness of the state to provide protections, recognizing state ineffectiveness and indifference beyond failed or incompetent states. For example, a 2006 Swiss decision granted asylum to a woman fleeing gender-based violence, finding Ethiopia unable to provide protection despite recent improvements in the Ethiopian legal system. Thus, while these systems continue to struggle to adapt to contemporary realities and to address historical blind spots, they have shown increasing flexibility with regards to the types of persecution they recognize.[11]

Regression in American Asylum Law

American jurisprudence historically has developed in parallel with other protection-based regimes. Immigration courts require applicants seeking asylum in the United States to show past persecution or a well-founded fear of future persecution on the basis of their membership in a protected group “inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.”[12]

This standard has allowed applicants fleeing gender- and gang-based violence to gain asylum in the United States, albeit inconsistently. In Matter of Kasinga, the United States recognized gender-based persecution in the case of a woman fleeing forced marriage and female genital mutilation in Togo, finding that Togo was unwilling to protect her. And, a number of circuit court decisions have granted asylum to those facing threats from gangs. For example, in 2011, the Third Circuit in Garcia v. Attorney General granted protection to a woman who had assisted law enforcement against violent gangs in Guatemala, finding that the government was unable to protect the applicant even if it was willing and even had attempted to do so. In contrast, where these gang-based claims have failed, they have typically done so because the court found their group membership incognizable, rather than because of the nature of the persecuting actor.

In 2018, however, the Attorney General held in Matter of A-B- that the “unable and unwilling” standard requires asylum seekers to demonstrate the government “condoned the private actions or ‘at least demonstrated a complete helplessness to protect the victims.’[13] In particular, the Attorney General rejected the use of country condition reports, requiring applicants to prove these standards based on individual circumstances rather than broader social dynamics. This new standard would be nearly impossible for applicants to meet.[14] While Matter of A-B- has received significant attention for rolling back broad recognition of the cognizability of gender-based particular social groups, its repercussions extend beyond asylees fleeing domestic violence to the viability of broad-reaching private-actor claims.

In the past year, two circuit courts have grappled with these repercussions, coming to diverging conclusions. In the Second Circuit, Scarlett v. Barr broke with circuit precedent to uphold the heightened “complete helplessness” standard, denying asylum to a Jamaican constable facing threats from a gang.[15] Upon asking for protection, the applicant’s superiors transferred him to a station four miles away from his original station, where he continued to receive threats. The police did nothing further to protect the applicant.[16] The court found that the superiors’ initial response was enough to show that the state was not tolerant of the applicant’s persecution.

The Second Circuit held that the applicant did not meet the “condoned” or “complete helplessness” standard. “Condoned” suggests active approval of persecution far beyond an unwillingness, while “completely helpless” connotes a state that is totally impotent, significantly more extreme than “unable.” Despite the clearly heightened standard, Scarlett deferred to the government’s position that the complete helplessness standard was not a change from the traditional “unable or unwilling test.”[17]

In contrast, the D.C. Circuit ruled for twelve asylum applicants fleeing gender- and gang-based violence in Grace v. Barr, finding that the AG’s “condoned-or-completely-helpless” standard broke with established Board practice.[18]  While it rejected the authority of the United Nations High Commissioner for Refugees Handbook,[19] the Circuit found this change arbitrary and capricious. The court establish that “[a] government that ‘condones’ or is ‘completely helpless’ in the face of persecution is obviously more culpable, or more incompetent, than one that is simply ‘unwilling or unable’ to protect its citizens,” drawing on a recent First Circuit decision which found the Mexican state unable to provide protection to an applicant whose son was murdered.[20] Although police had responded to the murder of the applicant’s son by visiting the scene of the murder, taking statements, and performing an autopsy, the general corruption, low trust, and high homicide rates in the region were sufficient evidence to demonstrate that the state was incapable of adequate guarantees.[21] Grace argued that, under the condoned or completely helpless standard, the claim would almost certainly fail (because the government had responded to the murder), thereby creating two differing standards.[22]

As Grace v. Barr demonstrates, replacing a “unwilling or unable to protect” model with “condoned or complete helplessness” fundamentally shifts the American asylum system. While other signatories move to recognize non-state persecution (albeit unevenly and with gaping failures of their own), the United States recedes from a protection-based model towards the increasingly antiquated accountability-based model. This decision signals a regression in American asylum protection and moves the United States out of step with both global realities and international asylum developments.

*J.D. candidate, Yale Law School; Features Editor, Yale Journal of International Law

[1] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137.

[2] UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267.

[3] Lucy Mayblin, Asylum After Empire: Colonial Legacies in the Politics of Asylum Seekers 22-23 (2017).

[4] The United States is only party to the Protocol, which it ratified in 1968. Congress incorporated the definition into immigration law through the Refugee Act of 1980.

[5] Catherine Phuong, Persecution by Third Parties and European Harmonization of Asylum Policies, 16 Geo. Immigr. L.J. 81, 83 (2001).

[6] See Mayblin, supra note 3, for a critique of the narrative of “new” refugees as constructed through the systematic historic exclusion of non-European refugees.

[7] Jennifer Moore, From Nation State to Failed State: International Protection from Human Rights Abuses by Non-State Agents, 31 Columb. H.R. L. Rev. 81, 85 (1999).

[8] Id.

[9] Id. at 104.

[10] Id. at 105.

[11] Elizabeth Keyes, Unconventional Refugees, 67 Am. U. L. Rev. 89 (2017); Shoenholtz, supra note 6.

[12] Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).

[13] 27 I&N Dec. 316, 337 (AG 2018).

[14] Id. at 340.

[15] 957 F.3d 316 (2d Cir. 2019).

[16] Id. at 323.

[17] Id. at 333.

[18] 965 F.3d 883, 898 (D.C. Cir. 2020).

[19] Id. at. 897.

[20] Id. at 888-89.

[21] Id. at *10.

[22] See Steve Y. Koh, Nonacquiescence in Immigration Decisions of the U.S. Courts of Appeals, 9 Yale L. & Pol’y Rev. 430 (1991) for an explanation of why Matter of A-B- still applies despite an appellate court’s rejection of the standard.

Virtual Symposium: China and the International Legal Order

China and International Legal Order
Virtual Symposium
HILJ-YJIL-Oxford | October 15, 2020 

To register, please click the link and provide your name, email address, affiliation, and job title (including student)​: ​https://harvard.zoom.us/webinar/register/WN_RCxnlKkiQMujwaF1UdyTPg​.

 

As deglobalization deepens in centers of capitalism in the North and the COVID-19 pandemic exacerbates tensions between the U.S. and China, China continues to promote its version of economic globalization, particularly through emergent markets in much of the South. Chinese globalization consists of trade and global value chains, investment and development finance, and hard and soft infrastructure—including digital infrastructures—promoted by Chinese and multilateral development banks, SOEs and privately-owned companies, and internationalizing professional services like law firms. China is providing much-needed capital, health aid, and expertise to many regions of the world. At the same time, scholars suggest that “state capital,” which differs from private capital, catalyzes this form of globalization, meaning that outbound capital flows are aligned with the interests of the party-state. Along these lines, China is increasing active not only in existing multilateral legal organizations and financial institutions, such as the WTO, WHO, UN, ISO, but is also establishing its own parallel platforms including the Shanghai Cooperation Organization, Asian Infrastructure Investment Bank, eWTP, World Internet Conference, and the Belt and Road Initiative. Chinese development banks have, in recent years, provided more overseas lending than the World Bank and the IMF combined. China’s technology companies are the largest in the world and providing e-commerce and telecommunications facilities, including 5G, through the “Digital Silk Road.” These developments have significant consequences for global health governance, supply chains, labor and environmental rights, privacy, security, and freedom of speech. State response to the coronavirus pandemic has done little to create consensus around these issues and the interstate system appears to be shifting around two emergent spheres of influence—that of China and the U.S. It is at this current turning point that we convene this symposium to examine how a globalizing China is shaping or otherwise influencing the international legal order, one that has been allegedly designed by and for private capital from the global North, and conversely, how existing international legal institutions, Western states, and “Belt and Road” partner states are responding to an ascendant China.

