The Economist has a short article discussing EU proposals for financial regulation reform, in the July 4, 2009 issue, “Divided by a Common Market.”  The article is not persuaded that EU regulatory reforms, divided on at least two fundamental matters, will get very far, very soon:

The EU remains riven by two deep divides on the regulation of finance.

The first is an ideological one over the degree of freedom that should be afforded to markets. It pits a weakened and distracted Britain, whose appeal as a financial centre in less troubled times was enhanced by its “light-touch” regulation, against countries such as France and Germany, which feel their long-standing distrust of freewheeling markets has been vindicated. “There is a large body of people who say that the Anglo-Saxon model has failed,” says a person involved in the new regulations. “Now they see the chance to bury it.” Tougher regulations may also peg London back in its rivalry with other European centres such as Frankfurt or Paris.

The second divide is between countries that want large cross-border banks to be overseen by a single European supervisor and those that want them to stay under the control of home regulators. The question of who is in charge cuts to the heart of Europe’s problems. Its banks operate in a largely borderless market but are often closely watched only at home.

Thomas Barnett has pointed out a map in Business Week that is coded for the sovereign bond rating of each country (the map is a click-through from this page).  What Barnett calls the “Old Core” (the U.S.,  Canada, western Europe, etc.) tend to have the highest ratings, the “New Core” (Brazil, Russia, India, China and other rising powers) have the next highest group of ratings and “Gap” states (which are relatively disconnected from the global economy) have the lowest ratings.

It is interesting to flip between the bond rating map, and Foreign Policy’s failed states map.  They track to each other fairly well. Moreover, it also has a decent correlation with this map that charts travel times to major cities. Comparing the transportation map to the bond rating and failed state maps, one sees that, generally speaking, the better a country is connected to world travel, the more stable its government and the better-rated its economy. Don’t ask me which came first, though, the connectivity or the stability…

Next week looks to be a busy one on Capitol Hill. As the Obama Administration Task Force on Detention nears its initial July 21 reporting deadline, both the House Judiciary and Senate Armed Services Committees will be holding hearings on a closely related topic: legal issues surrounding the use of military commissions to try offenses against the law of war. The SASC witness list is star-studded, to include the current Defense Department General Counsel, TJAG of the Navy, and head of the Justice Department’s National Security Division. The House hearing, directed by the Chairman but held under the auspices of the subcommittee on the Constitution, hasn’t yet posted its witness list. The Senate goes Tuesday; the House goes Wednesday. If Michael Jackson coverage permits, should be an interesting few sessions.

That’s the question underlying my new essay, The Rise of International Criminal Law: Intended and Unintended Consequences, in the European Journal of International Law (Vol. 20, No. 2, June 2009).  And I’m curious as to whether anyone else shares my general feeling that the very success, on important metrics, of international criminal law is tending to swallow, as it were, the rest of public international law.  I’ve had striking conversations informally with a surprising number of scholars and practitioners, in many areas of international law and with otherwise heterogeneous views, over the last couple of years who have expressed some surprise and caution at a sense that international criminal law is coming to be a little bit the tail that wags the dog.  Yet it is not something that seems ever to get talked about, and so maybe I’m just wrong about that, but it is the premise underlying this new essay ….

I expect sloppy reporting from the traditional media, but not from the normally excellent FP Passport. So I was surprised to read the following in a post by Michael Wilkerson implying that the ICC has accomplished almost nothing:

But with so much scorn and a suspect arrested for only one of its outstanding warrants — former Congo rebel commander Jean-Pierre Bemba Gombo — the ICC needs help if it is to accomplish its mission of discouraging impunity…. To preserve the ICC’s relevance, the trial of Gombo will need to go very well, and some sort of progress will be needed on the Bashir case. What are the odds either of these will happen?

As the page to which Wilkerson links makes clear — and as anyone even passingly acquainted with the ICC’s work knows — Bemba is one of four suspects in custody; the others are Thomas Lubanga Dyilo, Germain Katanga, and Mathieu Ngudjolo Chui from the DRC. (Bahr Idriss Abu Garda from the Sudan voluntarily appeared in request to a summons and is free until his next hearing.)  And, of course, Lubanga’s trial is already underway, whereas Bemba’s case is still at the pre-trial stage.

Wilkerson also references the Pre-Trial Chamber’s rejection of the genocide charges against Bashir without noting that the Chamber recently granted leave to appeal the Article 58 issue. That was obviously a deliberate omission on Wilkerson’s part — intended to make the OTP look as bad as possible — given that the Reuters article to which Wilkerson links specifically mentions the appeal.

