John Bolton and John Yoo have this op-ed in today’s NY Times vaunting Article II treaties over congressional-executive agreements. While conceding the fact of CEAs in the international economic context, the duo argues that going the CEA route for such agreements as the ICC and a successor to the Kyoto protocol “would pose a serious challenge to American principles of law and democratic governance.”

The piece is significant in itself, drawing a possibly defensible sovereigntist perimeter up against an Administration that will surely be more friendly to internationalist initiatives (defensible insofar as it appeals to the Senate’s institutional prerogatives rather than to politics).

If the Obama Administration is looking for contrary authority, it will have no shortage of ammunition from other scholarly quarters. Those would include none other than John Yoo himself. In this 2000 article in the Michigan Law Review, Yoo had kinder words for CEAs, arguing that for international agreements implicating plenary congressional powers under article 1, section 8, the CEA should stand as the exclusive mechanism of legislative approval.

Reserving areas within Article I, Section 8’s ambit for approval by congressional-executive agreement, rather than by treaty, preserves textual and structural elements of the Constitution as well as promoting the original understanding. We can see this by considering the ramifications of the alternate approach, which would make treaties the exclusive method for making international agreements. First, treaties remain an executive power that excludes the branch most directly accountable to the people, the House of Representatives. Second, unlike statutes, treaties have no defined subject matter, which means that the treatymakers can enter into an international agreement on any matter, regardless of whether the Constitution grants control over it to another branch. Third, most internationalist legal scholars believe that treaties are generally self executing – if their terms are clear, treaties do not require implementing legislation by Congress, but instead are to be automatically enforced by the courts. Congressional-executive agreements, on the other hand, promote democracy by infusing foreign policymaking with House participation. Their use formally guarantees that the same lawmaking process will apply to laws that have the same effect in regulating domestic conduct.

I don’t think the framework supplies a workable divide between treaties and CEAs — it’s too difficult to figure out what’s in Congress’ plenary power, if anything (the President obviously has a hand in international economic matters, for instance). Historical practice is the better guide, practice which (as with any norm channel) is subject to evolutionary change. Human rights agreements might pose the leading edge of an expanded CEA practice (perhaps, to play out Yoo’s line, under Congress’ authority under the Offenses Clause). Particulars aside, with the change of parties in the White House, beware of adjusted constitutional theorizing!

John Pike, of GlobalSecurity.org website, has a provocative op-ed in today’s Washington Post (January 4, 2009, B3) arguing that the evolution of battlefield robots might mean robots as the soldiers that do the killing on future battlefields … For a lot of reasons, I don’t think this is where the evolution of battlefield robots will go, at least in the foreseeable future.  

I’m not, by the way, opposed in absolute principle to robots on the battlefield that might eventually make autonomous firing decisions.  It is a question of what the technology of the future is able to do and not do.  I just don’t think that is really what current robotics efforts are about in the US military - far from finding ways to replace the human shooter with a robot shooter, the effort today is to roboticize everything but the human shooter.  

But who knows what future technology might be able to do, superior to human decision-making ability in the stress of battle … Is it so very hard to imagine a future, and a future technology, in which it was a war crime for the human, rather than the robot, to decide to fire the weapon?  

So now, a challenge to our readers … can you come up with a script scenario for any Star Trek show in which someone is being tried for war crimes for having decided to shoot, rather than letting the machine do it?  If anyone wants to offer something, put it in a paragraph or so in the comments and if we get any, I’ll let our resident OJ TV writer, Kevin, judge them.

According to the ever-reliable Sudan Vision Daily, the Pre-Trial Chamber has already decided to issue the arrest warrant for Bashir:

The entire Sudanese people will not be surprised if the International Criminal Court issued an arrest warrant against the Sudanese President Omer Al-Bashir because the decision of the ICC judges was circulated by the UN chief Ban KI-moon, the US State Department and another international powers.

I’d really like to read the decision.  If you are reading this, Mr. Bellinger, would you mind sending me a copy?

… economics and Hume are the fashion.

(The Red and the Black, volume 2, chapter 53, “The Clergy, Their Forests, Liberty.”)  Special edition for … Eric Posner, Adrian Vermeule, Andrew Guzman, Jack Goldsmith, and Kal Raustiala!  (Utilitarianism has a long cultural, indeed literary, history.)

Comments like this one, made not by some obscure commenter but by David Bernstein, a law professor at George Mason and a member of The Volokh Conspiracy, in response to my Dershowitz post below:

Herein the phoniness of international law.  Humble Law Student has raised several significant questions with Heller’s analysis, including whether it matters under international law, as it surely does, if Hamas is using human shields in such a way as to ensure that Israel’s actions in self-defense will wind up killing civilians. The answer: dead silence. Heller, and the like-minded, are all just like O’Donnell. They think Israel shouldn’t exist, so that anything that Israel does to defend itself is illegitimate. That position at least has the advantage of being forthright, if stupid. Hiding behind international law when you are really just anti-Israel is both stupid and dishonest.