This symposium, a unique collaboration between ​Harvard International Law Journal​, Yale Journal of International Law,​ and the “China, Law and Development” project and the Commercial Law Centre, both at the University of Oxford, features scholars from not only the U.S. and China but also Hong Kong, Singapore, the U.K., and Brazil. The symposium highlights the scholarship of not just established scholars, but also junior scholars, and law students, as well, including one panel devoted to law students. The symposium is aimed at opening up intellectual exchange about China’s relationship to the changing international legal order, including, centrally, the U.S.-China relationship, and also additional states that have strong economic, legal, and security ties with China.

 

5:00 PM – 5:30 PM

Opening Remarks

Matthew S. Erie, Associate Professor of Modern Chinese Studies and Principal Investigator of the CLD Initiative, Oxford University

William P. Alford, Jerome A. and Joan L. Cohen Professor of Law, Director of East Asian Legal Studies Program, Harvard Law School

Wang Chenguang, Professor of Law and Former Dean, Tsinghua University Law School 

Welcome from the Hosts

Roberta T. Mayerle and Steven Wang, Editors-in-Chief of the Harvard International Law Journal

Ann Manov and Omar Shehabi, Co-Editor-in-Chief and Executive Editor for Features of the Yale Journal of International Law

5:30 PM – 6:50 PM
Panel 1: China and the World

PRESENTERS

Tom Ginsburg, Leo Spitz Professor of International Law and Professor of Political Science, University of Chicago Law School
“The BRI, Non-interference, and Democracy”

Wang Guiguo, President of Zhejiang University Academy of International Strategy and Law, Zhejiang University Guanghua Law School
“The Belt and Road in the Changing International Legal Order”

Steven Wang, J.D. Candidate and Co-Editor-in-Chief of the Harvard International Law Journal, Harvard Law School
“Indigenous Constitutionalism and Global Legitimacy: Uncovering Roots of Constitutionalism in the Chinese Past”

DISCUSSANTS

Taisu Zhang, Professor of Law, Yale Law School

Kristin van Zwieten, Clifford Chance Associate Professor of Law and Finance, and Director of the Commercial Law Centre of Harris Manchester College, Oxford University

MODERATOR

Lara Markey, Features Editor, Yale Journal of International Law

 

Panel 2: Facilitators of China Law

PRESENTERS

Matthew S. Erie and Sida Liu, Associate Professor of Sociology and Law, University of Toronto
“The Architects of China’s International Legal Order”

Weixia Gu, Associate Professor of Law, University of Hong Kong
“China’s Law And Development: A Case Study Of The China International Commercial Court”

Ji Li, John & Marilyn Long Professor of US-China Business and Law, University of California, Irvine School of Law
“Meeting Law’s Demand Chinese Multinationals as Consumers of US Legal Services”

DISCUSSANTS

William P. Alford

Linda Mulcahy, Professor of Socio-Legal Studies and Director of the Centre for Socio-Legal Studies, Oxford University

MODERATOR

Eric Holmberg, Line Editor, Harvard International Law Journal

 

Panel 3: Trade and Investment

PRESENTERS

Henry Gao, Associate Professor of Law, Singapore Management University
“Across the Great Wall: E-Commerce Joint Statement Initiative Negotiation and China”

Fabio Costa Morosini, Associate Professor, Federal University of Rio Grande do Sul School of Law, and Michelle Ratton Sanchez Badin, Associate Professor, Law School of Getulio Vargas Foundation
“Constituting China’s International Legal Ordering: Ideas And Practices Around Chinese Investments In The Brazilian Energy Sector”

Gregory Shaffer, Chancellor’s Professor of Law and Director of Center on Globalization, Law, and Society, University of California, Irvine School of Law
“Governing the Interface of China-US Trade Relations”

Xia King, Assistant Professor, The University of Hong Kong, Department of Law
“Unpacking China, Inc. In Africa: State-market Relations In China’s Outward Investment”

DISCUSSANTS

Mark Wu, Harvard Law School, Henry L. Stimson Professor of Law, Vice Dean for the Graduate Program and International Legal Studies, Harvard Law School

Kathleen Clausen, Associate Professor of Law, University of Miami School of Law

MODERATOR

Prakhar Bhardwaj, Article Editor, Harvard Law School

 

6:50 PM – 7:20 PM
Young Scholars Workshop 

7:20 PM – 7:35 PM
Closing Remarks

Mark Wu

Robert Williams, Executive Director of Paul Tsai China Center, Yale Law School

Matthew S. Erie

Call for Submissions: China and the International Legal Order

Call for Submissions for “China and the International Legal Order” Virtual Symposium

Due: Friday, October 2nd by 11:59 AM

The Harvard International Law Journal and the Yale Journal of International Law are pleased to invite student submissions for the ‘China and International Legal Order’ Virtual Symposium, to be held on October 15th, 2020. The Journals welcome unpublished papers, paper drafts, and case notes that engage with current topics on China and international law broadly understood, including China’s participation in and influence on public and private international law, international legal organizations, and the legal and regulatory systems of China’s trading partners, particularly emerging economies. The authors of selected papers will have the opportunity to present their pieces at the Symposium and receive feedback from acclaimed scholars in the field. It would be an invaluable experience for young scholars in the field of international law to showcase their work and build professional connections.

The Journals may select among the pieces presented for publishing in a special volume. Pieces should be between 8,000 and 10,000 words, including footnote citations. Only current law students or graduates one year out (JDs, LLMs, and JSDs/SJDs all welcome) are eligible for the opportunity.

To submit, send a Word version of your paper draft and a resume to submission.cilo@gmail.com with the subject line “Student Writing Submission” by October 2nd.

Symposium Conference: International Trade in the Trump Era

On February 22, 2019, YJIL successfully hosted a one-day conference at Yale Law School entitled “International Trade in the Trump Era.” The conference corresponds to the series of Features Essays published as a part of our most recent Features Symposium on the same topic.

In addition to the Features Symposium contributors, we welcomed the following participants, who took part in a lively discussion before an engaged audience of Yale students:

  • The Honorable Timothy C. Stanceu, Chief Judge, U.S. Court of International Trade
  • The Honorable Gary S. Katzmann, Judge, U.S. Court of International Trade
  • Brian Bombassaro, International Trade Counsel, U.S. Senate Committee on Finance
  • Kelly Ann Shaw, Special Assistance to the President and Senior Director for International Trade, Investment and Development

Professors Gregory Shaffer and Chantal Thomas participated by video conference. We wish to thank all of the conference attendees for their participation. We are also grateful to the Yale Law School staff and the Oscar M. Ruebhausen Fund for generously sponsoring the event.

Please find the conference agenda attached.

Features Symposium: International Trade in the Trump Era

The international trade order is in crisis. Since the election of President Donald J. Trump, the United States has initiated—and escalated—a trade war with China, forced the renegotiation of the North American Free Trade Agreement (NAFTA), and threatened to upend the World Trade Organization (WTO) by blocking appointments (and re-appointments) to its Appellate Body. Protectionism is on the rise: reversing a longstanding political consensus, tariffs have once again emerged as a central issue in U.S. international trade policy.

What does this all mean? Where does it lead? Is the established order of international trade—underpinned by the WTO and multilateral trade agreements—on the verge of collapse? Or is it, as John Gerard Ruggie said of the “new protectionism” that arose in the 1970s, simply an indication that the existing order is adapting to new circumstances? The authors in this Features Symposium grapple with these difficult, and consequential, questions.

The Features Symposium is a new venture by YJIL Online. Its publication will be accompanied by an in-person event, to be held at Yale Law School, on February 22, 2019.

* Note: Some of these essays have been previously published on this page in unofficial, non-consecutively paginated form. Please use the official versions provided below.

Introduction
Kathleen Claussen & David Singh Grewal

The Trump Administration and the Future of the WTO
Rachel Brewster

Trade, Redistribution, and Imperial Presidency
Timothy Meyer

A World Trade Organization for Workers?
Joel P. Trachtman

A Tragedy in the Making? The Decline of Law and the Return of Power in International Trade Relations
Gregory Shaffer

Protectionism’s Many Faces
Andrew Lang

Old Wine in New Bottles? The Trade Rule of Law
Kathleen Claussen

A Research Agenda for Trade Policy Under the Trump Administration
David Singh Grewal

Trade and Development in an Era of Multipolarity and Reterritorialization
Chantal Thomas

The Vital Role of the WTO Appellate Body in Promoting the Rule of Law and International Cooperation: A Case Study
Padideh Ala’i

Epilogue
Trump Change: Unilateralism and the “Disruption Myth” in International Trade
Harold Hongju Koh


* Cover photo by Gage Skidmore. Source: Wikimedia Commons.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Forum: The ICC and Afghanistan – Time to End Impunity?