FP Passport should really do better. The ICC has enough problems without having to deal with ones invented by journalists.

P.S. I know this sounds nitpicky, but I think it’s revealing that Wilkerson refers to “Gombo.” The ICC — and everyone else — almost always refers to him as “Bemba” or “Bemba Gombo.” Someone who follows the Court closely enough to credibly criticize it would know that.

Robert Petit, the International Co-Prosecutor, is resigning effective September 1:

In a statement, Robert Petit said he would be stepping down as of 1 September for personal and family reasons.

“It has been the greatest privilege of my career to have the opportunity to bring some justice to the victims of the crimes of the Khmer Rouge,” he said. “I remain convinced that Cambodia’s hopes for a better future lie, in part, on true accountability for crimes.”

Mr. Petit said that the search for his successor will likely wrap up soon.

The Extraordinary Chambers in the Courts of Cambodia (ECCC), set up in 2003 under an agreement between the UN and Cambodia, is tasked with trying senior leaders and those most responsible for serious violations of Cambodian and international law committed during the Khmer Rouge rule.

The tribunal is staffed by a mixture of Cambodian and international employees and judges, and there are two prosecutors: Mr. Petit, who is leaving his post as International Co-Prosecutor, and Chea Leang, who is Cambodian.

Despite Petit’s statement, it seems likely that he is resigning because of his longstanding problems with Chea, who has continually stonewalled Petit’s attempts to consider charging additional suspects and is widely believed to be in the pocket of the Cambodian government:

Accusations gained intensity in the weeks leading up to Tuesday’s hearing. Days before the hearing, the Open Society Justice Initiative lambasted the court for failing to uphold transparency standards, accusing co-prosecutor Chea Leang of lacking political independence after she refused to investigate six Khmer Rouge suspects in addition to the current five. In December, Ms. Chea and co-prosecutor Robert Petit publicly disagreed over whether to add more suspects, with Ms. Chea claiming further investigations could destabilize the country.

I hope the ECCC finds a suitable replacement for Petit.  But it’s clear that the International Co-Prosecutor isn’t the problem.

I don’t know whether one should believe this or not; via Megan McArdle, via Newmajority.com, which links to a news-service I have occasionally read, Avanova, but whose page comes up empty on my browser.  I’m going to ask Eugene Kontorovich what he thinks (delighted to have Eugene guest-blogging with us!).  Is this remotely plausible or urban legend?  So, with all those caveats:

Luxury ocean liners in Russia are offering pirate hunting cruises aboard armed private yachts off the Somali coast.

Wealthy sportsmen pay upwards of $5,000 per day to patrol the most dangerous waters in the world hoping to be attacked by raiders.

The story as it’s written suggests the clients are already engaging Somali pirates with grenade launchers, machine guns and rocket launchers.

An AK-47 assault rifle goes for $8.50 a day, 100 rounds of ammo is $11.50, are they are also protected by a squad of ex-special forces troops.

The yachts travel from Djibouti in Somalia to Mombasa in Kenya, cruising deliberately close to the coast at a speed of just five nautical miles in an attempt to attract the interest of pirates.

Let me follow up on Julian’s post and add that Harold Koh was equally derisive of signing statements during the Bush Administration. Here’s the transcript and video of an exchange between OLC nominee Dawn Johnsen and State Department Legal Adviser Harold Koh at the 2006 annual meeting of the American Constitution Society.

Just a few choice excerpts that will give you a taste of the general attitude about signing statements as expressed by Koh and Johnsen at that event:

Ms. Johnsen: … [T]he Bush administration’s initial argument typically is not the straightforward constitutional one, but instead that we have to twist the meaning of federal statutes beyond their clear meaning to match a very sweeping view of presidential power. So that will be the first part of our discussion talking about a few examples of what I view as this disregard for the rule of law… Let’s start with an issue that has been very much in the news in recent months: presidential signing statements…. Before the Bush administration, quite an obscure, I believe, document.

Ms. Johnsen: I think it would be useful to make this a little more concrete and actually read from a signing statement issued by President Bush, and I want to ask Harold first to comment on this particular one. So when President Bush signed this into law this is how he said he would enforce the McCain Amendment. “In a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and this commander-in-chief and consistent with the constitutional limitations on the judicial power.” That’s rather innocuous sounding I think on the surface, Harold. What’s the problem with that kind of a signing statement or this particular signing statement?

