Archive for
January, 2005

International Legal Personalities

by Julian Ku

I had initially thought I would “liveblog” the Santa Clara University conference I attended last week but the lack of free wireless internet access and the limitations of my typing skills stymied that plan. So instead of simply recapitulating the discussions and presentations, including my own (which will be published in any event), let me instead profile three of the most interesting and famous figures at this conference: Judge Rosalyn Higgins, Professor Louis Henkin, and Professor John Yoo.

Rosalyn Higgins

Judge Rosalyn Higgins, a British lawyer who has served on the ICJ for over a decade, gave the keynote address. Judge Higgins has had an impressive career and the ICJ is lucky to have a dignified and credible member like her on its bench. Still, like many judges, her talk only hinted at the interesting topics that she could have talked about. Her address touched on the recent series of ICJ cases involving U.S. obligations under the Vienna Convention for Consular Relations, and suggested that she believed the decisions did not transform the ICJ into a “court of appeal” overseeing U.S. courts. Yet she also admitted that the ICJ had rejected the U.S. government’s suggestion that non-judicial remedies might satisfy their treaty obligations. She did not believe that requiring a particular type of domestic legal remedy (in this case, a judicial remedy) is a remarkable intervention by an international tribunal into domestic law.

Perhaps I’m being overly imaginative (or paranoid), but I am not sure Judge Higgins thinks the ICJ’s role is as modest as she suggested, Her reference to the ICJ as the “highest international court in the world” may actually reflect a more exalted view of the ICJ’s role than is justified by its very limited jurisdiction and the fact that it has no jurisdiction over any other international tribunal.

Louis Henkin

Other than Judge Higgins, the most famous speaker at this conference was undoubtedly Louis Henkin. Henkin’s influence on the United States international law academy is hard to overstate. His treatise, Foreign Affairs and the U.S. Constitution, is the seminal text on the study of international law as part of the domestic U.S. system. Combined with his service as Chief Reporter of the Restatement (Third) of U.S. Foreign Relations Law, Henkin can claim, without danger of too much contradiction, to be the greatest international law scholar of his generation (the only other possible claimant to this title is Myres McDougal).

On the other hand, Henkin’s views on a number of subjects such as the status of customary international law and the self-execution of treaties have been sharply questioned by recent revisionist scholarship. But none of this detracts from his achievement in setting the agenda for a generation of legal scholarship. Before anyone else thought to do so, Henkin asked all the interesting and important questions for international law scholars. It does not detract from his achievement that I, and a number of others more prominent than myself, think he is wrong in many of his answers.

John Yoo

If Henkin is the most acclaimed scholar of international law of his generation, John Yoo may very well be the most controversial of his. Over the past seven years, Yoo has created an impressive body of scholarship on subjects such as presidential control over the use of military force and the self-execution of treaties. But Yoo himself became controversial last year when a number of memos he wrote while serving in the Office of Legal Counsel of the Justice Department were leaked to the media almost at the same time that the abuses at the Abu Ghraib prison in Iraq were revealed. Although none of Yoo’s memos actually advised that torture was acceptable (this is something that Yoo’s critics often forget), they did take a rather robust view of the President’s Commander in Chief Power and a narrow view of the effect of statutory law and treaties prohibiting torture by U.S. government officials.

As a legal matter, Yoo’s analysis is not only defensible, it may very well be right, as I’ll try to explain later this week when I discuss Marty Lederman’s posts on this subject. In any event, I think the hysteria over Yoo’s memos, which were reflected in some of the angry questions posed by audience members during the conference, is misdirected. Lawyers in Yoo’s position must give a good faith interpretation of the law and I believe he and others did so here. Yoo’s more intelligent critics, like Lederman, have offered very persuasive alternative interpretations of the laws that may also be right. But I just don’t think that a disagreement over the interpretation of laws and statutes can rise to the level of legal malpractice or even criminal action, which some of Yoo’s most severe critics have suggested.

Imagine someone calling for the prosecution or disbarment of Justice Harry Blackmun for writing Roe v. Wade and thereby allowing (in some people’s views) the murder of millions of babies. Such combinations of hysterical outrage and moral righteousness, so easy to dismiss in the abortion context, are not just seen in random audience members. Some well-regarded legal academics like Dean Harold Koh have declared some of the DOJ memos on torture to be the worst legal work he has ever seen. This is not hysterical, but it is troubling given the stature of its source. All of this inhibits the ability of lawyers and policy makers to have useful or intelligent conversation about very difficult and important issues.

In Yoo’s case, hysteria over his work in the government should not obscure his ambitious scholarly agenda or, indeed, what he has already accomplished (not even including the work he and I have done together). He, along with a number of other scholars like Jack Goldsmith, Curtis Bradley and Eric Posner, have sought to challenge a lot of conventional wisdom that has stultified post-Henkin international legal scholarship. One of their most important contributions is to focus their scholarship on developing positive or descriptive models of international law or foreign affairs law rather than making only normative arguments. An outstanding example of this is Posner and Goldsmith’s recent The Limits of International Law.

It should be acceptable for international law scholars to question the growth or use of international law. Our role as scholars does not require us to advocate for or against international law. Yet this statement alone may raise some eyebrows. One of the odd things about international law scholars, and certainly international law scholars of a certain generation, is their strange obsessions with whether one “supports” or “believes” in the existence and promotion of international law. Constitutional law scholars are not expected to always believe in constitutional law, so why should international law scholars?

Coalition Provisional Authority Fails the Accountability Test

by Peggy McGuinness

It was reported today that the Coalition Provisional Authority for Iraq was unable to account for $8.8 billion — yes, that’s BILLION — in assistance money spent in the first year following the US invasion. To put the dollar amounts in perspective, that’s more than twice the annual operating budget for the UN and almost $2 billion more than the annual operating budget of the State Department. And while we don’t yet know the full extent of the money unaccounted for in the UN Iraq oil-for-food investigation, early reports put it at around $1.7 billion. With apologies to the late Sam Rayburn, “a billion here, a billion there, pretty soon you’re talking about real money.” This revelation is not entirely surprising, given the CPA’s reliance on no-bid contracting procedures. But it deserves at least as much scrutiny by Capitol Hill as the investigation of the oil-for-food scandal.

The "Hard-Soft" Power of US Tsunami Aid

by Peggy McGuinness

James Traub published this excellent essay in yesterday’s NYTimes magazine discussing military involvement in humanitarian activities, an issue I addressed in this previous post. His main point is a riposte to Joseph Nye’s theory of “soft power,” the notion that the United States projects it power not simply through the “hard power” of coercive military and economic strength, but also through the export of culture and values. Nye’s taxonomy fails to consider where in the toolbox of American diplomacy to place the aircraft carrier delivering potable water or the US Army officer promoting civil society in Kosovo. Traub also argues that, at the same time we use our “hard power” for “soft purposes,” our power to influence through culture may, in fact, be limited by the nature of the culture we are exporting. (For a couple of examples of cultural exports, see discussions here, here and here about reality televisions programs in Africa.)