Written by Mehdi J. Hakimi*

Following the Taliban’s announcement of their annual spring offensive, violence has ratcheted up across Afghanistan. According to the UN Assistance Mission in Afghanistan (UNAMA), the Afghan conflict resulted in more than 10,000 civilian casualties in 2017 alone. The mounting atrocities in Afghanistan have finally prompted the International Criminal Court (“ICC” or the “Court”) to consider launching a formal investigation.

On November 20, 2017, Fatou Bensouda, the chief prosecutor of the ICC, requested judicial authorization to commence a formal investigation into alleged war crimes and crimes against humanity committed in Afghanistan since May 1, 2003. The 181-page request (not including annexes) was submitted by Bensouda’s Office of the Prosecutor (OTP) to a three-judge panel in the ICC’s Pre-Trial Chamber (PTC). In its request, the OTP sought authorization to investigate alleged crimes committed by the Taliban and their affiliates, the Afghan National Security Forces (ANSF), and the U.S. military and the CIA. This essay surveys the OTP’s charges against these actors and provides preliminary reflections on the task before the Court.

The Taliban and Haqqani Network

The OTP attributes the bulk of the atrocities to the Taliban and their affiliated Haqqani Network, alleging that these two groups have committed the following crimes against humanity: murder; imprisonment or other severe deprivation of physical liberty; and persecution against any identifiable group or collectivity on political and gender grounds.[1] In addition, both groups are alleged to have committed the following war crimes: murder; intentionally directing attacks against the civilian population, humanitarian personnel, and protected objects; enlisting children under fifteen or using them in hostilities; and killing or wounding treacherously a combatant adversary.[2]

In its request, the OTP did not consider the conduct of other terrorist groups operating in Afghanistan, such as Daesh/Islamic State Khorasan Province (Daesh/ISKP). This is mainly due to the OTP’s limited powers during preliminary examination, the lower evidentiary threshold at the pre-investigative stage, and the ambiguous relationship between the Taliban and other terrorist groups.[3] For example, Daesh/ISKP claimed a recent attack in Kabul, but the U.S. military believed that the Taliban were the true authors of the attack. Similarly, the Taliban and Daesh seem to have acted in concert in the massacre of ethnic Hazara civilians in the Mirza Olang village of Sari Pul province in August 2017. As the OTP acknowledged, once the investigation is authorized, it will be necessary (and more feasible) to closely examine the violence perpetrated by these other groups and their links with the Taliban.

Perhaps the biggest omission in the OTP’s request is the crime against humanity of persecution against any identifiable group or collectivity on ethnic and religious grounds. In particular, the widespread and systematic attacks against the ethnic Hazara population, of largely Shia denomination, are conspicuously missing in the submission. Adding to their historical persecution, the Taliban and Daesh affiliated groups have launched an onslaught of attacks against Hazaras in both Afghanistan and Pakistan in recent years. Yet the OTP only cites one such attack—the killing of 11 people in the Khas Uruzgan district on June 24, 2010[4]—in charging the Taliban and affiliated armed groups with the crime against humanity of murder, not persecution on ethnic and religious grounds.

The absence of the additional charge from the OTP’s request, at least at this preliminary stage, may be due to the perceived politically sensitive nature of the issue. The Afghan government has not exactly taken a kind stance toward Hazaras. For instance, against the recommendation of an independent German engineering firm tasked with evaluating potential routes,  the government recently scrapped a plan to implement a major electricity project through the Hazara-populated regions. The government’s decision prompted a public outcry and protests in Kabul. The protests were attacked by terrorists reportedly affiliated with Daesh, resulting in approximately 500 civilian casualties, almost all of whom were Hazara. Despite the potential sensitivity of the issue, the omission of this charge from the OTP’s request does not preclude its examination once the PTC authorizes a formal investigation.[5] Given the preliminary nature of the pre-investigative stage, a formal investigation could—and should—be expanded to examine other potential crimes, including ethnicity and religion-based persecution.

Afghan National Security Forces

The OTP is also scrutinizing the role of the Afghan government in the conflict. The OTP alleges that the Afghan National Security Forces (ANSF) committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and sexual violence against conflict-related detainees.[6] The OTP accuses members of the National Directorate for Security (NDS) and the Afghan National Police (ANP) of perpetrating these Article 8 crimes on a large scale.

For these charges to continue, the Court must have jurisdiction over the case, and the case must be admissible. As a State Party to the Rome Statute, Afghanistan is subject to the Court’s jurisdiction for all crimes committed within its territory since May 1, 2003. With regard to admissibility, Article 17 of the Rome Statute stipulates that for a case to be admissible, (1) the State that would normally have jurisdiction must be “unwilling or unable genuinely to carry out the investigation or prosecution”; (2) any decision not to prosecute by the State must have “resulted from the unwillingness or inability of the State genuinely to prosecute”; (3) the defendant must not have been tried before; and (4) the case must be sufficiently grave.[7] The first three factors are sometimes referred to as the “complementarity” component of the admissibility test, while the fourth element forms the “gravity” component. The OTP argues that the case here satisfies all of the above criteria. It found that no national investigations or prosecutions have been conducted or are ongoing against those most responsible for the alleged crimes,[8] and that the gravity of the alleged conduct warrants prosecution.[9]

One obstacle to the Court’s exercise of authority is Afghanistan’s 2007 amnesty law, which pardons perpetrators of war crimes and crimes against humanity. [9] In its request, the OTP rightly criticizes the law of contributing to a culture of impunity within the country.[10] For example, the Afghan government invoked the amnesty law in its peace deal with Hezb-e-Islami, a previously terrorist-designated group led by the notorious warlord Gulbuddin Hekmatyar. After the government pardoned him, Hekmatyar was taken off the UN sanctions list, and his fighters have been released from prison—only to join the Taliban and resume fighting. Since returning to Kabul, Hekmatyar has sowed discord and even endorsed suicide attacks.

The ongoing peace process with the Taliban will further complicate the task of investigating the alleged crimes. Buoyed by the Hekmatyar deal, President Ghani has continued Karzai’s policy of wooing the Taliban, the group responsible for most of the alleged crimes. Ghani’s recent unilateral ceasefire with the Taliban resulted in thousands of insurgents pouring into major cities and even occupying areas in Kabul. Such “peace” deals with the Taliban—in which key stakeholders such as victim representatives and human rights groups are not given a voice—will inevitably pose major challenges to the OTP’s proposed investigations of the atrocities.

U.S. Armed Forces and the CIA

In addition to the Taliban and Afghan officials, in an unprecedented move, the OTP has proposed investigation of alleged war crimes by U.S. authorities. In particular, the PTC must decide whether to authorize investigation of the following alleged Article 8 crimes by the U.S. armed forces and the CIA: torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence.[11] The alleged crimes include those committed in Afghanistan, as well as those committed in other States Parties that have a nexus to the Afghan conflict: Poland, Romania, and Lithuania. These alleged acts were committed against suspected Taliban and Al Qaeda detainees, primarily during the period from 2003 to 2004. Having deemed the alleged crimes sufficiently grave, the OTP has further contended that domestic investigations and proceedings by the United States have focused on the rank-and-file rather than those most responsible for the alleged crimes.[12]

So far, the U.S. government has argued that the ICC lacks jurisdiction over American nationals because the United States is not a party to the Rome Statute. However, pursuant to Article 12(2), the Court has jurisdiction over any crimes committed on the territory of Afghanistan since May 1, 2003, regardless of nationality. According to the former chief prosecutor of the ICC, a better argument might be based on the Status of Forces Agreement (SOFA) between the United States and Afghanistan, which could preclude the ICC from exercising jurisdiction over American nationals. But SOFA-based arguments, like the one raised by Michael Newton,[13] are also susceptible to challenges. This is because of at least four reasons:

First, such arguments typically fail to distinguish between the existence of jurisdiction and its exercise.[14] Broadly speaking, jurisdiction entails two distinct aspects: jurisdiction to prescribe and jurisdiction to enforce. Prescriptive jurisdiction, also known as legislative jurisdiction, refers to the state’s authority to assert the applicability of its laws to given conduct. Meanwhile, enforcement jurisdiction, also called executive jurisdiction, is the state’s right to enforce its laws through its investigative and coercive powers. Unlike enforcement jurisdiction, prescriptive jurisdiction can be extraterritorial.

