International Law Weekend 2020

From October 22-24, 2020, the American Branch of the International Law Association will convene its annual International Law Weekend (ILW) conference, to be held online.

Registration is now open for ILW 2020! Registration is $50 for ABILA members who register by October 1, 2020 and $75 thereafter. Registration is $75 for non-ABILA members who register by October 1, 2020 and $100 thereafter. If you are an ABILA member who has not yet paid your dues for 2020 please do so from the Membership page.

If you have any questions, or need assistance, please contact the Membership Officer, Tabitha Crawford (tabitha.c@wustl.edu) Once you have paid your ABILA dues, please click here to register for ILW 2020.

For more information, visit ila-americanbranch.org/ilw.

TO BE HELD ONLINE INTERNATIONAL LAW IN CHALLENGING TIMES @ABILA_official

International Cooperation in a post-Covid-19 Era – China’s Credibility Dilemma and a Possible Way out

While the world is debating whether Covid-19 will reverse economic globalization, China is more concerned about continued economic globalization without it. Even as China gradually recovers from the Covid-19 pandemic and revives its economy, it faces many challenges in responding to the economic effects of the crisis. Among them, the significant disruption to the global supply chain risks eroding China’s established role as a world production center. For example, Japan has earmarked US$2.2 billion of its economic stimulus package to help its manufacturers shift production out of China, as Covid-19 disrupts supply chains between these major trading partners. Also, decoupling from China has been issued with an objective of restoring US manufacturing even before the outbreak of Covid-19.

As risk management strategies, these measures aim to reduce risks arising from supply chain disruptions not only for business firms but also for countries seeking to avoid dependence on other countries as main component suppliers for critical products, including medical and military-related products. On the other hand, from an international legal perspective, these strategies may implicitly signal a credibility dilemma for China as a major world power. This post examines major power’s credibility dilemma in international law and its negative impacts on international cooperation in a post-Covid-19 era, and then explores a possible solution.

As Krisch notes, the international legal policies of dominant states oscillate between two poles: instrumentalization and withdrawal. While these two poles give a major power a lot of space to shape international legal orders, they also push it into a credibility dilemma: other state members would be less motivated or more concerned in developing cooperation with the major power, considering the increased inequality between them in economic and military capability, and lack of means in ensuring it could live up to its word. In other words, a credibility dilemma will constrain the major power in further developing and exercising its influence in international community through cooperating with others, which, in turn, weakens its power. This dilemma also applies to China. Being concerned by other states about its possible noncompliance with international law or shaping international law based on its national interests, China may find it more difficult in cooperating other states or even being isolated.

Also, a credibility dilemma poses a threat to future international cooperation, especially in the post-Covid-19 era. In order to deal with the global economic crisis caused by the Covid-19 pandemic, international cooperation and coordination is needed, with China playing an indispensable role. For example, as a major sovereign creditor, China is expected to participate in a series of sovereign debt restructurings by its debtor countries. In addition, climate change cannot be fully addressed without the active and deep cooperation of China, as the largest emitter of carbon. Without properly dealing with the credibility dilemma facing China, a post-Covid-19 era may see ineffective international cooperation caused by many states’ unwillingness or lack of trust in terms of cooperating with China.

To avoid the international costs created by China’s credibility dilemma, new international cooperation mechanisms should be explored. The organization of the Asian Infrastructure Investment Bank (AIIB) serves as a good model. Established in 2014, AIIB aims to mobilize resources to fill gaps in infrastructure investment and to promote sustainable development mainly in developing countries. As the first multilateral development bank (MDB), whose establishment was led by China, AIIB was once challenged by critics that the Bank was created to serve China’s own interests in reducing its overcapacity, and replacing the global norms created by the existing global financial system. However, its evolving multilateral approach has become a determinative factor in establishing the credibility of the Bank. As Jiejin Zhu explains, in the course of negotiations, China essentially tied its hands by reducing its quota allocation and capital contribution, making concessions to European demands for high standards of transparency and oversight in the Bank’s governance and management, and incorporating global best environmental and social responsibility practices into the Bank’s operation. On the other hand, China encouraged AIIB to join and work with other MDBs including the World Bank Group, to co-finance a series of projects, rather than competing with them. In a nutshell, while China maintained an important role in shaping the AIIB, it made compromises with other members in its management and governance. In return, The Bank’s credibility has been established and strengthened. By the end of 2019, 75 other countries had joined AIIB, including Switzerland and five of the G7 nations (excluding the U.S. and Japan).