Guantanamo Detainee Decision

by Peggy McGuinness

Andreas Paulus has a fair point that Judge Green’s decision can be read as a significant defeat for the government’s core arguments on the legality of the Guantanamo detentions and the government’s own reading of the Rasul case. But there are elements of the decision that may deflate the hopes of lawyers planning on further tort cases on behalf of detainees. Here’s what the government prevailed on:

(1) The part of their motion to dismiss that argued that the Geneva Conventions do not provide a private cause of action, a question which the judge herself noted is also at issue in the Hamdan appeal. The government’s argument was (1) that the Geneva Conventions create no rights in individuals; (2) that even if they did, the GC do not create private rights of action in federal court because they are “non-self-executing”; and (3) even if 1 and 2 are rejected, al Qaeda and the Taliban are not protected by the GC. The judge adopted Judge Robertson’s ruling in Hamdan as to points 1 and 2, but accepted the government’s argument on point 3, but only as to al Qaeda and not the Taliban (i.e., Taliban detainees may assert rights under the GC)

(2) The Alien Tort Claims Act: Judge Green adopted the reasoning of Judge Kollar-Kotelly in her original Rasul decision that the doctrine of sovereign immunity bars the tort claims and that the waiver provisions of the Administrative Procedure Act are inapplicable on the grounds of the military authority exception. (An interesting question is here to what extent the military exception can be asserted as a defense in Iraq for claims arising post-transfer of sovereignty.)

(3) Other claims dismissed included general assertions of claims under the 6th, 8th and 14th Amendments.

For a discussion of the procedural effects of this decision, which Judge Green made in her role as coordinator for several cases originally assigned to other DC district court judges, see this helpful discussion at SCOTUSblog.

U.S. Judge Allows Lawsuit Challenging Guantanamo Tribunals To Continue

by Julian Ku

This Reuters story suggests that a district court judge has held the Guantanamo Bay military tribunals unconstitutional. As usual, Reuters (and other news agencies) are overstating the scope of the decision. Rather, it is more accurate to say that the district court judge has refused to grant all of the U.S. government’s motion to dismiss claims by certain detainees that their detention as enemy combatants in Guantanamo Bay violates the Constitution, federal law, treaties, and customary international law. Moreover, she also ruled in favor of the government on some issues we’ve discussed here dismissing some of plaintiffs claims for constitutional violations, finding broad sovereign immunity for claims under the Alien Tort Statute, and finding that the possible existence of a treaty violation makes their customary international law claims unnecessary. Still, the ruling is a setback for the government. I plan to blog more on this decision later.

How Mexico Can Sue Arizona

by Julian Ku

The Foreign Minister of Mexico, peeved that Arizona voters passed a referendum denying benefits to undocumented aliens, is threatening to sue the U.S. in unspecified international courts. This raises an interesting question: Can Mexico sue the U.S, or Arizona, under international law to stop this law from going into effect? If so, where?

There is no shortage of international law that Mexico might invoke. Off the top of my head, they might invoke the International Covenant on Civil and Political Rights. Or they might make a claim that various provisions of the International Covenant on Economic Cultural and Social Rights has become customary international law. While all of these forms of international law might support a claim, the real obstacle for Secretary Derbez is finding a court with jurisdiction to hear that claim. International law is full of substantive rights without any forum to vindicate them.

What crazy international tribunal would hear Mexico’s claim? The International Court of Justice? The International Criminal Court? Actually, the forum most likely to have jurisdiction is actually the good ol’ Supreme Court of the United States.

As perhaps only federal court junkies may recall, the original jurisdiction of Supreme Court includes actions “in which a State shall be Party”. And as Thomas Lee recently argued in an article in the Columbia Law Review, this provision was intended to permit foreign states to sue the states for treaty violations. Of course, Mexico would have to find a treaty that was self-executing, but that is a question for another day.

Just a little free advice for the government of Mexico from their friends here at Opinio Juris. Any further advice, of course, will require a retainer…

Update: I had to slightly correct my post. The Supreme Court is more likely than any other forum to assert jurisdiction, but I was incorrect in suggesting they were required to.

UN Report Concludes Darfur is Not Genocide

by Julian Ku

A UN commission has concluded that the violence and killings in Darfur do not rise to level of genocide. The report is not yet publicly available. It is unclear what effect this report will have on the battle over whether to refer the Darfur actions to the International Criminal Court. So far, it looks like the U.S. is not taking Jack Goldsmith’s advice to support a referral to the ICC. I tend to agree with Peggy that the problem in Darfur needs action more than more reports from the UN. But I can’t help pointing out that in this case, the U.S. is the actor pushing for action, the U.S. is the one that has concluded genocide is occuring, and the U.N. is the primary obstacle to more aggressive action. This is not always the case, but it certainly appears to be the case here.

Torts over Torture

by Peggy McGuinness

Julian —

What we don’t know — about the full extent of the United States’ abuse and/or torture of detainees and rendition of detainees to third countries — is a lot. For this reason, I have specifically avoided weighing in on some of the broader questions about compliance with the Torture Convention, at least until I have read the government reports on this question. Of those who have followed the available primary reporting more closely, Andrew Sullivan has been a consistent voice of sanity, reason and yes, morality, on the abuse questions. (And he supported the Iraq invasion.) His excellent review of the Schlesinger report and Mark Danner’s book in last Sunday’s NY Times Book Review is a must read for anyone contemplating the political and moral implications of the abuse scandals. (He also has an on-line q and a here.) I also find convincing Marty Lederman’s cogent and compelling analysis from which he concludes, based on what little information is currently available, violations of law have occurred.

With that as background, I have a few specific thoughts in response to your post on lawsuits by former Guantanamo and Abu Ghraib detainees.

1) “Strangely enough,”? It appears to me not at all strange, but rather quite predictable that the United States and certain officials are finding themselves subject to tort suits alleging violations of international law. After all, the government itself has provided mounting evidence – including guilty pleas and convictions of the perpetrators — that, in fact, these violations have occurred. And my guess is that the government will quietly settle at least some of these suits; a sympathetic jury may not be required.

2) Do you think it is at all relevant to any legal or political analysis that the individuals who are alleging abuse “were really innocent?” The Torture Convention defines torture as:



any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The US Torture Statute (18 USC 2340) is similar:

“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

At no place in either the convention or statute does it state that these protections apply only to those who are “really innocent.” That’s the point. Governments are not permitted to torture people on the grounds that they are bad guys or evil-doers. Even the infamous Bybee Memo did not try to make this distinction. Are you arguing, notwithstanding the law, that only “innocent” victims of abuse should be awarded civil damages? Or are you making an implicit political or moral argument in favor of abusing those that are not “really innocent”?

3) In an earlier post discussing the Acree case, you argued that the existence or non-existence of civil remedies for abuse of American POWs is likely to have little effect on how we (or our enemies) conduct ourselves in war. I tend to agree with that. So what is different here that leads you to conclude that the availability of civil remedies for abused detainees will have an “effect on an aggressive war on terrorism?”

Guantanamo Bay: Boon for Plaintiffs’ Lawyers?

by Julian Ku

Strangely enough, the war on terrorism is providing a slight boost for plaintiffs lawyers specializing in tort suits alleging violations of international law. This week, the UK released four men who had previously been detained at Guantanamo Bay. Lawyers for the detainees are threatening to sue. A number of such lawsuits have already been filed over Abu Ghraib and the alleged rendition of suspects to third countries.

I’m not a supporter of these sorts of lawsuits due to their effect on an aggressive war on terrorism. But I do recognize that if detainees and suspected terrorists are willing to subject themselves to the discovery process of the U.S. civil litigation system, this does increase the likelihood that those individuals were really innocent. Certainly, these four individuals, if their claims of torture are true, have a great case under the Alien Tort Statute against the U.S. government or U.S. officials (although finding a sympathetic jury might be somewhat difficult).