Under Article 98(2) of the Rome Statute, certain international agreements, like the SOFA, may constrain the exercise of domestic enforcement jurisdiction by a State Party. However, such agreements do not extinguish a State Party’s plenary prescriptive jurisdiction.[15] Prescriptive jurisdiction is an inherent attribute of a state’s sovereignty—that is, the “exclusive competence of the State in regard to its own territory”[16]—and, as such, cannot be contracted out through the SOFA.

Second, the Rome Statute’s structure suggests that the Court’s jurisdiction is not precluded by bilateral agreements like the SOFA. Article 98, on which Newton’s argument rests,[17] is located within Part XI of the Rome Statute, which addresses international cooperation, rather than Part II, which addresses jurisdiction.

Third, a distinction should be made between the ICC’s jurisdiction over the crime of aggression on the one hand, and the Court’s jurisdiction over war crimes and crimes against humanity on the other. While Article 15 bis (5) expressly excludes the Court’s jurisdiction over the crime of aggression committed by nationals of non-States Parties, the Rome Statute provides no such exclusion in respect of war crimes and crimes against humanity.[18]

Finally, other major international conventions provide similar criminal jurisdiction over nationals of non-States Parties. Examples include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention against Transnational Organized Crime.[19] For these reasons, the Court should not be in want of legal ammunition as it considers asserting jurisdiction over the United States.

Besides the substantive legal points, however, the OTP’s proposed investigation into U.S. conduct in Afghanistan also raises significant political and prudential questions. The Trump administration, known for its hostility toward international agreements and institutions, seems poised to adopt a particularly combative stance toward the ICC. Last year, now-National Security Advisor John Bolton condemned the OTP’s plan in this case, arguing that “the Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy.” Indeed, Bolton suggested, “[e]ven merely contesting its jurisdiction risks drawing the U.S. deeper into the quicksand.” Recently, the United States also boycotted an informal UN Security Council meeting marking the Rome Statute’s twentieth anniversary. Such a decision is rare for a permanent member of the Council, and reflects the Trump administration’s particular disdain for the Court.

The Trump administration’s stance towards the Court represents a marked shift from the policy of strategic collaboration that prevailed during the second half of the Bush administration and under President Obama. It harkens back to—and builds upon—the United States’ historical antagonism with the Court. Back in 2002, when the Court was founded, Congress passed the American Service-Members’ Protection Act (ASMPA), a bill designed to limit cooperation with the Court. Meanwhile, the Bush administration tried to isolate the Court and prevent it from acquiring further legitimacy by not only “unsigning” the Rome Statute, but also entering into more than one hundred bilateral immunity accords with States Parties. These “Article 98 agreements” were designed to exempt Americans from ICC jurisdiction. (The SOFA with Afghanistan is one such agreement.)

This history and recent actions by the Trump administration suggest that the OTP will likely encounter significant resistance from U.S. authorities in its investigation (assuming that it is approved by the PTC).

Conclusion

Afghans anxiously await the ICC’s (likely affirmative) decision to authorize a formal investigation. Despite the difficulties the OTP encountered in reaching out to victims, the victim representations it received overwhelmingly support the investigation into war crimes and crimes against humanity in Afghanistan. Taking advantage of an increasingly feckless, and at times conniving, Afghan government, the Taliban and their affiliates continue to inflict bloodshed and suffering on the Afghan people. A formal investigation into the atrocities in Afghanistan is long overdue, and will be an uphill battle. But justice demands an emphatic answer to those who’ve grown accustomed to, and profited from, impunity—no more.

 


* Mehdi J. Hakimi is the executive director of the Rule of Law Program and lecturer-in-law at Stanford Law School. Mr. Hakimi was the former chair of the law department at the American University of Afghanistan.

[1] Situation in the Islamic Republic of Afghanistan, No. ICC-02/17, Request for Authorisation of an Investigation Pursuant to Article 15, ¶ 72 (Nov. 20, 2017), at https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF [hereinafter “OTP Request”]; Rome Statute of the International Criminal Court arts. 7(1)(a), (e), (h), opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter “Rome Statute”].

[2] OTP Request, supra note 1, at ¶ 123; Rome Statute art. 8.

[3] See OTP Request, supra note 1, at ¶¶ 37, 62-63.

[4] Id. at ¶ 100.

[5] See, e.g., Situation in the Republic of Kenya, No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ¶¶ 74-75 (Mar. 31, 2010), at https://www.legal-tools.org/doc/f0caaf/pdf/ (“The Chamber also underlines that in the development of the proceedings the Prosecutor is neither bound by his submissions with regard to the different acts constituting crimes against humanity, nor by the incidents and persons identified in the annexes appended to the Prosecutor’s Response. . . .”).

[6] OTP Request, supra note 1, at ¶ 161.

[7] Rome Statute art. 17(1).

[8] OTP Request, supra note 1, at ¶¶ 269, 276.

[9] See id. at ¶¶ 337, 344.

[10] Id. at ¶ 5.

[11] Id. at ¶ 187.

[12] See id. at ¶¶ 299-300.

[13] See Michael A. Newton, How the International Criminal Court Threatens Treaty Norms, 49 Vand. J. Transnat’l L. 371, 405 (2016) (arguing that the SOFA between the United States and Afghanistan obviated the latter’s ability to delegate jurisdiction over U.S. nationals for crimes committed in its territory to the ICC).

[14] For analysis of the differences between the various aspects of state jurisdiction, see generally Roger O’Keefe, Response: “Quid,” Not “Quantum”: A Comment on “How the International Criminal Court Threatens Treaty Norms”, 49 Vand. J. Transnat’l L. 433, 435 (2016); Carsten Stahn, Response: The ICC, Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine—A Reply to Michael Newton, 49 Vand. J. Transnat’l L. 443, 450 (2016). See also Roger O’Keefe, Universal Jurisdiction—Clarifying the Basic Concept, 2 J. Int’l Crim. Just. 735, 736-37 (2004).

[15] A state’s “title to exercise jurisdiction rests in its sovereignty.” SS Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 19.

[16] Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).

[17] See Newton, supra note 13, at 391 (discussing the intent of Article 98).

[18] In full, Article 15 bis (5) states: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Rome Statute art. 15 bis.

[19] See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 5, Dec. 10, 1984, 1465 U.N.T.S. 85; Convention against Transnational Organized Crime art. 15, Nov. 16, 2000, 2225 U.N.T.S. 209.

Forum: Reflections on a Potential Peace Treaty for the Korean Peninsula

Written by Jonathan Worboys* and Laura Edwards**

Introduction

The first half of 2018 saw a welcome de-escalation of tensions on the Korean Peninsula. In particular, two unprecedented events heightened the anticipation for an official end to the Korean War: the Inter-Korean Summit Meeting at Panmunjeom on April 27, 2018, and the Singapore Summit between the United States and North Korea on June 6, 2018.

These events have catalyzed discussions regarding the establishment of a lasting peace regime for the Korean Peninsula. Recognizing the express intentions of the parties to bring an official end to the Korean War, this article provides initial reflections on and outlines the international law implications of a potential peace treaty for the Korean Peninsula. Furthermore, because peace talks between North Korea, South Korea, and the United States are still in their early stages, this article seeks to highlight some of the critical questions for consideration as the parties try to move toward a fully-formed peace treaty.

What form would an agreement take? 