As a model for future international cooperation in a post-Covid-19 era, AIIB demonstrates the values of multilateralism in addressing a major power’s credibility dilemma. In this multilateral model, while a powerful state could play a leading role in initiating a cooperation mechanism, the possibility of noncompliance or acting based on national interests would be largely limited by its willingness to make a compromise in negotiating and operating the mechanism, acknowledging that it is an effective way of avoiding its credibility dilemma. Through being involved in such multilateral model, other member states will have more bargaining space to incorporate their interests, and check and balance the predominant state’s power therein. On the other hand, this multilateral model runs in the parallel with and cooperates with other existing multilateral models, which were established by old major powers. This design aims to avoid the situation, in which possible conflicts between new and old major powers lead to competition between two multilateral models, and huge international costs arising from it. The cooperation between the two multilateral models in turn helps to cool down the frictions between two major powers.

The credibility dilemma of powerful states is not a new issue in international law, however the need to address it in order to enable effective international cooperation has become urgent in light of the current global crisis.  Readdressing the values of multilateralism may offer a way forward not only for China but the international community.

The author would like to thank Professor Robert Howse and Michele Krech for their helpful comments on the previous draft.

Introducing Mengjing Kong

It is our great pleasure to introduce our new IntLawGrrls contributor Mengjing Kong. Mengjing Kong is a JSD candidate at New York University School of Law. Her research interests focus on international trade, investment, and financial law. Prior to pursuing doctoral studies, Mengjing worked as a junior legal analyst at the WTO. She also was an intern at the UNCTAD (Division on Technology and Logistics), WTO (Trade and Environment Division),and the UN ESCAP (Trade, Investment and Innovation Division). She passed Chinese bar examination in 2013. Her first post will discuss China’s credibility dilemma and international cooperation in a post-COVID 19 era.

Heartfelt welcome!

Autonomous Weapons Systems: Perpetuating the Gender Bias in Armed Conflict?

“To fight has always been the man’s habit, not the woman’s. Law and practice have developed that difference, whether innate or accidental”

– Virginia Woolf, Three Guineas,1938.

International law has developed on the basis of patriarchal structures. Indeed, this can be clearly seen within International Humanitarian Law (IHL), which can be understood as a “masculine form of domination”. IHL is used to regulate armed conflicts which have, for centuries, been fought by men. As a result, a gender bias has developed, in which masculinity is equated with the status of a warrior and femininity with innocence. This bias is specifically contained within the principle of distinction in IHL, under the Geneva Conventions Protocol I, Article 48. This states that parties to the armed conflict must distinguish between combatants and civilians, and only attack the former.

The question is whether the future use of Autonomous Weapons Systems (AWS) will serve to perpetuate this bias or whether they will disrupt the patriarchal military structure. AWS are defined as any weapon system with autonomy in its critical functions. These weapons are yet to be developed, but pre-cursors are seen in weapons such as South Korea’s semi-autonomous SGR-A1. The use of AWS has the potential to change gender dynamics upon the battlefield.

Gender as a social construct and the binary of sex difference embedded within gender identity has been translated into many areas of international law and IHL is not exempt from this critique. It is a regime that predominantly prioritises men, relegating women to the status of victims and child-bearers. This discrimination and bias can be seen especially in the principle of distinction.

Masculinity in war is associated with a natural ‘protector’ dynamic; the combatants embodying the image of chivalric, just warriors as a direct result of patriarchal norms within society. Women are regularly placed in the same group as children when their experiences within war is considered. In turn, this analogises women with the perceived vulnerability and innocence that children bear in society. It is therefore expected from men’s gendered roles that their duty is to fight in wars to protect women and children. This hegemonic masculinity sustains the patriarchal military structure.

The reality is that many women do act as combatants in armed conflicts, defying the gendered narratives of war. However, their role as combatants is often over-looked by many participants. The generalisation of women as civilians also serves to ignore their unique experiences of war as victims of gender-based violence, perpetrated in armed conflict to ensure maintenance of the subordination of women.