International Law Conferences, Coast to Coast

by Julian Ku

This seems to be a big day for international law conferences. Not only are bright lights in our profession gathering at Vanderbilt this weekend, but a fairly impressive conference on International Law in the United States Legal System: Observance, Application, & Enforcement, will be taking place at the Santa Clara University School of Law today as well. And I’m not just saying that because I will be one of those speaking….

Seriously, anytime folks like Judge Rosalyn Higgins of the ICJ, Louis Henkin, John Yoo, and Beth Stephens gather, it is worth listening to what they have to say. I plan to post from the conference throughout the day.

Commemorating the Holocaust

by Peggy McGuinness

As we solemnly commemorate the 60th anniversary of the liberation of Auschwitz, it is worth noting that earlier this week the United Nations General Assembly — for the first time in the history of that organization — held a special session in remembrance of the Holocaust. For an organization that three decades ago passed a resolution equating Zionism with racism, this is progress. But only slight. UN Watch published this editorial on what the UN can do to address anti-semitism. And in his remarks at the commemoration, Elie Wiesel noted the failure of the international community to actually live up to the promise of “never again”:

“The Jewish witness that I am speaks of my people’s suffering as a

warning….He sounds the alarm to prevent these tragedies from being done to others. And yes, I am convinced if the world had listened to those of us who tried to speak, we may have prevented Darfur, Cambodia, Bosnia and, naturally, Rwanda.”

As Robert Kennedy often said, “We can do better.”

Self-Interest and Compliance

by Chris Borgen

Julian’s remark that Australia withdrawing from the compulsory jurisdiction of the ICJ is an example that the U.S. is not the only state that acts in a self-interested manner begs the question that is really interesting: why do states that act out of self-interest still choose to comply with the decisions of international tribunals at all?

Theories of compliance can fill a bookshelf, and debates on the topic will not soon end, but my answer here will be a brief gut-reaction. (By the way, an excellent introduction to this field of scholarship is William Bradford’s annotated bibliography on international law and compliance.) As to why states comply in the face of self-interest, my best guess is that there are at least two different compliance mechanisms that operate in countries that have separate and independent executives and judiciaries. (And I note that I do think the domestic structures of states affect their proclivity to comply to international law, but I’ll leave that for another post.)

The first method of compliance concerns executive decision-making. Here the tendency, as in the case of Australia, is to weigh the costs of non-compliance versus the costs of compliance. Not submitting to an ICJ ruling on East Timor is likely to lead to few consequences; taking part in the case and losing may lead to significant embarrassment in an area that is especially sensitive. Thus, the executive decides not to comply. By contrast, take the United States’ decision to comply with the WTO ruling that the U.S. tax code had unfair provisions concerning the tax status of foreign subsidiaries of U.S. companies. The President (and Congress) either had to seek changes to the tax code or face sanctions through the WTO system. The President (and Congress) chose to change the tax code. The cost of non-compliance—trade sanctions with potentially significant economic effects—outweighed the cost of compliance—some companies being upset.

These are the “hard cases” when it comes to compliance with international law because the mode of reasoning and decision-making is not primarily legal, but political (or diplomatic). In this form of decision making, the question of compliance is driven by an analysis of power: which is more daunting– the cost if I do not comply or if I do comply? To survive such a query, international legal mechanisms need to exhibit credible means of enforcement (trade sanctions, diplomatic ostracization, etc).

But this is not the whole story on compliance. Another mechanism driving compliance is the effect of decision-making by national judiciaries. Best set out in Harold Koh’s version of Transnational Legal Process, this argues that the process of adjudicating and interpreting international norms in domestic courts and other domestic fora leads to an internalization of those norms in the domestic legal and political culture of a state. Of particualr interest here, Anne-Marie Slaughter has analyzed how domestic and international judiciaries interact. In a recent paper co-authored with Larry Helfer, Slaughter and Helfer showed how the interaction of domestic and international tribunals can lead to more effective “supranational” tribunals (tribunals such as the European Court of Human Rights that allow litigation between a states and indivduals).

In these cases, the decision-makers, usually judges, apply a more legalistic mode of reasoning. Whether they choose, for example, to write decisions that comply with international obligations is based not so much on the effective threat of sanction but on the internalization of those norms into the judiciary itself (of course, internalization of such norms by the executive would also assist compliance).

So, why is it that we see compliance by states that we know tend to act out of self-interest? Maybe because sometimes they view it in their self-interest to comply and sometimes because their decision-makers have been acculturated to believe it is the normatively “right” thing to do. And, I am sure there are many other reasons states may choose to comply or not to comply. I set these out, though, as two independent mechanisms promoting compliance.

The International Court of Justice and the Australian Open?

by Julian Ku

Australian television viewers watching Alicia Molik defeat Venus Williams on at the Australian Open were probably caught by surprise by TV commercials denouncing Australia’s government, among other things, withdrawing from the compulsory jurisdiction of the ICJ. Australia withdrew from its acceptance of compulsory jurisdiction in 2002 to avoid allowing East Timor to start litigation in the ICJ over undersea oil and mining rights. An optometrist named Ian Melrose is leading the Timor Sea Justice Compaign and is pledging to continue to dog the government on this issue.

What’s the lesson from all of this? One might be that even nice, international law-abiding countries like Australia (as opposed to not very nice ones like the U.S., at least in the eyes of many international lawyers) are not willing to have international tribunals assert jurisdiction when it comes to things they really care about. France, for instance, withdrew its acceptance once New Zealand tried to use the ICJ to block its nuclear test plans.

All of this self-interested state behavior may or may not be a good thing. But it is hardly behavior unique to the United States.

Resources for International Legal Research

by Chris Borgen

For those of you who are interested in doing primary source research in international law, a great (relatively) new online resource is the Electronic Information System in International Law or “EISIL”. A project of the American Society of International Law, EISIL acts as a central clearinghouse of key treaties across a broad spectrum of topics in public and private international law. (Truth in advertising disclaimer: I had been involved with beta-testing an early version of EISIL when I was Director of Research and Outreach at the ASIL.)

According to the EISIL website:

ASIL’s goal is to ensure, through EISIL, that web searchers can easily locate the highest quality primary materials, authoritative web sites and helpful research guides to international law on the Internet. To this end, EISIL has been designed as an open database of authenticated primary and other materials across the breadth of international law, which until now have been scattered in libraries, archives and specialized web sites.



EISIL’s collection covers the following topics:

General International Law

States & Groups of States

International Organizations

Inidviduals and Groups

International Air, Space & Water

International Environmental Law

International Economic Law

International Human Rights

International Criminal Law

Communications & Transport

Use of Force

International Dispute Settlement

Private International Law

This leads me to a more general concern about international legal pedagogy: that although U.S. law students may take a doctrinal course in international law, at the end of their three years of law school they still have relatively little idea how to actually research this stuff. Consider if we taught Constitutional Law, but students didn’t know how to find Supreme Court cases or Congressional statutes.

In addressing this concern, resources such as EISIL and the ASIL’s guide to Electronic Resources in International Law, as well as the other research guides that are out there (such as George Washington International Law Review’s Guide to International Legal Research) , are more important than ever.

Vanderbilt International Law Roundtable Jan. 28-29

by Peggy McGuinness

Larry Helfer and Allison Danner are hosting an International Law Roundtable this weekend, January 28-29, at Vanderbilt Law School in Nashville. Here’s the schedule:

Friday January 28, 2005

8:30-9:40 am Paper author: David Luban (Georgetown)

Paper title: Liberalism and the Unpleasant Question of Torture

Commentator: David Sloss (St. Louis)

9: 45-10:55 am Paper author: Rosa Brooks (Virginia)

Paper title: Failed States, or the State as Failure?