For the past sixty-five years, an armistice agreement has regulated hostilities on the Korean Peninsula. The agreement came into effect in 1953 after it was negotiated by military representatives from the two Koreas, China, and the United States, with the United States representing the United Nations Command.[1] Unlike a formal peace treaty, which officially terminates war, an armistice agreement simply “suspends military operations.”[2]

The Panmunjeom Declaration, signed on April 27, 2018,[3] outlines the intention of the two Koreas to turn the 1953 Armistice Agreement “into a peace treaty.[4] However, the recent joint statement released by President Donald Trump and North Korea’s Kim Jong Un at the Singapore Summit (Joint Kim-Trump Statement) does not refer specifically to the creation of a “peace treaty,” but rather to a “lasting and robust peace regime.”[5] While the term “treaty” typically denotes an agreement that is binding in international law, states may choose from an array of other instruments, such as a “Memorandum of Understanding,” “Convention,” or “Protocol,” to potentially create legally binding relations. Whether or not an agreement between states is designated a “treaty” is therefore a matter of substance, not just definition.

Although there appears to be some uncertainty about the exact description of the instrument in this case, we expect that the parties will enter into a treaty within the meaning of Article 2(1) of the Vienna Convention on the Law of Treaties (VCLT). Such a treaty would create rights and obligations that are enforceable under international law and potentially possess the endorsement of the UN Security Council as well. This is notwithstanding the fact that North Korea is not a party to the VCLT,[6] as Article 6 of the VCLT affirms that every state possesses the capacity to conclude treaties.

Who would be the parties to a peace treaty?

It is clear that both Koreas would need to be formal parties to the agreement in order to achieve lasting peace. The inclusion of both Koreas should not be treated as a foregone conclusion, however, as North Korea has attempted to exclude South Korea from a peace treaty with the United States on several previous occasions.[7] Nevertheless, both Koreas expressed their intention to work together at the April 2018 Inter-Korean Summit, as the two leaders agreed to convert the Korean Armistice Agreement into a full peace treaty. Subsequently, the parties expressly affirmed this commitment in the Panmunjeom Declaration.[8]

The Panmunjeom Declaration also perceives a direct role for both the United States and China in the peace talks, because it stipulates that the two Koreas will pursue trilateral meetings with the United States, or quadrilateral meetings with the United States and China.[9] Following the Singapore Summit on June 6, 2018, it became even clearer that the parties intend the United States to play a direct role in the peace process, including an eventual peace treaty. The United States has a significant stake in the peace process as well, since it hopes to see an end to North Korea’s nuclear weapons and ballistic missile programs, which pose a grave security threat to both the United States and to key allies in the region. However, as already highlighted, the Joint Kim-Trump Statement that was issued at the conclusion of the Singapore Summit does not make any express reference to a peace treaty per se, nor does it explicitly refer to the role of the United States in this regard.

A conceivable alternative is for the United States to simply endorse an inter-Korean peace treaty without itself becoming a treaty party.[10] The United States has a long history of acting as a witness to such inter-state agreements, including the Algiers Agreement between Eritrea and Ethiopia in 2000,[11] the Itamaraty Declaration of Peace between Ecuador and Peru in 1995,[12] and the Washington Declaration between Israel and Jordan in 1994.[13]

Commentators have also raised the possibility that any government that contributed armed forces to the United Nations Command (“contributing governments”) could have a legitimate claim to be party to a subsequent peace treaty.[14] At the moment, however, this option remains a remote possibility given that the two Koreas have identified only the United States (and possibly China) as legitimate negotiating partners for the peace talks. Since the Panmunjeon Declaration was signed, no contributing governments are known to have expressed an interest in expanding the number of treaty signatories at this time.

What are the possible legal implications of a peace treaty?

As with all inter-state peace agreements, a formal peace treaty is capable of being legally binding and would have the foremost effect of officially terminating the Korean War.[15] Assuming that the terms of the treaty are binding on the same parties to the 1953 Armistice Agreement, a peace treaty may also supersede the agreement by operation of law, or by making the latter obsolete.[16]

A formal peace treaty would also affect the tenuous legal and socio-legal frameworks that have developed since the 1953 Armistice Agreement was originally implemented. For instance, the peace treaty might also regulate the presence of foreign armed forces on the Korean Peninsula.[17] In The Case Concerning Armed Activities,[18] the International Court of Justice highlighted the importance of outlining a modus operandi for military presence in a peace treaty.[19] In particular,  a key issue of contention in the case was whether certain provisions of the Lusaka Ceasefire Agreement constituted consent by the Democratic Republic of the Congo to the presence of Ugandan troops in border areas.[20] Neither the Panmunjeom Declaration nor the Joint Kim-Trump Statement makes any reference to troop presence. However, with recent signs that the United States and South Korea plan to halt their joint military exercises, a modus operandi on troop presence may be an especially important consideration when negotiating a peace treaty in this case. [21]

Beyond use of force and military arrangements, twenty-first century peace treaties also frequently refer to obligations under international humanitarian law. Recent events have already highlighted two important issues relevant to international humanitarian law for a future Korean peace treaty: the return of POW/MIA remains[22] and the reunion of separated families.[23] To further ensure that these obligations are binding on the parties (and perhaps more importantly, observed in practice), the peace treaty may refer to the 1949 Geneva Conventions, which are the central international laws governing states’ actions in war.  Specifically, the peace treaty may cite Additional Protocols I[24] and II[25], which regulate POW/MIA remains and the reunion of separated families, respectively.

At this stage, it is not yet clear whether a Korean peace treaty would also refer to general obligations under human rights law. To date, inter-state peace treaties have rarely featured general human rights commitments beyond the status of the party states’ nationals.[26] Nevertheless, given the particular nature of the human rights situation in North Korea, which has been identified by Human Rights Watch as “one of the world’s most repressive states,”[27] a peace treaty may provide an opportune moment to consider the role of human rights commitments in inter-state peace agreements.  Such obligations could, for example, commit North Korea to engaging more closely with the United Nations human rights mechanisms, possibly by taking action on the findings of the 2014 UN Commission of Inquiry Report. Other pertinent commitments may also include obligations to accept humanitarian aid, to take steps to release prisoners and detainees held for activities that should not be criminalized under international law (e.g. exercising free speech), and to put an end to the involuntary separation of families.

Finally, there remains the critical question of denuclearization in relation to a potential peace treaty. While both the Panmunjeom Declaration[28] and the Joint Kim-Trump Statement[29] refer to “complete denuclearization” of the Korean Peninsula, the complexities associated with achieving this goal are undoubtedly significant.

Although many factors relating to denuclearization and the peace process remain unsettled, a final peace treaty could conceivably refer to North Korea’s ratification of the Treaty on the Non-Proliferation of Nuclear Weapons and any legal obligations that may arise as a result. Leading up to the conclusion of a peace treaty, both sides could also consider working towards a performance-based plan for achieving denuclearization with the possibility of linking denuclearization to other issues of concern, such as the ratification of human rights treaties and the easing of UN Sanctions. Performance-based plans are not new to peace processes, with the most prominent example being the (unimplemented) Performance-based Roadmap to a Two-State Solution to the Israeli-Palestinian Conflict.[30]

Legal validity of a peace treaty and the question of breach.

The final consideration for a potential Korean peace treaty relates to the legal validity of the treaty and the question of breach. It is clear that all parties would be bound to observe their commitments under the peace treaty, in accordance with the principle of pacta sunt servanda.[31]

In order to ensure compliance, a future Korean peace treaty may also consider delegating verification and monitoring functions to members of the international community. Twenty-first century peace treaties frequently delegate such functions to the United Nations in the form of peacekeeping missions, but a growing number of agreements have delegated those duties to other interested parties as well. In the present context, it is likely that any monitoring or verification mission to North Korea would involve the International Atomic Energy Agency and the United Nations.

Regarding treaty breach, international law has clearly established that a breaching party accrues state responsibility. Furthermore, in the event of a treaty breach, the prohibition on the use of force under Article 2(4) of the UN Charter would remain unaffected.[32] In other words, a breach of the peace treaty could not, under any circumstances, lead to the use of force to ensure compliance with it.

Conclusion

This article has outlined some initial reflections on a potential peace treaty for the Korean Peninsula.

There is no doubt that the treaty we have contemplated here would have a profound impact on the international peace regime, with the potential of bringing stability to both the Korean Peninsula and the greater East Asia region. While the prospect of a peace treaty has only just begun to develop, this article highlights some preliminary considerations from an international law perspective, including the form of the agreement, the parties involved, possible legal implications, and the issue of breach.