The use of AWS may present an opportunity to rid the gender bias embedded within the principle of distinction; the phrase “robots do not rape” is one that has been used in arguments that propose the use of AWS. Their use presents an opportunity to eliminate gender-based violence as a way of upholding the patriarchal military structure. Rather than viewing women as innocent subordinates, AWS warfare could result in the emancipation of the traditional gender roles prescribed to men and women during wartime. The protector and protected dyad would cease to continue, as all genders would be protected during war by AWS.

Continue reading

Introducing Lara Miriam Ibrahim

It is our great pleasure to introduce our new IntLawGrrls contributor Lara Miriam Ibrahim. Lara is a recent Bachelor of Laws graduate from The University of Sheffield. She graduated at the top of her cohort, and has received a full scholarship to study her LLM specialising in International Law and Global Justice at the same institution. During her undergraduate degree, Lara spent a year at Utrecht University in the Netherlands, where she furthered her knowledge on International Law, particularly from a gendered perspective. 
She is currently working with two NGOs, before the start of her LLM, as well as continuing to volunteer pro bono for destitute asylum seekers in the UK. Her interests lie in International Refugee Law, International Criminal Law and Human Rights, and her aspirations are to work within these areas in the future.

Heartfelt welcome!

Go On! Virtual Book Launch

The Palgrave Handbook of Critical Menstruation Studies is having a virtual book launch, on October 8, at 12:00 EST. The editors and contributors of the handbook will provide introductions and share messages from their chapters. There will also be time for questions from the audience to the editors and contributors. To register for the virtual event, click here. And to access the handbook, click here.

Bully Tactics by the US Administration in an Attempt to Ensure Impunity

By press briefing on September 2, 2020, U.S. Secretary of State Pompeo announced the imposition of sanctions against two International Criminal Court (ICC) officials—Prosecutor Fatou Bensounda and head of the Jurisdiction, Complementarity and Cooperation Division (JCCD), Phakiso Mochochoko.  Pompeo also announced visa restrictions against unnamed ICC personnel.  Many in the US had hoped that the Administration would not take steps to implement Executive Order 13928 issued June 11, 2020 by President Trump, which permitted the imposition of asset freezes and travel bans.  (For a letter by 188 US lawyers and law professors opposed to the Executive Order, see this post.)

There are a host of problematic issues related to the implementation of sanctions; I will enumerate a few.

First, the Executive Order itself rests upon the fallacious premise that the International Criminal Court (ICC) presents “an unusual and extraordinary threat to the national security and foreign policy of the United States” and the US must address this threat because it presents a “national emergency.”  (Executive Order.)  Nothing could be further from the truth.

Second, to impose sanctions against court officials of a judicial institution basically treats ICC officials as akin to terrorists and drug traffickers.  Not only is there absolutely no legal basis for the imposition of these sanctions, but these tactics place the US firmly on the side of impunity and opposed to the rule of law.  (See my prior Opinio Juris blog post.)

United States Senator Patrick Leahy is right to tweet:  “The Trump Administration’s announcement of sanctions against the ICC prosecutor exposes the fallacy of the White House’s professed commitment to the rule of law, and will further undermine U.S. leadership on international justice.”

Third, this whole sorry affair—which imposes serious consequences for the Prosecutor and Mr. Mochochoko—looks startlingly like offense against the administration of justice under Article 70 of the Rome Statute.  Significantly, the European Union has called out the US for “attempt[ing] to obstruct the Court’s investigations and judicial proceedings.”  Article 70 of the Rome Statute gives the ICC jurisdiction regarding offenses “against [the] administration of justice when committed intentionally,” including:  . . .

d)  Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;

e) Retaliating against an official of the Court on account of duties performed by that or another official[.]

Fourth, while the asset freezes appear to target only two individuals, the Executive Order is exceedingly overbroad, covering anyone who provides “services” (Sec. 3 (a)) or “material assistance” (Sec. 1(i)(C)) to the two covered individuals or efforts by the ICC “to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States,” or efforts by the ICC “to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country’s government.”  (Sec. 1(a)(i)(A)-(B).)  This stands to have a profound impact on ICC operations.  As Professor Megan Fairlie and I pointed out in a prior Opinio Juris post, much work at the ICC is not segregated by investigation, so if an IT service provider provides assistance to the ICC, who is to say whether some small measure of that assistance goes to the Afghanistan investigation, meaning the service provider could find its assets frozen.  Individual vendors, ICC personnel, and NGOs engaged in ICC advocacy should not be placed in this precarious position.  It is crucial for US allies who are States Parties to use their persuasive powers to convince the US Administration to reverse these sanctions. 