Commentator: Allison Danner

11:15-12:25 pm Paper author: Judith Kelley (Duke)

Paper title: The Role of Material and Non-Material Factors in State Behavior: Article 98 Agreements as a Quasi-Experiment

Commentator: Madeline Morris (Duke)

1:30-2:40 pm Paper author: William Aceves (Cal Western)

Paper title: Predicting Chaos? Strategic Planning in International Human Rights

Commentator: Greg Fox (Wayne State)

3:00-4:10 pm Paper author: Leila Sadat (Washington University)

Paper title: Exile, Amnesty and International Law

Commentator: David Wippman (Cornell)

Saturday January 29, 2004

8:30-9:40 am Paper author: Beth Simmons (Harvard)

Paper title: Theorizing Treaty Commitments

Commentator: Larry Helfer (Vanderbilt)

9: 45-10:55 am Paper author: Allison Danner (Vanderbilt)

Paper title: Prosecuting War and Terrorism: Lessons from the Tokyo Tribunal

Commentator: Bill Bradford (Indiana)

11:15-12:25 pm Paper author: Laura Dickinson (Connecticut)

Paper title: Privatizing the International: International Law and the Problem of Accountability in an Era of Governmental Contracts

Commentator: Mark Drumbl (Washington & Lee)


Goldsmith, ICC and Darfur

by Peggy McGuinness

Julian noted Jack Goldsmith’s op ed in yesterday’s Washington Post arguing that the US should support a Security Council referral of the Darfur genocide to the ICC, a position which Human Rights Watch and others support. I admire Goldsmith’s attempt to bridge the gap between the ICC supporters and opponents, but I have a slightly different take on what US policy toward the Darfur problem should be. He is right that there is not much left of “legitimizing” or “de-legitimizing” the ICC at this point; supporters think it is legitimate, opponents think it is not. What can be legitimated, however, are real efforts at addressing the worsening situation in Darfur, of which prosecution is but one element. And therein lies one of the other, perhaps more subtle and therefore less discussed, grounds on which the US has opposed the ICC – i.e., that it injects outside prosecutions into armed conflicts that are not yet ripe for resolution, and thus poses the danger of limiting the range of solutions. I think Goldsmith ignores the strength of the argument and the danger that more harm could be done to the value of international humanitarian law by throwing in a referral to the court as a way to garner support for sanctions against Khartoum.

Goldsmith says that “even though criminal courts have done little to bring reconciliation to Rwanda or the former Yugoslavia,” or even “deter future crimes,” it is nevertheless “possible that the concrete threat of an ICC prosecution could temper the killings in Darfur without adversely affecting the recent peace deal…” While he seems to recognize that this is a pretty shaky hypothesis, he nonetheless supports referring the Darfur case as a more “effective policy.” I’m not sure I agree. After all, there is no evidence that the existence of the ad hoc tribunal for former Yugoslavia did much to temper Milosevic’s atrocities in Srebrenica in 1995 or Kosovo in 1998-1999. In fact, there is something to the argument that the continuing violations only underscored the marginalization and “unreality” of international humanitarian law in the context of ongoing conflict. Agreeing to prosecutions is often a way of states to defer – or fail to act on – their actual legal obligations under the Genocide Convention. International lawyers should not let them off the hook so easily.

At the end, my difference with Goldsmith may be about timing and sequencing. And I may be underestimating the value of the ICC chip in diplomacy with Europe. But to me, the better policy for the US would be to support and lead a real international coalition to stop the genocide in its tracks — serious sanctions, serious commitment to military intervention — and promote a process toward political reconciliation. Part of that process may include a later agreement to prosecute perpetrators, or it may include some other approach to truth and reconciliation. But let’s stop the killing first.

Tsunami Aid and International Law

by Peggy McGuinness

Criticism of the humanitarian response to the tsunami in South Asia has shifted from early accusations of inadequate relief flows to concerns that donor nations, rebel groups, and affected governments are playing politics with relief efforts. Reports that the US is (and arguments that it should be) using its relief effort to prosecute the war on terror can be found here and here. At least one Islamic party in Indonesia has also been accused of making politics out of altruism. And the Indonesian government has faced steady criticism (here, here and here) of its efforts to control the activities of foreign and aid workers, journalists and international NGOs in Banda Aceh and to limit the presence there of US and other foreign troops who provided crucial relief in the first days after the disaster. Earlier today, the UN called on the Indonesian military to turn over relief operations in Aceh to civilian agencies.

In Sri Lanka, Human Rights Watch reports that children orphaned by the tsunami may now be facing forced conscription into the LTTE (Tamil Tigers), whose 2002 ceasefire with the Sri Lankan government appeared to be weakening in the weeks before the tsunami hit. And recent reports that American-based Christian aid groups are preaching the gospel while delivering assistance have renewed concerns about the appropriate role of religion in humanitarian operations.

None of this is new or surprising. For years those in the humanitarian aid community have struggled with this central dilemma of international aid work: what should we do when the altruistic goal of helping people clashes with other norms of international law? For example, what do you do if a repressive host government limits or places conditions on access to the people and areas affected by a disaster? Is there a danger that aid and assistance delivered by military personnel rather than civilians will be seen as non-neutral, or a part of a government’s war effort? What if you have reason to believe that your aid will go only to those civilians who support the government, and not to villages thought to be supportive of the rebel groups? Or that your assistance will go to rebel groups who will use it to fight the war? Or that it is conditioned on affiliation of one or another religious group?

Last week, ASIL published this useful primer on the rules governing disaster assistance written by David Fidler. He notes that what law exists is not terribly helpful:

In 2000, the International Federation of the Red Cross and Red Crescent Societies (International Federation) argued that, despite the existence of some treaty law relating to disaster relief:

At the core is a yawning gap. There is no definite, broadly accepted source of international law which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance. No systematic attempt has been made to pull together the disparate threads of existing law to formalize customary law or to expand and develop the law in new ways. . . . There are no universal rules that facilitate secure, effective international assistance, and many relief efforts have been hampered as a result.

While the scientific community has responded quickly to develop better detection methods and information sharing to prepare for future tsunamis, the aid community is only just starting to ask the questions. I will be following this issue over the coming weeks and months.

Ku and Yoo on the Alien Tort Statute

by Julian Ku

In the department of self-promotion, I thought I would note that John Yoo and I have posted our forthcoming article from the Supreme Court Review entitled, “Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute”.

In this article, John and I consider the U.S. Supreme Court’s recent decision interpreting the ATS to permit federal courts to continue to recognize causes of action under international law by alien plaintiffs. Rather than reinvent the formalist wheel by plumbing more of the textual, structural, or historical questions about the ATS, we take a functional approach and consider whether the Court’s interpretation of the ATS, which relies heavily on the federal courts, is the best way to achieve the purpose behind the ATS. We conclude that, from a functional perspective, the Executive Branch is best positioned to determine how and whether to adopt rules of customary international law on behalf of the U.S. We propose that treating customary international law as state common law, subject to federal preemption by the President, is the best way to maintain a judicial role in the development of customary international law while allowing the institution with the most expertise over foreign affairs, the Executive, to maintain control over national policy.