First, with respect to form, any agreement would likely be a treaty within the meaning of Article 2(1) of the VLCT and international law would apply. Second, with respect to the parties, both Koreas, the United States, and China could all play a role as formal signatories, but there remains the possibility of a purely inter-Korean treaty. Third, as the discussion above outlined, there are several possible legal implications of a binding agreement, including the treaty’s foremost effect of terminating the Korean War and superseding the 1953 Armistice Agreement. The legal consequences of denuclearization, international humanitarian law, and human rights law also all ought to be considered and will undoubtedly be affected by an inter-state treaty.

Finally, all parties to the treaty would be legally obliged to respect their commitments in accordance with the principle of pacta sunt servanda. A breach of the treaty would likely entail state responsibility, but a breach could not, under any circumstances, justify the use of force to ensure compliance with the treaty.

 


Barrister and visiting lecturer in public international law at King’s College London, former Assistant Legal Adviser at the Foreign & Commonwealth Office.

** Legal consultant specializing in mediation, peace processes and government advisory work.

[1] Agreement Concerning a Military Armistice in Korea, July 27, 1953, T.I.A.S. No. 2782, 4 U.S.T. 234.

[2] Hague Convention (IV) Respecting the Laws and Customs of War on Land art. 36, Oct. 18, 1907, 36 Stat. 2227; Hague Convention (II) with Respect to the Laws and Customs of War on Land art. 36, July 29, 1899, 32 Stat. 1803.

[3] Panmunjeom Declaration for Peace, Prosperity and Unification of the Korean Peninsula, (Apr. 27, 2018), full text at http://english1.president.go.kr/BriefingSpeeches/Speeches/32 [hereinafter Panmunjeom Declaration].

[4] Id., art. 3(3).

[5] Joint Statement of President Donald J. Trump and Chairman Kim Jong Un at the Singapore Summit, para. 2 (June 6, 2018), full text at http://www.whitehouse.gov/briefings-statements/joint-statement-president-donald-j-trump-united-states-america-chairman-kim-jong-un-democratic-peoples-republic-korea-singapore-summit/ [hereinafter Joint Statement].

[6] Vienna Convention on the Law of Treaties art. 2(1), opened for signature May 23, 1969, 1155 U.N.T.S. 331.

[7] Anthony DiFilippo, North Korea’s Denuclearization and a Peace Treaty, 7 North Korean Rev. 1, 7-8 (2011).

[8] Panmunjeom Declaration, supra note 3, art. 3(3).

[9] Id.

[10] Patrick M. Norton, NAPSNet Policy Forum Online #2 — Norton, “Ending the Korean Armistice,” Nautilus Inst. for Security & Sustainability: NAPSNet Pol. F. (Mar. 29, 1997), http://nautilus.org/napsnet/napsnet-policy-forum/napsnet-policy-forum-online-2-norton-ending-the-korean-armistice/.

[11] Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia (Algiers Agreement), Dec. 12, 2000, 40 I.L.M. 260.

[12] Declaración de paz de Itamaraty, Ecuador-Peru, Feb. 17, 1995, full text at http://peacemaker.un.org/ecuadorperu-itamaratydeclaration95.

[13] Washington Declaration, Jordan-Isr., July 25, 1994, full text at http://www.kinghussein.gov.jo/w-declaration.html.

[14] Norton, supra note 10.

[15] Martin Wählisch, Peace Settlements and the Prohibition of the Use of Force, in The Oxford Handbook of the Use of Force in International Law, 964 (Marc Weller ed., 2017).

[16] Norton, supra note 10; see also Vienna Convention on the Law of Treaties, supra note 6, art. 59.

[17] Wählisch, supra note 15, at 966.

[18] Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), Judgment, 2005 I.C.J. 168 (Dec. 19).

[19] Wählisch, supra note 15, at 966.

[20] Case Concerning Armed Activities on the Territory of the Congo, 2005 I.C.J. at 211.

[21] Reuters, US, South Korea Agree to Suspend Joint Military Exercise, Int’l Bus. Times (June 18, 2018), http://www.ibtimes.com/us-south-korea-agree-suspend-joint-military-exercise-2692215.

[22] Joint Statement, supra note 5, para. 4.

[23] Panmunjeom Declaration, supra note 3, art. 1(5).

[24] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 34, June 8, 1977, 1125 U.N.T.S. 3.

[25] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol II) art. 4(3)(b), June 8, 1977, 1125 U.N.T.S. 609.

[26] See, e.g., Framework Agreement on the Status of Nationals of the Other State and Related Matters between Sudan and South Sudan, Sept. 27, 2012, full text at http://peacemaker.un.org/sudansouthsudan-framework-nationals2012.

[27] Human Rights in North Korea: June 2018 Briefing Paper, Human Rights Watch, http://www.hrw.org/news/2018/06/05/human-rights-north-korea.

[28] Panmunjeom Declaration, supra note 3, art. 3(4).

[29] Joint Statement, supra note 5, para. 3.

[30] A Performance-based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, Apr. 30, 2003, full text at http://2001-2009.state.gov/r/pa/prs/ps/2003/20062.htm.

[31] Wählisch, supra note 15, at 986.

[32] Id. at 976.

 

Volume 43, Issue 2

Written by Joseph Blocher & Mitu Gulati

On June 11, 2017, Puerto Rico held a referendum regarding its legal status. Although the circumstances were complex and turnout was very low, ninety-seven percent of ballots favored statehood over independence or the status quo. The federal government, however, has financial and political reasons to resist such a preference. Puerto Rico would bring with it not only a massive, unpayable debt, but also the potential to swing the balance of partisan power in Congress. The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions: Could Congress expel Puerto Rico by giving it “independence” against its will? Conversely, do the people of Puerto Rico have a right of “accession” to statehood? The answers are not obvious. International law, we argue, suggests that the people of Puerto Rico have a legal right to determine their own status vis-à-vis the mainland. Whether domestic law protects the same right to self-determination is a more difficult question.

 


Written by Lea Brilmayer

International mass claims commissions (“IMCCs”), a relatively recent phenomenon, test the effective limits of international adjudication. They are large, administratively unwieldy, expensive to operate, and tasked with assignments that are extraordinarily difficult to carry out with any hope of accuracy. How successful they are—and what they are successful at—is still an open question. As ad hoc tribunals, IMCCs are simultaneously established by the parties and also dependent on the international community for support. While formation of such commissions seems motivated most immediately by claimants’ private interest in compensation, IMCCs’ functioning cannot be appreciated without reference to three additional interests of the community as a whole: deterrence, retribution, and closure. Out of these interests, the most important are likely to be compensation and closure; unfortunately, the two are often in tension with one another.

This tension is illustrated by a comparison of the enforcement of three different IMCCs’ awards. The Iran-U.S. Claims Tribunal (IUSCT), the United Nations Compensation Commission (UNCC), and the Eritrea-Ethiopia Claims Commission (EECC) have all been justly congratulated for resolving large numbers of legal claims under difficult circumstances. In one notable respect, however, the first two IMCCs were successful and the third was not: in the IUSCT and UNCC, compensation was ultimately received by the injured parties; at the EECC, the awards were never paid.

The reasons relate to differences in the way that the instruments creating the three IMCCs were drafted. Reading between the lines, the expectations of the relevant parties—that is, the defendant States as well as the injured individuals—were very different. The IUSCT and UNCC were set up in ways that ensured payment to the injured parties; the EECC was set up in a way that made such individualized payment nearly impossible.

This result is puzzling. In one case (the EECC), the parties—with the active involvement of the international community—apparently dedicated years of effort and millions of dollars to establish an adjudicative body that, after determining certain claims to be meritorious, actually left those claimants worse off than if there had been no commission at all. Moreover, the international actors that had deeply urged adjudication on the parties did not, in practice, seem to care whether the awards would ever be paid.

In retrospect, however, this result seems to have been perfectly predictable. The explanation is that compensation, paradoxically, may not be the only reason—or, for some actors, the strongest reason—for establishing a mass claims commission; the more salient purpose, from the point of view of the international community, is likely to be closure.