Mr. Koh: It’s like The New Yorker cartoon where the space aliens are coming out and writing a message in the sky, and two earthlings are looking at it, and one says “I’m not sure, but whatever it means, it can’t be good.” (Laughter) … The president has no line-item veto authority, so he can’t use a signing statement as a line-item veto, and … when there is no veto you can’t override it. You can’t override a signing statement…. So I think that at the end of the day I’m not sure what it means. … [T]he main purpose is to avoid predictability. It would lead to a point where there would be an as-applied constitutional challenge down the road, but whatever it means, it can’t be good.

…

Ms. Johnsen: Let me follow up with the argument that I often have heard or sometimes have heard in defense of signing statements along the lines that President Bush has used them. It’s better than a veto. Then, it’s actually more respectful of Congress to put into effect as much of the statute as possible, sign it into law, and just put these few limitations out there in the signing statement better than vetoing the whole thing and sending it back to Congress.

MR. Koh: Well, I was talking to an official of the Ford administration, who was telling me that Gerald Ford in his brief period as president did something like 56 vetoes. And the reason was that there was a lot of pork and he was eliminating the pork, so he would just veto it and send it back. I think that just a more upfront approach is if the president actually disagrees with something, he should veto it.

…

Mr. Koh: We don’t need graffiti on the McCain Amendment. It’s clear. Once it’s there, don’t add anything. If you’re adding anything, you’re trying to modify its effect. Why are you trying to modify its effect?

Apparently, that bastion of freedom and human rights didn’t get the memo that Holmes’ infamous comment in Buck v. Bell — that “three generations of imbeciles are enough” — isn’t exactly viewed as a shining moment in US constitutional jurisprudence:

Rwanda is being urged to drop a draft law which would forcibly sterilise people who are mentally disabled.

US-based campaign group Human Rights Watch said the proposed law was deeply flawed and violated the government’s obligation to uphold human rights.

It also requires people to have an HIV test before getting married.

“Provisions in the current bill that increase stigma, rely on coercion and deny… reproductive rights should be removed,” HRW’s Joe Amon said.

Forced sterilisation is regarded as a crime against humanity by the Rome Statute of the International Criminal Court.

This is, of course, the government that expresses shock and outrage at the ICTR’s unwillingness to transfer cases to it because of fears that defendants will not receive fair trials.  Whatever could have given the Tribunal that idea?

Was I unfair in calling Barack Obama “hypocritical” in issuing his (otherwise sensible and constitutional) signing statements last week?  Hypocrisy is a strong charge.  On the other hand, Obama explicitly denounced the “theory of George Bush that he can make laws as he is going along” by using signing statements and then flatly promised not to use any such statements when in office. See for yourself. 

So maybe hypocrite is not so hyperbolic in this context.  Is there any defense for Obama?  Not really.

The ICC’s case in support of the genocide charge is taking a beating, as this Washington Post article details.  The problem might be Moreno-Ocampo’s erratic leadership, or it could be the ICC as a whole has too many brilliant ambitious lawyers with not nearly enough to do.  So they are quietly undermining Moreno-Ocampo by resigning or by writing articles critical of him.  In any event, it is hard to imagine the amount of damage that the ICC will sustain if it eventually has to withdraw the genocide charges against Sudan. But it could happen.  And then what?

Ordinarily I wouldn’t post the table of contents for a symposium in an international law review, but let me herewith make an exception, for OJ-promotion …  Note that our very own Chris Borgen has a piece on a subject in which he has established himself as a leading expert - self-determination in such cases as Kosovo and South Ossetia.   I’ll let Chris post up the link to SSRN and talk about it, rather than try to summarize it myself.

Overall, it’s an impressive group of authors - well worth checking out; most of the pieces appear to be up at SSRN, and I hope CJIL will put up direct links soon.  I also have a piece in the symposium, on the “parallel” security regimes of UN collective security and the US security guarantee, which I discuss a bit below the fold ….

With the Supreme Court term now complete, I thought it would be useful to give a brief year-end review of the Court’s decisions. The Supreme Court produced no blockbuster cases this year on any subject related to our discipline. It was truly a sleeper year. There were three cases addressing immunity; two cases addressing asylum, one case touching on federal preemption, one on executive power, and one on international trade. All the cases addressed statutory interpretation, and only one involved treaty interpretation. None of the cases will be long remembered, with only Iqbal having potential long-term significance for international practitioners.

Here is a brief synopsis of the relevant eight cases:

Various developments on the resolution-of-Gitmo front to discuss. First a quick note on a recent signing statement.  Then on to rumors of a contemplated executive order on detention issues.