International Law Colloquia

by Peggy McGuinness

We plan to publicize important academic colloquia on international law as we learn about them. To get us started, I am including a link to the Northwestern Law School’s International Law Colloquium for Spring 2005. Thanks to Ken Abbot and John McGinnis for the information. A permanent list of upcoming symposia and events will be added to the right side of the blog. So keep us posted about future events.

Religion and Human Rights

by Chris Borgen

Mirror of Justice has an interesting post on an essay in the Human Rights Watch’s 2005 World Report on the “growing conflicts between religious communities and the human rights movement.” The HRW essay on religion and human rights can be found here.

Following is an excerpt (footnotes omitted) from the Preface of the Human Rights Watch essay entitled “Religion and the Human Rights Movement”:

“Fifty years after its proclamation,” writes Michael Ignatieff, “the Universal Declaration of Human Rights has become the sacred text of what Elie Wiesel has called a ‘worldwide secular religion.'” The growth of the human rights movement has given it the confidence to take on controversial issues and extend the promise of the Universal Declaration on Human Rights (UDHR) in areas that it had previously neglected.



This “new frontier,” however, is colliding with the “return of the religious” in many societies, with what French political scientist Gilles Kepel has called “God’s Revenge,” featuring the reassertion of more dogmatic or conservative forms of beliefs inside and outside of mainstream religious denominations.

While it would be inappropriate for the human rights community to advocate for or against any system of religious belief or ideology and wrong to judge or interpret the principles of any religion or faith, it would be equally mistaken for the human rights groups to turn away from human rights violations or appeals for discrimination made in the name of religious principle or law.

Defining how to engage with religious communities thus has become one of the major challenges for the human rights movement. To paraphrase Ignatieff, human rights cannot truly go global unless it goes deeply local, unless it addresses plural philosophies and beliefs that sometimes collide with or appear to resist its appeal to universal norms. If international human rights standards have a claim to universality their relevance must be demonstrated in all contexts, and especially where religion determines state behavior.

This essay argues that the human rights movement needs to be able to provide clearer answers to the hard questions presented by the demands of believers and by religious organizations seeking direct political influence.


Blog of Interest: The TransAtlantic Assembly

by Chris Borgen

Another blog you might want to check out is The TransAtlantic Assembly, a blog hosted by U.S. and European lawyers and academics on issues of international law, transnational law, and EU law. Recent posts have considered EU enlargement, the torture memos in the U.S., and a dispute over public and private morality and EU regulation. Highly recommended.

WTO Watch

by Julian Ku

I rashly promised to blog more about the WTO’s recent report by a panel of “wise men” recommending reforms for the trade organization before I realized just how long blogging that whole report would take. Let me instead point you to this typically incisive summary ($) by The Economist and this op-ed by one of the “wise men”, superstar economist Jagdish Bhagwati. The WTO panel’s main institutional reform proposal is to loosen the “consensus” norm that hampers the organization’s decisionmaking. Right now, each country can effectively veto new WTO decisions and with 148 members. It’s amazing they get anything done.

Moreover, for an international organization that many see as too powerful, it is run on a fairly shoestring budget. According to Bhagwati, the WTO’s annual budget of $100 million means the organization cannot even fund its own studies of the effect of its trade rules. (As a crude point of comparison, the UN’s budget for 2004-2005 will exceed $3 billion).

As the WTO considers how to reform itself, the race is on to be the new WTO director general, who will be chosen sometime in the next four months. According to some news reports, Pascal Lamy of France, until very recently the European Union’s trade commissioner, is the leading candidate to replace current WTO chief Supachai Panitchpakdi of Thailand. Other candidates who will apparently appear before a special session of the WTO’s general council include Luiz-Felipe de Seixas Correa of Brazil, Jayen Cuttaree of Mauritius and Carlos Perez del Castillo of Uruguay. Something to keep an eye in coming months.

Goldsmith Comes Out for an ICC referral

by Julian Ku

Harvard law prof and former Bush Administration chief of the Office of Legal Counsel Jack Goldsmith has a clever op-ed in the Washington Post today recommending that the U.S. support a Security Council referral of the Darfur atrocities to the ICC. Why clever? Because, as Goldsmith explains, the U.S. can support a referral to the ICC here because it would occur through the Security Council, which is what the U.S. wants anyway. And the ICC and its supporters can get an important case to demonstrate their effectiveness with the support of the U.S. It’s a win-win! It will be interesting to see whether this very reasonable analysis proves convincing to either side of the ICC divide.

Asia and International Law

by Julian Ku

For public international law types, East Asia is a relatively barren place. There are no regional international tribunals and barely any regional international organizations of any importance. It is interesting to compare East Asia to, say, the Andean Community in Latin America, or the African Union. There is simply no suggestion or hint of any aspirations toward creating such a regional institutional framework among the countries of East Asia despite their cultural ties and relative wealth. There is no E.U. brewing in East Asia.

This is why Francis Fukuyama’s latest essay in Foreign Affairs ($) is so interesting. Perhaps oddly for a card-carrying neoconservative, he is calling for the U.S. to, among other things, push for the creation of some sort of multilateral organization for East Asia. Not that this would solve everything and of course this would not be an Asian Union of any sort, but Fukuyama thinks such an organization could usefully deflect coming conflicts over North Korea and Taiwan. Maybe, maybe not, but if Fukuyama’s advice is taken, public international lawyers will have a whole new set of institutions to build in the near future.

Blogs on EU Law and Politics

by Chris Borgen

For those interested in following the law and politics of the European Union, two blogs of note: Duke Law School Professor Francesca Bignami’s EU Law Web Log is a great place to keep up on Commission decisions, European Court of Justice judgments and other EU happenings. Also, as LawPundit pointed out, Swedish EU Commissioner Margot Wallstrom has started her own blog detailing her experiences as a Commissioner.

As we come across other blogs and resources of interest, we’ll pass them on to you…

More on Breyer v. Scalia

by Julian Ku

Following up on our posts here, here, and here on the Breyer-Scalia discussion on foreign law and constitutional interpretation, Seth Tillman, a clerk on the Third Circuit Court of Appeals who has published widely on a variety of topics (see here), points out that Breyer may even have offered a foreign policy justification for citing foreign law. He writes,

I am surprised that no one picked up on this comment by Breyer:

BREYER: I said, “If here I have a human being called a judge in a different country dealing with a similar problem, why don’t I read what he says if it’s similar enough? Maybe I’ll learn something.” To which the congressman said, “Fine. Read it. Just don’t cite it.” (Laughter.) I thought, “All right.”

Look, let me be a little bit more frank, that in some of these countries there are institutions, courts that are trying to make their way in societies that didn’t used to be democratic, and they are trying to protect human rights, they are trying to protect democracy. They’re having a document called a constitution, and they want to be independent judges. And for years people all over the world have cited the Supreme Court, why don’t we cite them occasionally? They will then go to some of their legislators and others and say, “See, the Supreme Court of the United States cites us.” That might give them a leg up, even if we just say it’s an interesting example. So, you see, it shows we read their opinions. That’s important. Then he says, “Well, write them a letter.” (Laughter.) I thought I wasn’t making much headway. He had a point. And the point is the point that Justice Scalia has made. How do we know we can keep this under control? How do we know we cite both side? How do we know we looked for everything? Well, I’d say that kind of a problem arises with any sort of citation. A judge can do what he’s supposed to do, or not. And we hope they do what they’re supposed to do. Would I try to refer to both sides? Of course I would.” (emphasis Tillman’s)



Was he [Breyer] advocating a foreign policy for the Supreme Court? What did he mean by a leg up? A leg up on whom? Do we get to debate which nations should or should not get noticed by the Supreme Court?