I have been accused of being overly critical of Israel before.  I have been accused of being too pro-Palestinian before.  But I have never — not when I was a student and far more radical than I am now, not when I was a lawyer, not when I was a TV writer, not since I’ve been an academic — been accused of believing that Israel should not exist.  Princeton Wordnet defines “forthright” as “squarely, directly, and without evasion.”  I dare anyone to find anything I have ever written that suggests, much less claims “squarely, directly, and without evasion,” that I am opposed to the existence of Israel.  I will happily resign from the blog if someone can do so.

It is sad that a post about IHL and ICL in which I specifically avoided arguing that any of Israel’s attacks on Gaza were disproportionate — largely because, as I said, I think proportionality arguments are essentially useless — would lead to such vitriol.  Proof positive that intelligent dialogue about Israel issues is nearly impossible.

UPDATE: Professor Bernstein has apologized in the comments for missing my response to Humble Law Student, so I have removed the second half of the original post.  I am leaving the first half up with a new response, for reasons that should be evident.  Nevertheless, I appreciate Professor Bernstein’s apology.

Nan Hunter has posted on her blog the transcript of a phone conversation from April 23, 1971, between Henry Kissinger and the poet Allen Ginsberg.

Ginsberg was trying to set-up a dialogue among Kissinger (and other Nixon officials) and peace activists. He was concerned that Kissinger might not know how to end the Vietnam War and he said he had some suggestions. (Unfortunately, they’re not in the transcript.) The conversation slalomed back-and-forth between the seemingly serious and the weird. I love this bit about the proposed meeting:

G: It would be even more funny to do it on television.

K: What?

G: It would be even more useful if we could do it naked on television.

K: (Laughter )

I will leave that to your imaginations.

Alan Dershowitz published an editorial yesterday in the Wall Street Journal that argues Israel’s attacks on Hamas in Gaza are “perfectly proportionate.”  I have no desire to argue the substance of that point, in part because views on Israel and Palestine are largely impervious to facts or argument (on both sides), but largely because the concept of proportionality is so amorphous and ill-defined as to be essentially useless. (I have explained here, for example, why it is very unlikely that the ICC will ever convict a military commander of the war crime of launching a disproportionate attack.)  That said, I think it is important to address some of Dershowitz’s basic misconceptions concerning the concept of proportionality in international humanitarian law and international criminal law.  If we cannot agree on the framework for analyzing proportionality, it will be impossible to even begin to have a productive conversation about the analysis itself…

I guess what surprises me is that the Vatican ever did have a rule of automatically adhering to international law. But as of yesterday, that rule, along with the rule automatically adopting Italian law as part of its internal legal order, is history.  

The Vatican has [] decided to scrutinise international treaties before deciding whether or not to adhere to them.

It has recently refused to approve a United Nations declaration decriminalising homosexuality.

The wording went too far, Vatican officials said, in placing different sexual orientations on the same level.

Some legal observers believe that the Vatican is simply trying to assert its legal independence in cases involving for example, civil unions, divorce, living wills, or euthanasia.

If Italy were to legalise same sex marriages or euthanasia, for example, the Vatican would now be able to refuse to recognise that. 

What happens to litigation that obviously should be pursued in a foreign country but is prevented from doing so by a forum non conveniens blocking statute? That’s the question presented in a recent Florida state court case of Scotts Co. v. Hacienda Loma Linda.

Here are the basic facts: Scotts sells a product to Hacienda that allegedly destroys thousands of Hacienda’s orchids in Panama. Hacienda sues Scotts in Miami and Scotts successfully dismisses the case on forum non. Panama has a “forum non conveniens blocking statute” that precludes Panamanian courts from asserting jurisdiction over any case that has been brought in Panama as a result of a foreign judgment of forum non conveniens. Hacienda files a complaint in Panama and invokes this blocking statute. The Panamanian court relies on this statute and concludes that it lacks jurisdiction. Hacienda seeks to reinstate the action in Florida arguing that the Panamanian court is not an adequate alternative forum. The Florida court denies the motion. Here is the Florida state appellate court’s reasoning:

In response to Roger’s recent survey, many of you called for more international law discussion here at Opinio Juris.  In that spirit, here’s an interesting nationality question to ponder as you enjoy your New Year’s Day celebrations:

It was already a packed flight from Amsterdam to Boston, but passengers and crew were more than happy to make room for one extra person this morning when a Ugandan woman gave birth to a baby girl.  Two doctors aboard Northwest Airlines flight 59 sprang into action when the call came across the Boeing 757’s public address system for a medical emergency. The physicians found a woman 8-1/2 months pregnant and moaning with severe abdominal pain. She was obviously in labor and the child’s head had already crowned, according to the doctors. As the plane cruised somewhere over Canada, the doctors laid the woman across a row of seats in coach class while a husband and wife from Danvers held up a blanket to create a makeshift delivery room. At about 9 a.m., the woman gave birth to a 6-1/2 pound baby girl she named Sasha. . . . When the flight landed at Logan International Airport at 10:30 a.m., mother and daughter were whisked by ambulance to Massachusetts General Hospital, where they are reported to be doing well.  Customs officials said that Sasha was deemed a Canadian citizen, because she was born over Canadian airspace.