 


Written by Kathleen Claussen

The first commercial treaty concluded by the United States began as a diary entry by John Adams. Nearly two and a half centuries later, the United States and international trade law have come a long way, but the uniqueness of trade lawmaking persists. Then, as now and in the future, U.S. trade law has been and will be heavily influenced by the balance of power between Congress and the Executive. This Article argues that the carefully choreographed procedure for negotiating free trade agreements has contributed to a type of path dependence with respect to the text of those agreements to the detriment of U.S. interests. The recent failure of the Trans-Pacific Partnership Agreement demonstrates this point: much of the agreement language copied prior agreements that were already subject to considerable criticism. Because that language tracked congressionally prescribed negotiating objectives, negotiators felt obliged to recycle it. This single modelling, driven by the bi-branch shared-power construct unique to trade, is under challenge on the eve of the NAFTA 2.0. While standardized language may have utility in certain spheres of international contract, the efficiency gains in international trade agreements do not outweigh an interest to reconsider text and standards where possible. This Article seeks to explain through traditional international relations theories the “default modelling” that occurs in the design of trade law instruments and proposes an under-explored explanation, one that is contrary to the consensus on U.S. foreign relations law more generally: in trade, Congress has assumed a role as principal and the Executive acts as its agent.

 


Written by Adam H. Bradlow

This Note provides the first account of how private investors and domestic communities can intentionally and systematically use the Investor-State Dispute Settlement (ISDS) regime to vindicate human rights claims. It offers a strategic roadmap for social impact bondholders and domestic actors to advance human rights by rooting their ISDS claims in three legal concepts: indirect expropriation, fair and equitable treatment, and the Tokios Tokelés doctrine.

Book Review by Richard A. Falk: International Law in a Transcivilizational World by ONUMA Yasuaki

International Law in a Transcivilizational World by ONUMA Yasuaki, Cambridge University Press, 2017.

Reviewed by Richard A. Falk

On Civilizational Perspective

Professor ONUMA Yasuaki, long considered among the most eminent of international law scholars of our time, has made a clarion call in recent years for what he calls “a transcivilizational approach” to the study and appreciation of international law. Onuma san[*] is judicious in balancing the contributions of international law to a more humane world order against its limitations in regulating behavior from the perspective of peace, sustainability, and equity or justice. What Onuma san has given us in the book under review is a magisterial treatise that provides the best available pedagogic foundation currently available for the study of international law as a discipline. Although clearly written, it is demanding because of its jurisprudential sophistication, historically grounded doctrinal assessments, and comprehensive treatment of the major legal issues on the current global policy agenda.

A few years ago, in an apparent effort to reinforce his Japanese identity, Onuma san wrote to friends and colleagues, requesting that they address him as “ONUMA (or Onuma) san” in accord with Japanese protocol, and even if closely associated, refrain from the Western habit of calling friends by their first names, that is, “Yasuaki.” I suspect that this outstanding scholarly contribution is also an outgrowth of such a maturing of Onuma san’s psycho-political consciousness, resting on an insistence that the future legitimacy and effectiveness of international law will depend on whether it can overcome what Onuma san calls its West-centric bias and orientation.

For many years I worked rather closely with another leading, now deceased, Japanese scholar, Yoshikazu Sakamoto, in a multi-civilizational project, the World Order Models Project.[1]  What makes this reference relevant is that Sakamoto’s preoccupation, alone among the dozen or so participating scholars from around the world representing a wide range of legal traditions and policy priorities, was focused on “identity” as the prime world order challenge of the late twentieth-century post-colonial world. It makes me wonder now whether there is something about Japanese cultural sensitivity in the period since the end of World War II that seeks to find a distinctive path into the “lifeworld” (Habermas) that is authentically faithful to the Japanese national circumstance, yet (i) maintains its intellectual and emotional distance from the United States/Europe and China and (ii) possesses the transnational tools and accompanying outlook needed to solve the challenges facing what Onuma san calls “humankind,” which seems an apparent move in the direction of feminist political correctness, scrapping the more familiar terminology of “mankind.”

Onuma san appears somewhat anguished, not only by a keen awareness of the inherent “impossibility” of achieving a genuine transcivilizatonal approach, given the dominance of Euro-American civilization in the evolution of international law and world order, but also by his own intellectual formation. In his words, “I am just one of many modern persons whose intellectual personality has been constructed by modern European civilization.” He adds, “I am a hybrid being, only part of which is an Asian or Japanese” (p. 7). In another passage Onuma san, almost in a confessional idiom writes, “We are all children of Grotius, Kant and Marx, and therefore ‘Europeans’ in the figurative sense” (p. 13).[2]

He does modify this assertion by the observation that “contemporary members of humankind are also children of Buddha, Confucius, Mohammad, and many other non-Western thinkers.” (p. 13). I really do have some doubts about this unsubstantiated claim, which would seem to suggest that we are all, to some extent, transcivilizational without even realizing it. As a sympathetic reader, I find these non-Western influences hard to find either in Onuma san’s treatment of international law or in my own thinking about comparable issues. To be sure, there is presently a disposition toward humane solutions of global problems and the encouragement of peaceful approaches to international disputes and conflict situations, but such views seem similarly rooted in Western humanist traditions of thought and not necessarily a reflection the influence of non-Western philosophical wisdom.

One feature of Onuma san’s approach that cuts across the grain of typical international law theorizing is his insistence on understanding present reality by adopting a historical approach to international legal doctrine and norms. Onuma san lets us know rather starkly that he has “learned far more from modern European works published from the sixteenth century to the early twentieth century than from post-World War II theories” (p. 13). He does not engage directly with contemporary international law theorizing in the course of his seven-hundred-plus page book, which is somewhat puzzling, since Onuma san’s perspective focuses on the impact of recent events, especially the collapse of European colonialism, followed by the international participation and economic growth of the non-West, especially of Asian countries.  Onuma san strongly believes that these altered material conditions in the character of international relations must make some fundamental adjustments to the nature of international law if it is to gain the global legitimacy required to be effective (p. 53).

Such a concern seems particularly timely in view of the helplessness of the international order to bring peace and stability to the Middle East or to overcome the legal nihilism of a new crop of political leaders, highlighted by the lawlessness of the Trump presidency.

Reflecting personally on such concerns, I realize that I am less hybrid than Onuma san, although I completely agree with his aspirational insistence on transcivilizational authenticity for both historical and practical reasons. I suspect that I am less hybrid because my Western embeddedness takes for granted questions of identity and perspective, which has led my critical energies to express themselves as an internal critic of Western civilization. I am sure that this non-self-consciousness, when it comes to civilizational identity, also follows from the way international law is studied in the United States and Europe, employing an ahistorical jurisprudence rooted in Western values and universalizing pretensions, as well as resting on similar conceptions of the international political context. Although I have been a critic of the way Western policymakers continue to manipulate international law to rationalize a belligerent foreign policy, I have not thought of these dangerous shortcomings as projections of civilizational values but rather as a matter of indulging an insatiable geopolitical appetite.[3]

Turning to substance, Onuma san’s treatment of international law is convincingly grounded in the sociopolitical realities of our time, making it hard to dissent from the lessons he draws. Onuma san places stress on the fact that ninety percent of the world’s peoples are non-Western, and that power relations are changing in ways that favor Asia and diminish the political and economic dominance of the West on a material level. Yet—and here is where Onuma san’s call for change in approach and content becomes most relevant—he anticipates (in a rather complex and somewhat confusing manner) that there will be a continued dominance of Western ideational influence, which he believes will persist deep into the twenty-first century, even in the likely event that China becomes the world’s largest economy. Whether Onuma’s prediction will hold in the event that Trump’s policy of relinquishing global leadership persists is quite uncertain.

Conceptualizing International Law

Onuma san is very clear about how he understands basic issues bearing on the nature and effectiveness of international law. He blames what he calls “domestic model thinking” for a frequent underestimation of the effectiveness and importance of international law to the maintenance of an orderly world. In effect, the weak institutionalization of authority and lack of enforcement capabilities overlook the degree to which State actors and a variety of non-State actors benefit from a stable normative environment that encourages compliance, reliability, and moderation. Onuma san makes the frequently overlooked point that violations of domestic law are common without drawing into question the reality of the legal order. We must learn to evaluate international law in relation to the specific functions it performs given its State-centric modes of operation.