Tillman adds:



Personally, I was not so much astounded by Associate Justice Breyer’s statement — as the lack of any response by his colleague Associate Justice Scalia, the moderator — Professor Anderson, or any one in the audience. I nearly fell out of my seat. You can write that up too. As I indicate below — I am not one who is in principle against citing foreign law or authority, even beyond English law (the step-child of Justice Scalia’s jurisprudence).


Nixon-Era Antiterrorism Panel Documents

by Chris Borgen

From the “The More Things Change….” Dept: CNN has picked up a story from AP about the recently declassified documents of a Nixon and Ford-era Cabinet Committee to Combat Terrorism. The Committee, which included Henry Kissinger and Secretary of State William Rogers, and included the input of Rudolf Giuliani, who was at the time an Associate Deputy Attorney General in the Justice Department. According to CNN and the AP, the Committee was concerned about threats that included dirty bombs (“‘This is a real threat, not science fiction,’ National Security Council staffer Richard T. Kennedy wrote his boss, Kissinger, in November 1972.) and threats to U.S. airliners.

Giuliani’s testimony, as well as that of others, concerned the need to relax legal and bureaucratic restrictions on intelligence gathering. Concerning airline security, one White House memo noted that the Committee was generating good ideas but if the airlines were asked to absorb the cost, they would scream “bloody murder.” A subsequent memo from the International Air Transport Association stated that protection from terrorism was the responsibility of the “host government” not the individual airlines.

On the international front, Secretary of State Kissinger told President Ford in early 1975 that the mood in the UN General Assembly was such that there could be no useful initiatives on terrorism. It is interesting to note that since that time the majority of the “Terrorism Conventions” were ratified, providing the “prosecute-or-extradite” regime which is the legal backbone for international antiterrorist efforts on acts ranging from hijacking and piracy to (most recently) the financing of terrorist activities and organization. So perhaps things do change, after all.

September 11 Civil Suit Against Saudi Arabia Dismissed

by Julian Ku

Although this judgment was released a few days ago, it is still worth noting that a federal district court in New York this week issued a ruling in a mammoth civil suit by family members of September 11 victims against various entities for the attacks. The most important defendant to be dismissed on the grounds of sovereign immunity are various elements of the government of Saudi Arabia, which is alleged to have helped finance the attacks. The legal significance of this decision is likely to be its important interpretations of the Foreign Sovereign Immunities Act. I thought I would just note that it also casually endorsed the somewhat controversial “aiding and abetting” theory of liability for violations of international law that is at the heart of many Alien Tort Statute lawsuits against corporations. The decision will of course be appealed. (Thanks to Roger Alford for the heads up on this case).

Where John Norton Moore’s Column Went Wrong

by Julian Ku

Just to prove that I am willing to criticize rightward as well as left, my target du jour is Professor John Norton Moore of the University of Virginia Law School, who published a blistering column in Slate yesterday slamming the D.C. Circuit for dismissing a lawsuit by U.S. soldiers who had suffered mistreatment and abuse in Iraq as prisoners of war during the Gulf War. Moore is one of the giants in the IL academic world and criticizing him is another good way to ensure I’ll never get a job at Virginia (I torpedoed my already minuscule chances at a job at Yale the other day here ). Still, Professor Moore deserves to be tweaked for this piece, which is not exactly a model column for those looking for a sober, credible analysis by a well-respected professor of international law.

Moore argues that the U.S. government is trying to block his clients from collecting on the judgment they won against the Iraqi government for abuse suffered as POWs in the first Gulf War in order to avoid embarrassment over the Abu Ghraib prison abuse scandal.

As insightful members of Slate’s Fray point out, in making this charge, Moore points to no particular evidence and somehow neglects to mention that: (1) his clients aren’t asking for chump change, they want $959 MILLION; and (2) the Court decision dismissing the lawsuit is based not on deference to the Executive Branch’s statement that the lawsuit interferes with foreign policy but is actually based on the application of binding precedent in the DC Circuit. See Acree v. Republic of Iraq, 370 U.S. 41 (D.C. Cir. 2004). Moore’s characterization of the DC Circuit’s analysis is over the top:

Even the infamous Korematsu decision in World War II, legalizing the shameful incarceration of Japanese Americans, was not reached by simply ignoring the law and pleadings in its zealous support for a wartime executive branch—as did the Court of Appeals here.

Let me gently suggest that the analogy to Korematsu doesn’t quite work here. In Korematsu, the Supreme Court (wrongly in my view) deferred to the combined will of the President and Congress to intern Japanese Americans. Key to the Court’s decision was its judgment that it could not second-guess the President’s military judgment about the supposed (and turns out non-existent) danger of letting Japanese Americans remain on the West Coast. Korematsu is widely regarded as wrongly decided and one of the biggest mistakes ever made by the Supreme Court. I am going to go out on a limb and guess that this case won’t reach those dubious heights.

Here, the D.C. Circuit makes some noises about the importance of the case for foreign policy, but its decision is wholly based on its reading of two federal statutes, and of previous cases interpreting those statutes, and it does not give any deference at all (nor should it) to the executive branch’s reading of those statutes. The President’s judgment about the foreign policy interests here is essentially irrelevant. And more to the point, I just don’t see a decision interpreting prior statutes and precedent to dismiss a civil lawsuit is quite the same as a decision upholding the evacuation and internment of 100,000 mostly U.S. citizens in the face of blatant evidence of racial discrimination. Maybe I’m missing something.

It is possible that Moore is right about the law, but he is wildly overstating the case when he writes that “Whether or not the [Supreme] court agrees to hear this case could well seal the fate of American GIs held as POWs in future wars.” He adds that:

If the Court of Appeals decision stands in the Acree case, the consequences will be catastrophic. Future tyrants will hear the message, like a fire bell in the night, that the United States has little concern for its own POWs. Morale will decline in our armed forces as the reality sinks in that our government has sided with their torturers over them. A core enforcement mechanism of the POW convention, as well as our reliability as a treaty partner, will be undermined by our remarkable decision to “absolve” a torturing state in violation of the convention.

This is just wacky. POWs deserve as much protection as the US government can provide them up to and including dangerous and risky rescue missions, and probably even more than that. But threat of a lawsuit against sovereigns cannot possibly be a “core mechanism”, especially because the possibility of such lawsuits against sovereigns has existed as part of U.S. law for exactly 8 years (whereas the Geneva Conventions have been around for decades). Rather, the traditional enforcement mechanism has been reciprocity: we promise not to abuse your soldiers if you promise not to abuse ours (and the converse: if you abuse our soldiers, its open season on yours). Or, perhaps less grimly, if you abuse our soldiers, we want, as part of the peace deal, that you turn over all people responsible for those actions and we’ll put them on trial in front of our military commissions, put them in jail or execute them

Moore is no doubt on the right side here. His 17 POW clients deserve some compensation (although $959 million is a bit much) for their injuries and justice for the crimes committed against them. But sometimes, overzealous representation of your clients can backfire and Moore’s misleading polemic veers dangerously close to doing so.

Posner v. Hathaway on the Value of International Law

by Peggy McGuinness

This week the Legal Affairs Debate Club hosted an interesting discussion between Eric Posner and Oona Hathaway on the value of international law. The central issue explored: If international courts and tribunals have been such a failure, why do states keep creating and joining them?