So, did U.S. Customs officials get this right?

From a recent interview with the Wall Street Journal:

“[F]or some reason, I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror.”

The mind reels.

Germany has sued Italy before the ICJ challenging successful Italian lawsuits that have denied Germany’s sovereign immunity arising out of World War II forced labor claims. The ICJ press release is here. Here is Germany’s key argument:

“In recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State. The critical stage of that development was reached by the judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, where [that court] declared that Italy held jurisdiction with regard to a claim . . . brought by a person who during World War II had been deported to Germany to perform forced labour in the armaments industry. After this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts by persons who had also suffered injury as a consequence of the armed conflict.” The Ferrini judgment having been recently confirmed “in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008”, Germany “is concerned that hundreds of additional cases may be brought against it.”

As I have mentioned before, France and the UK have expressed their willingness to support deferring the ICC’s investigation of Bashir if the Sudan prosecutes Ahmed Haroun and Ali Kushayb domestically.  It doesn’t look like the Sudan is going to take them up on their offer:

[Ali Karti, the State Minister at Sudan's Ministry of Foreign Affairs] reiterated the ability of the Sudanese judiciary to deal with Darfur crimes and stressed that there is no evidence implicating two suspects wanted by the ICC including Ahmed Haroun, state minister for humanitarian affairs and militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb.

“All criminal investigations commissions did not press any charges against Haroun… Even Kushayb there were lots of allegations against him but none were confirmed. They mention his name [Kushayb] without asserting it was his him. They [victims] say that all attackers masked… then how did they identify him?” Karti said.

The Sudanese diplomat’s statements on Kushayb contradict those made by Khartoum that it will move forward to prosecute him.

The Sudanese government often promises to prosecute the individuals responsible for the atrocities in Darfur.  What will it take for the international community to realize that they have no intention of actually doing so?

With Samuel Huntington’s passing on December 24th, I thought I’d  post something on his “clash of civilizations” theory.  Then I came across the following couple of posts from Strange Maps that not only relate to Huntington’s interests, but are quite interesting in their own right. They illustrate the ongoing interrelation of geography, culture, and historical boundaries on modern domestic and international relations. Without ratifying the whole idea of a clash between civilizations, they do show the ongoing relevance of the geopolitical (and geocultural) perspective…

The Jordanian Bar Association (JBA) is on a roll.  In addition to participating in the seminar I discussed in my last post, the JBA has also asked the Jordanian government — Jordan is one of three Arab states that have ratified the Rome Statute — to formally request the ICC’s Assembly of States Parties (ASP) remove Moreno-Ocampo from office because of his investigation in Darfur:

“We expect Jordanian government especially Minister of Justice Ayman Awda to respond as the Jordanian government stance led by King Abdallah supporting Sudan”, said Dean of Sudanese Bar Association Dr Fathi Khalil.Khalil appreciated the stand taken by Jordanian Bar Association for their solidarity with Sudan. He added that Jordanian Bar Association made that request, as it is a member in the ICC and their request comes in the framework of Arab lawyers’ solidarity with Sudan.

He pointed out that this appeal is based on solid ground as Ocampo behavior contradicts with his position.

Khalil described the move as courageous and successful and it is one-step of many, which have been made by Arab Lawyers associations.

“Solid ground” is, not surprisingly, something of an overstatement…

The Baron could not produce epigrams; he required at least four sentences of six lines each to be brilliant.

(The Red and the Black, part II, chapter 34, “The Hotel de La Mole.”  Sometimes, alas, I fear this is me.)

I know, fisking pro-Bashir propaganda is kind of a pointless task, but the article made me mad with its shameless inaccuracy.  It’s unfortunate that so many Arab readers — the original article was published in the Al Rai Jordanian Daily — are exposed to this kind of garbage concerning the ICC and Darfur.

Without further ado, the fisking…

Jurists and politicians participating in the seminar held for analyzing legal stance of the International Criminal Court versus Sudan have come out with the conclusion that the ICC step is more of a political rather than a legal one, affirming that hearsay testimony is not enough for issuing legal hearings and pointing out that the Court relied for testimony of fact-finding committee only.

This is inaccurate in two respects.  First, hearsay is admissible at trial (subject to certain restrictions), so it can certainly be used to support the issuance of an arrest warrant.  Second, the OTP did not rely either on hearsay or on the “testimony of fact-finding committee only.”  The OTP did rely on both the UN Commission of Inquiry (UNCOI) or the Sudanese National Commission of Inquiry — to which I assume the article is referring — but the ICC’s Fact Sheet on the Investigation in Darfur makes clear that the OTP also conducted an independent investigation that generated more than 100 formal witness statments through 70 missions to 17 countries, including five missions to the Sudan…