This would otherwise be a non-event, except for the fact that Kosovo’s accession to the IMF and World Bank is a further blow to Serbia’s ongoing case to deny Kosovo legal recognition as an independent state.  Should international economic institutions like the IMF and World Bank wait for the ICJ to rule on Kosovo’s status before taking such a step?  Maybe.  But the IMF and World Bank are controlled by Kosovo’s friends and protectors (the U.S. and the E.U.) and they have no formal obligation to defer to the ICJ’s judgment. And let the international aid money start flowing!

Iraqis are wondering if their legislators should be permitted to hold dual citizenship (see here).  Current law permits multiple nationality but not among those holding “senior positions” in the government.  Some want to clarify the bar to include parliamentarians.  There’s apparently some concern that dual citizenship gives corrupt officials an escape hatch, as in, they have someplace to flee when the prosecutors come knocking.

But that would seem more an issue for extradition regimes than about dual citizenship.  The issue is being debated elsewhere, mostly in countries with longstanding prohibitions on office-holding by dual nationals, often pursuant to express constitutional provisions (among them Australia, Jamaica, Bangladesh, Malawi, Nigeria, and Latvia, as well as in Hong Kong). In contrast to Iraq, several of these regimes are coming under attack from the opposite direction, with mounting pressure to eliminate ineligibility (see examples here, here, and here). The problem is that repealing the restrictions will typically look like a loser issue from the sitting legislator’s perspective.  As one Jamaican editorial put it, “Any overhaul, on the face of it, will require not only legislative action, but approval by the people in a referendum. But a governing party, especially one with a slim majority, is likely to consider a plebiscite politically risky.”

On the merits, ineligibility is starting to look pretty silly.  Let voters decide if they trust a dual citizen with legislative authorities.  Why deprive them of a choice?

After more than a decade of legal wrangling, Chile has finally ratified the Rome Statute.  Chile’s accession means that every country in South America is now a member of the ICC — a significant accomplishment.

Congratulations, Chile!

Most Court-watchers spent the day examining the Ricci case (a.k.a. the New Haven Firefighters’ case), given its racial dimensions and the fact that Judge Sotomayor participated in the Second Circuit opinion that the Court overturned.  I, however, was more interested to see that the Court granted certiorari today in another Sotomayor-related case, Abbott v. Abbott.  This is the Fifth Circuit case I mentioned last week, addressing the same treaty interpretation question that motivated Judge Sotomayor to issue a dissenting opinion in the 2000 Second Circuit decision, Croll v. Croll.  Here’s how the Solicitor General described the question presented by Abbott in its amicus brief recommending cert.:

Whether a ne exeat order, which prohibits either parent from removing a child from the country without the other parent’s consent, confers a “right of custody” within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, thus allowing a parent to seek to have a child who was removed to another country in violation of the ne exeat order returned to his or her country of habitual residence.

The Fifth Circuit in Abbott agreed with the Second Circuit in Croll (as well as with Fourth and Ninth Circuit decisions), reading the Hague Convention to not consider ne exeat orders as conferring custodial rights.  In contrast, Judge Sotomayor, the Eleventh Circuit, and the Executive Branch have all offered a competing reading of the treaty’s obligations, finding that ne exeat orders do convey custodial rights. 

Abbott is thus a case for U.S. international lawyers to follow in the coming term.  In addition to resolving the circuit split, it will be one of the few (perhaps the first?) international family law cases to reach the Court.  More broadly, given the centrality of treaty interpretation to the case itself, I would expect the opinion to opine on what method(s) of treaty interpretation are proper and to what extent the Executive’s interpretation of the treaty deserves deference from the Court.  For my part, I’m also hoping that somewhere in the Court’s opinion, the justices will be kind enough to make clear the centrality of the Vienna Convention on the Law of Treaties’ interpretative rules (Articles 31 and 32), just as Judge Sotomayor did in her own dissent back in 2000.

Events in Honduras occurred while I was in a plane on a long flight, so I do not have enough of a grasp of what the facts are, or appear to be, to offer an opinion as yet.  However, I wanted to note that, whatever they are exactly, they seem to have touched off an interesting, and not inconsequential debate, over what constitutes a “coup d’etat” and what constitutes a military coup.  I have simply not delved sufficiently into the facts to offer an opinion, but I thought it would be, umm, unseemly for us here at OJ not to make note of these events ….  Is it a coup or not?  Why does it matter, and should it?  ….