International Criminal Court Watch

by Julian Ku

I’m no fan of the ICC, but it is still worthwhile to keep an eye on what it is up to. Thus far, the ICC is fairly dormant, although they do have a few referrals arising out of the various conflicts in Africa. The ICC announced yesterday the assignment of this case from the Central African Republic to a pre-trial chamber. It will be interesting to follow the ICC process in this case and its other two cases to see how it develops. How the ICC handles its existing docket will make a difference in whether big military powers like the U.S., Russia, and China ever join.

State Sovereignty and International Relations Theory

by Julian Ku

Chris’s colleague Timothy Zick has posted an article ,”Are The States Sovereign?” (January 2005). Washington University Law Quarterly, Vol. 83, No. 1, May 2005. The article analyzes the sovereignty of the states of the Union through the lens of international relations theory. This certainly sounds like an interesting approach to a devilishly complicated problem. Although IR theory is not usually described as illuminating or clarifying, the law governing the sovereignty of the states of the Union may be the one area that IR theory can help. It is likely that the Founders saw the states of the Union as sovereigns governed by international law to some degree, as Thomas Lee argued here. I look forward to reading Professor Zick’s article in full.

Breyer v. Scalia: It’s Scalia in a TKO

by Julian Ku

Like Kenneth Anderson, it’s taken a while for me to digest the Breyer-Scalia “conversation” on foreign law and constitutional interpretation from last week. As I hinted at earlier, I was disappointed with Breyer’s comments because they simply offered no coherent rationale for why he feels it necessary or useful to cite foreign law when interpreting the Constitution. I’m sorry, Peggy, but the fact that law may or may not be the product of a “messy conversation” is simply not good enough. Law, especially constitutional law, may in fact be the product of a messy conversation but it simply can’t be true that all materials, ranging from Gilbert and Sullivan to the Federalist Papers, have equal weight in this conversation. Scalia has a theory as to why the Fed Papers are useful, and Gilbert and Sullivan is not. Breyer doesn’t have one. The best he can come up with is that if “… lawyers are interested in this, the judges are interested in it, that they’ll refer to it, that they’ll read it, that they’ll use it as food for thought, I think is fine.”

Breyer might have distinguished between international law and foreign law and suggested reasons why the constitution should conform as much as possible to international law. But he did not. He might have suggested that, because many postwar constitutions are modeled (in part) on the U.S. Constitution, courts interpreting those constitutional provisions taken from the U.S. Constitution should be given persuasive weight in, say, the same way that state courts interpreting state constitutions might. But he did not.

But I suppose because he did not do any of this, critics of foreign law in constitutional interpretation might take heart from the Breyer talk because it’s clear he does not consider foreign law (and probably international law) binding with respect to constitutional interpretation. He doesn’t really even think it is very important. In fact, in his answer to the very last question, he seemed to recognize the real problem that heavy reliance on foreign law might create.



…the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government. That changes the cast of mind, and it helps to explain why it’s so deep in America to say, “But who are those people? We had no say. We had no say in them, in their position.



And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining — too much — by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That’s a good thing.

He then adds, somewhat gratuitously.



of course, I don’t think it stops me from looking at the foreign opinions — (laughter) — and even citing them. (Applause.)



It is worth noting that Scalia had no response. He didn’t need one.

Where Koh’s Testimony Went Wrong

by Julian Ku

I’m a big fan of Harold Koh, who was one of my professors in law school, because he serves as a great role model for all law students interested in international law, government service, and legal academia. That said, I find one important element of his critique very unconvincing.

Let me put aside his arguments about whether the controversial August 1, 2002 OLC memo defined torture too narrowly and whether the Geneva Conventions applied in Afghanistan. The first is an extremely difficult question for which little authority exists in the form of, say, caselaw. It has also been the subject of an interesting debate between Heather Macdonald and Marty Lederman. (I judge Lederman the winner in a split decision, but I think they are both wrong and that Stuart Taylor has the best take on all of this, as usual.). The second question seems pretty unimportant because Koh agrees that Al Qaeda terrorists do not receive POW status under the Geneva Convention and the President has agreed to treat all detainees humanely whether or not they are POWs.

Even if Koh is right on his two other criticisms of Gonzales (which I doubt), he plainly overreached in his rejection of the so-called “commander in chief” argument.

The idea that there is some sphere of executive commander in chief authority that is constitutionally protected from congressional powers is hardly radical in the way that Koh suggests. Walter Dellinger, Clinton’s OLC chief and well-known law professor, wielded this argument to dissuade Congress from attempting to legislate prohibitions on U.S. cooperation with international organizations.

It is for the President alone, as Commander-in-Chief, to make the choice of the particular personnel who are to exercise operational and tactical command functions over the U.S. Armed Forces. True, Congress has the power to lay down general rules . . . but such framework rules may not unduly constrain or inhibit the President’s authority to make and to implement the decisions that he deems necessary or advisable for the successful conduct of military missions in the field, including the choice of particular persons to perform specific command functions in those missions. (emphasis added)

Koh further slams the OLC memo’s “stunning failure of lawyerly craft” because it did not cite the landmark case of Youngstown Steel & Tube Co. v. Sawyer, which Koh says “spelled out clear limits on the President’s constitutional powers.” Failures of “lawyerly craft” seems endemic at the OLC, because Dellinger’s Clinton-era OLC memo also mysteriously failed to cite Youngstown. And for good reason. Youngstown may be a great and even sensible case, but it can hardly be read to “spell out clear limits” when the key concurrence describes the President’s powers as “not fixed, but fluctuat[ing]” and where the President’s power to act against the will of Congress is not prohibited, but is simply “at its lowest ebb.”

I may be nitpicking. But this is an important constitutional principle that is quite different and separate from the battles over the Torture Convention and the Geneva Conventions. And it deserves better analysis than Koh and other critics have provided here.

Harold Koh’s Testimony on Gonzales Nomination

by Chris Borgen

The testimony of Harold Koh, the Dean of Yale Law School and former Assistant Secretary of State for Democracy, Human Rights, and Labor, before the Senate Judiciary Committee on the nomination of Alberto Gonzales has been made available here.

The Gonzales nomination and the related issues of the “Torture Memoranda” have been discussed at length in many public fora. I point out Koh’s testimony, though, as I find it both persuasive on the specific issues of the “Torture Memos” and also relevant to a broader discussion of the relation of international law to foreign policy. Koh discussed three issues: (a) the illegality of torture and cruel, inhuman, and degrading treatment, (b) the scope of the President’s powers to authorize torture and cruel treatment by U.S. officials, and (c) the applicability of the Geneva Conventions on the Laws of War to alleged combatants in U.S. custody. He concluded that the memos attempted to marginalize accepted interpretations of, and the policy behind, the Torture Convention, that they overstated the effects of the President’s powers as Commander-in-Chief, and that they set a dangerous precedent concerning the U.S. interpretation of the Geneva Conventions–one that could put U.S. soldiers at risk.

Beyond the specific issue of the Gonzales nomination, Koh’s testimony does an good job setting out a view of how ignoring the interaction of domestic laws with treaties and international norms is not only legally questionable, but stategically and politically unsound:

Taken together, Mr. Gonzales’ legal positions have sent a confusing message to the world about our Nation’s commitment to human rights and the rule of law. They have fostered a sense that we apply double standards and tolerate a gap between our rhetoric and our practice. Obviously, our country has faced a dangerous threat since September 11, and we expect our leading officials to respond. But we should not discount the enormous costs to our reputation as a leader on human rights and the rule of law from the perception that we have waged a war on terror by skirting the Torture Convention, upsetting constitutional checks and balances, opening loopholes in the Geneva Conventions, and creating extra-legal persons and extra-legal zones.