Fifth, providing “funds” that further the Afghanistan investigation could potentially also be covered (Sec. 3 (a); Sec. 1(a)(i)(A)-(C) (covering the provision of “financial” “support” for efforts by the ICC “to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States”).  The 123 States Parties who fund the ICC need to persuade the US to reverse the Executive Order before the budget negotiations set for the December 7-17, 2020 meetings of the ICC’s Assembly of States Parties.  Their other option is to provide all requested funding to the ICC exceptfor funding to investigate US nationals—thereby assisting the US’s bid for impunity.  And, they might also defund the Israel/Palestine preliminary examination, which, while not expressly mentioned in the Executive Order, also appears to be covered (see Sec. 1(a)(i)(B)) (including “any effort by the ICC to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country’s government”)—meaning the provisions of funds that go towards that preliminary examination could also constitute a violation of the Executive Order (Sec. 1(a)(i)(C)).  The absurdity of encompassing 123 States Parties if they fund the ICC’s 2021 budget not only demonstrates the Executive Order’s profound overbreadth but the urgent imperative of its reversal.  

Finally a posting on Just Security is right to call out the US Administration as to those it has singled out to sanction.  Not only is there no basis to believe the Prosecutor or Mr. Mochochoko actually work on the Afghanistan investigation, the Just Security blog points out the clear optics of imposing sanctions only against ICC officials from African countries.  At a time when the US is undergoing hugely challenging issues in its own race relations, this choice seems hardly coincidental.  Or perhaps the US did not want to antagonize countries such as Canada, Belgium, or Argentina (from which other senior ICC officials hail), but was fine doing so vis-à-vis The Gambia and Lesotho (from which the Prosecutor and Mr. Mochochoko hail).

Bully tactics are the hallmarks of dictators and a profound embarrassment to US citizens who support the rule of law and the International Criminal Court.  Undermining a court designed to prosecute the gravest atrocity crimes of concern to the international community also does profound disserve to the victims of those crimes.

Jennifer Trahan, is Clinical Professor at NYU’s Center for Global Affairs and Director of their Concentration in International Law & Human Rights

Go On! International Law Association’s International Law Weekend

The American Branch of the International Law Association announced open registration for the annual International Law Weekend, which will be held virtually from October 22-24. This year’s theme is “International Law in Challenging Times.” ILW 2020 will explore this issue through a wide array of diverse panels that will touch on both public and private international law. Click here for details.

Interview with Professor Sital Kalantry

Sital Kalantry is the Clinical Professor of Law at Cornell Law School where she founded the International Human Rights Clinic and co-founded the Avon Global Center for Women & Justice. She writes in the fields of comparative feminist legal theory, international human rights, and empirical studies of courts. Her works have appeared in the Stanford Journal of International Law, Georgetown Journal of International Affairs, Cornell Journal of Public Policy to name a few. Her opinion pieces have been published in the New York Times, Slate, the New York Daily News and various other newspapers. We want to thank Sital for all the work and efforts she has contributed to INTLAWGRRLS over the past several years through this farewell post. I had the honor of interviewing her. The interview is transcribed below.

Question: You have written expansively about Women’s Human Rights. What drives you to focus on issues such as Acid Attack Violence, Domestic Violence, Sex-Selective Abortion Bans etc.?

Answer: I have always been interested in gender inequality since a very young age. One of the biggest influences for me were some feminist classes that I took as an undergraduate student at Cornell University. Taking those classes helped me see the world through a lens where one could identify inequality and problems on gender issues. I also had an interest in these aspects because I was born in India and travelled India significantly as I was growing up. Visiting my relatives gave me a new culture. It helped me observe the different kinds of inequalities that are present. I witnessed that there is a difference in the inequality that takes place in India and the United States. This gave me further interest to seeing ways where I might be able to help by solving and rectifying some inequalities.

Question: Your book “Women’s Human Rights and Migration” mentions about the practice of sex- selective abortion and how it violates women’s human rights. This contradicts with the concept of exercising reproductive rights as guaranteed as mentioned in Roe v. Wade. What do you think about this contradiction?