Unlike domestic law, international law is less focused on regulating behavior than in a series of other undertakings that Onuma san enumerates as “prescriptive, adjudicative, justificatory, legitimating, communicative,  rule declaratory, and constructive (or constitutive)” (pp. 30, 585). These functions have more to do with the conduct of statecraft, civic activism, and policy planning than they do with governmental adherence to rules. In this vein, Onuma san is critical of the parallel tendency of international jurists to emphasize adjudication in their presentation of the field. This emphasis exaggerates the relevance that tribunals and judicial decisions have to the diverse modes by which international law fulfills its various functions.

Not surprisingly, Onuma san credits this more existentially-grounded appreciation of international law to his work outside the classroom and library, mentioning specifically his work as “a human rights activist and as an advisor to a member of the Japanese cabinet” (p. 8). In effect, Onuma san wants us to understand that it is in these non-judicial settings of advocacy and advising that the guidelines associated with international law often make their most significant contribution. What Onuma san proposes for the study of international law is a less academically oriented understanding and more of a practitioners’ viewpoint.

Again I am struck by the tensions between Onuma san’s erudition and reliance on political philosophy (especially, Hobbes, Kant, Machiavelli, Karl Schmitt, even Marx), as well as early modern juridical works (especially, Grotius), which stand in contrast to his experiential unbookish insistence on comprehending the scope and functioning of international law by contact with the doing rather than by parsing the nuances of doctrine as enunciated by the judges of the International Court of Justice or the elaborate pontifications of leading jurists. In a similar spirit, Onuma san downplays the constraining role of international law, particularly relating to the behavior of major States, insisting that if a legal system works well, disputes are generally avoided, and behavioral guidelines are invisibly respected as a matter of course or to satisfy national interests.

Another feature of Onuma san’s approach is the avoidance of idealism and legalism in his assessment of what to expect with respect to the links between international law and justice: “[T]he work of international law is in an irrational world where voices seeking justice are often ignored. It is sad to recognize such a reality, but one should not escape from it” (p. 28). In this spirit, which seems more in keeping with a variety of skeptical twentieth-century European thinkers than with a manifestation of non-Western thinking, Onuma san describes himself as “a pessimist in approach” whose advice is “to doubt everything, including one’s own sense, intuitions, premises, and understandings, based on his or her past study and experience”(pp. 28-29).[4]

There are many thoughtful reflections offered by Onuma san as to the development of international law over time—and particularly the emergence of the territorially-oriented European system of sovereign states and its globalization in the past several decades. This transformation of international law reflects both the success of the anti-colonial movement—the greatest pushback ever experienced by the West as a global system—and the essential acceptance of this European way of organizing international relations by the newly independent States of Asia and Africa. This erosion and extension of Euro-centricism has made international law “less imperialistic, racist, male-centric” and hence more globally legitimate (p. 85). At the same time, there is much more to be done in the ideational sphere to attain Onuma san’s transcivilizational goals. He is acutely aware that most writings on international law continue to be reflections predominantly of the Western mentality. This civilizational provincialism will not be overcome until “global discursive space” exhibits a greater responsiveness to the civilizational outlook of the new demographic and normative balances that are heavily weighted in favor of non-Western peoples.

Onuma san’s views here do encourage greater self-reflection and self-criticism by those of us who are representative of the West, and this is good. In some ironic sense, for this reason I find Onuma san’s treatise potentially more valuable for Western readers than for others. I suspect that the Asian scholarly community, especially after twenty years of anti-Western critiques asserting the relevance of “Asian values,” needs no coaching by Onuma san as to the desirability of a transcivilizational perspective.

I also find that some confusion surrounds the post-Cold geopolitical appropriation of human rights, narrowly understood in the West as civil and political rights and invoked as a pretext for military interventions in such non-Western countries as Afghanistan, Iraq, and Libya. In other words, in the post-colonial and post-Cold War world, the West has sought to retain its global role by claiming the high moral ground, creating an entitlement to override non-intervention and self-determination norms that are given priority by most non-Western states.

This development raises two relevant concerns. First, the West claims that the human rights discourse is transcivilizational in character, by its linkage of rights to the generic quality of being “human,” even though its formulations are beholden to Western liberalism. Secondly, the relevance of the continued Westernized dominance of force projection, a salient material reality largely under the aegis of the United States, seems not sufficiently appreciated by Onuma san in his long final chapter on the strenuous efforts of international law—as set forth most authoritatively in the UN Charter—to restrict recourse by States to force. It would appear that this central feature of the global security system raises some serious unanswered questions about the material decline of the West. We still live in a world where all debates and practice pertaining to intervention continue to be discussions about whether the West should intervene in the non-West, and never the reverse.[5]

A Concluding Assessment

There are thoughtful and analytically rigorous chapters on the main themes of international law, each of which warrants extensive comments beyond the limits of this review. In general, rather than a transcivilizational view, what I find more consistently present is an interpretation of the substance of international law from a global perspective that privileges the human interest, yet is restrained by Onuma san’s form of pessimistic realism that is sensitive to the primacy of a State-centric world order that rests on the interaction of egoistic national interests.

To illustrate the accelerating pace of history, Onuma san’s treatise was published before the world was gripped by a populist backlash in politics that has reversed prior democratizing trends. This has produced a surge of chauvinistic nationalisms and a series of elected leaders with autocratic governing styles in some of the world’s most influential countries, including Russia, India, Japan, Brazil, Turkey, and the United States. In addition, the worst nuclear crises in fifty years have threatened catastrophe on the Korean Peninsula as well as in the Middle East with respect to Iran. Beyond this, the Trump presidency has deprived the world of leadership with respect to major issues requiring global cooperation, such as climate change, global migration and treatment of refugees, and famine conditions in several countries. These issues call for what might be considered a meta-civilizational approach that addresses current global challenges on the basis of shared human interests. In my view, Onuma san provides the outlook and understanding that would encourage such enlightened behavior, but it is only presented as a sub-text and is perhaps overshadowed by the less substantiated claim that this treatise provides a transnationalized approach to international law traditions that still prevail under the ideational hegemony of the West despite its partial loss of materialist leverage due to the rise of the non-West.

Despite my quibbles here and there, this is a great book that deserves study by all those concerned about the past, present, and future of international law. Every serious student of the subject can hardly get along without meeting the various challenges posed and interpretations offered by Onuma san in the course of this all-encompassing treatise.

Onuma makes a stirring final appeal that is worth pondering: “International law is an indispensable means for people to realize the material and spiritual well-being of humanity. As such, people should constantly press national governments, international organizations, and other subjects to respect and abide by it” (p. 666). I find this kind of profession of faith in the importance of international law to be a compelling conclusion, including its unexplained yet resonant reference to “spiritual well-being.” This may be the most indispensable element of all!

 

[*] Professor ONUMA Yasuaki has requested that his name appear, in keeping with Japanese tradition, as ONUMA or Onuma san.

[1] See On the Creation of a Just World Order: Preferred Worlds for the 1990s (Saul H. Mendlovitz ed., 1975).

[2] Elsewhere, Onuma san suggests that his intellectual personality was also formed by Buddhist and Confucian thought operating on an “unconscious level” (p. 7). I am puzzled by what is meant in this regard with respect to the concrete pattern of opinions and judgments offered in the course of this most comprehensive study of international law.

[3] My own approach to these issues is most recently set forth in Richard Falk, Power Shift: On the New Global Order (2016).

[4] Perhaps, as a gesture to a transcivilizational approach, Onuma san concludes this line of thought with the following quotation of Confucius: “[I]t should be a pleasure to learn and review constantly and repeatedly” (p. 29). I read such advice as not an expression of pessimism or wisdom from the East but, on the contrary, the near-universal view that learning should be a satisfying lifelong activity that allows ideas and opinions to remain alive so long as they do not become dogma.

[5] This persistence of Western dominance in the security domain does not alter my belief that the unlearned lesson of the Vietnam War is the declining capacity of Western military superiority to control the political outcomes in non-Western contexts. For discussion, see Revisiting the Vietnam War: The Views and Interpretations of Richard Falk (Stefan Andersson ed., 2017).