Answer: My thesis in the book is that we cannot have universal solution to gender rights or inequality. In some cases, we have to contextualize the law. There are a number of feminist scholars/ activists in the United States who oppose restrictions on abortion in any way, shape or form. They particularly oppose it because there is a restriction or ban on abortion. In India, feminists initially thought that they have to restrict it because it is being used in a way that is discriminatory to women when female fetuses are being aborted proactively and disproportionately in comparison to male fetuses. My thesis is that each country has its own understanding and there is a different law to have different reasons, goals and consequences from gender inequality’s perspective. So, we need to emphasis more one the contextualized view. When I observe the laws related to abortion in the United States, I think about the scope of the problem. Do we actually have the same magnitude of a problem in the United States as it is in India? And the answer is that we don’t. What are the obstacles which make it more difficult for the women in India? Do they have to sign papers or are they asked questions? Looking at the US perspective, there is no benefit to having this law in terms of equality purposes. In the Indian perspective, it works as a balancing check. Even when considering reproductive rights, you are balancing the interests of the women and the state interest. There is a valid reason why abortion does not take place a few days before the due date. So, there is a balancing that people have to do in India and they have to do it in a different way. After twenty years of experience of Pre- Conception and Pre- Natal Diagnostic Techniques Act (PCPNDT), we need to think whether the law is actually working or not. We need to see the positive and negative consequences of this law. There are different factors to consider and that is how I understand it completely.

Question: You have voiced your insights regarding the gender parity in Courts. What difference do you see when considering the Indian and US Courts in terms of gender parity?

Answer: When you look at the numbers of the Indian Supreme Court and the US Supreme Court and take the number of women as the percentage of the total number of judges, it is actually very similar which is less than 5 percent in both countries. The only difference is that in India, there are thirty judges with one woman and at times, they have two women. Currently in the US Supreme Court, it looks like the US Supreme Court has more which is 3 out of 9 i.e. 33 percent. But over time, it is the same. I feel that when we look at the lower courts in the US, the number of female judges has increased over time up to 20-25 percent but in India, the Supreme Court doesn’t seem to be focused on the gender issue. India is based on quotas and equalities but as observed in the Indian Supreme Court and High Court, the judges appoint the other judges and they are not subjected to any observation. I think this is the reason why the progress for gender equality in the Courts is stalled in India.

Question: What are some of the most memorable key findings of your scholarship in terms of women human rights till now? It could be related to domestic violence, sexual violence, acid attacks against women, human trafficking or any other issue that you have researched closely on.

Answer: It is a tough and broad question to summarize but I think that in the context of surrogacy which happens in India and the United States, I realized that it is important to look at the problems in each country. Based on these observations, one can solve these problems on the basis of the dynamics between the surrogacy and the intense trials of each country. Legislation should be adopted on the basis of the social or historical context within the country. In terms of the study, we frame it as a gender violence issue and can think of it as pick-pocketing, murder or battery but this crime is motivated towards women because of their gender. Often in India, it is perpetrated by men so we did data collection on who the perpetrators are. So, we often think of it specifically as a gender crime.

Question: Your scholarship provides a lot of fodder for the policy makers concerning the rights of women and girls. There must be instances where your work has made readers think about practically putting your ideas into use. Would you please share any such instances?

Answer: Students have been really instrumental in the human rights work that is being done and students have put together research that is done under my direction. This research has been cited at the Indian Supreme Court in the Acid Attack case. The Report on Surrogacy Law has been put forth in the Indian Parliament. It has been cited in many newspapers like The New York Times and various others. I think there has been real policy work related to gender issues with advocacy work. I try to combine data, empirical work and scholarship with activism. I think activists on the ground should open up and engage in certain depth of work and scholars are not speaking policy but are typically writing within their own fields. So, my call is to bridge the scholarship and policy gap.

Question: Lastly, how was your experience working as an Editor for the blog?

Answer: I have been editing the blog for seven years. I have enjoyed getting to know so many inspiring women. I particularly enjoyed it when people thanked me for my editorial comments.

Go On! Yearbook of International Disaster Law Live Series Webinars

Yearbook of International Disaster Law announced open registration for Live Series Webinars, which will be held on September 15, September 29, and October 13. Within this series of webinars are presentations on relevant issues, such as the protection of persons in disasters, which is explored in the Yearbook’s first two issues, as well as “Covid-19: An International Disaster Law Perspective,” which will be explored in their next issue.  Click here for details.