While disregarding international obligations and norms can give you wider freedom of movement in the short run, the domestic and international backlash can narrow your options in the medium or long term. As Condoleezza Rice and the rest of the second term foreign policy team start their new jobs, I hope they remember Harold Koh’s wise counsel from the Gonzales hearings.

Eric Posner Presentation at Columbia Law School

by Chris Borgen

As a follow-up to Julian’s earlier post, I wanted to note that one of the co-authors of the recent paper assessing bias at the ICJ, Prof. Eric Posner of ther University of Chicago School of Law, will be speaking on this topic at Columbia Law School in New York on January 24th at 4:10 pm. The talk will be in Jerome Greene Hall, Room 107.

Following is the abstract:

Abstract – The International Court of Justice has jurisdiction over disputes between nations, and has decided dozens of cases since it began operations in 1946. Its defenders argue that the ICJ decides cases impartially and confers legitimacy on the international legal system. Its critics argue that the members of the ICJ vote the interests of the states that appoint them. Prior empirical scholarship is ambiguous. We test the charge of bias using statistical methods. We find strong evidence that (1) judges favor the states that appoint them, and (2) judges favor states whose wealth level is close to that of the judges’ own state; and weaker evidence that (3) judges favor states whose political system is similar to that of the judges’ own state, and (4) (more weakly) judges favor states whose culture (language and religion) is similar to that of the judges’ own state. We find weak or no evidence that judges are influenced by regionaland military alignments.

Speech at the CIA

by Peggy McGuinness

Julian,

I would place CIA officials in much the same category as FSOs, particularly those working under FSO cover at foreign embassies. Limitations on the speech of CIA officials are arguably more important, since the protection of intelligence sources and methods is crucial to our national security. That said, I have no problem with the publication of Michael Scheuer’s book, Imperial Hubris, because it was, in fact, cleared and authorized by his employer in accordance with the law.

Mark Zaid’s review of Imperial Hubris includes a discussion of these CIA’s regulations, which are even more onerous than the clearance process at State. And, quite sensibly in my view, the CIA has the right to enforce those regulations even against ex-employees who fail to get clearance for publishing certain classified information. (See Snepp v. United States, and this summary of the process from the CIA’s website; yes, they even review cook books!) Zaid notes that Scheuer’s book first came to publication under “anonymous” at the behest of the CIA, which had previously authorized Scheuer, an “overt” analyst, to give on-the-record interviews about Al Qaeda, Scheuer’s area of expertise. It was only after he resigned from the CIA that Scheuer was free to promote the book, something the CIA had prohibited (well within its rights) while he was still on the payroll. Since Porter Goss took over as DCI, the CIA is apparently looking into revising the rules under which Scheuer’s book was approved.

I do think there is one slight distinction worth noting about the clearance process at CIA and that at State, and it lies in the nature of the functions of those agencies. The work of diplomats is largely out in the open; their function is to be the public face of the United States and to engage with their foreign counterparts . The CIA’s work is by design largely hidden. The rationales underlying each agency’s regulation of employee speech reflect that distinction.

Defending the Diplomad (Sort of)

by Julian Ku

Peggy,

I can’t resist just a quick note in defense of one of my favorite blogs, the Diplomad, which you slapped down quite effectively here. I don’t have any reason to doubt that you are right that FS rules and FS norms that are being violated here. But I don’t see why FSOs should be prevented from anonymous sniping at their bosses while CIA analysts can write whole books on this to wide applause? Is there something special about the Foreign Service that we are trying to protect here?

Everyone is Doing It: The WTO Plans Reform

by Julian Ku

Just so they are not left off the international institution reform bandwagon, the WTO released a study yesterday by a panel of eminent persons proposing certain reforms. The news coverage has been light, especially when compared to the possible reforms at the UN, but this could be just as significant in many ways.

I will blog about the report in more detail later, but it is worth noting for now that the study’s discussion of whether the WTO infringes on national sovereignty (which appears to be written by Georgetown law prof John Jackson). The study eschews the strategy of, say some UN advocates, who often pooh-pooh the sovereignty issue as ravings of folks like Pat Buchanan or Ralph Nader. Instead, it adopts a pragmatic balancing that focuses on the costs and benefits of reducing sovereignty.

Ultimately what counts is whether the balance between some loss of “policy space” at the national level and the advantages of cooperation and the rule fo law at the multilateral elvel is positive or negative. Our view is that it is already positive for all WTO members and will increasingly be so in the future.

Personnel Changes at the UN

by Peggy McGuinness

Kenneth Anderson has an interesting take on today’s news reports about changes at the UN and about UN reform more generally.

Ending World Poverty

by Peggy McGuinness

The UN Millennium Commission issued its report yesterday on how to combat world poverty. The bottom line: extreme poverty and death by preventable disease can be sharply reduced over the next decade by doubling the amount the developed world spends on aid to the poorest countries. In real terms, that means increasing development assistance from less than .25 percent of GDP to around .50 percent of GDP. In anticipation of the criticism from that hand outs to poor countries don’t work, the proposal also calls for coordinating assistance with market-oriented solutions such as reductions in import restrictions on goods from sub-Saharan Africa and promotion of free trade. Some early comments on the report can be found here and here. The release of the report appears to have been timed with statements of support from the IMF and World Bank.

Diplomatic Discourse and Dissent

by Peggy McGuinness

One of Julian’s earlier postings linked to an anonymous group of Republican Foreign Service Officers who appear to have a lot to say — most of it in the form of invective and ad hominem attacks — about the efficacy of UNICEF, foreign aid programs generally, and their fellow American diplomats. The blog would hardly be worth mentioning, except for the fact of its very existence. Assuming that these bloggers are who they say they are, is what they are doing proper? This is an interesting question for anyone teaching foreign relations law and those of you who advise students on careers in the Foreign Service.

As a former FSO myself, I feel strongly that the Foreign Service should reflect America’s geographical, racial, religious, cultural, socio-economic and, yes, political diversity. FSOs have a difficult but crucial role to play in our foreign policy-making process: to interpret American policy and, increasingly, business and societal trends, to their foreign counterparts and interpret and analyze foreign political, economic and cultural trends for policy makers in Washington. They also play a crucial role of protecting the interests of the 2 million or so Americans living overseas. (And you need look no further than the names of FSOs killed while in service of United States etched in marble in the lobby of the State Department for a grim reminder of the sacrifices American diplomats and their families have made in protecting American interests.) Diversity of perspectives is crucial to carrying out effectively the reporting and representation aspects of the job. But the very nature of that role requires FSOs to limit public statements to the contours of US policy as laid out by the President in the exercise of his foreign policy powers.

The rules governing what FSOs can and cannot say in public recognize this need and quite explicitly require approval of public statements, even those made in an “unofficial” or “private capacity”, if the statements touch on “official matters”, which would include just about any international policy issue. (Full text of the regulation, 10 FAM 121.1, is available on the State Department website.) The reality is, when an FSO is serving overseas, she is rarely, if ever, in a setting that is not “official” in nature. What, then, is an FSO permitted to do if she disagrees with the President’s policies?

During the Vietnam war, in response to complaints that dissenting views on policy had been shut down at the intermediate level before reaching senior policy makers in Washington, the Department instituted the “dissent channel,” which allows any State Dept employee, regardless of rank, to have her views heard by the Secretary and Under Secretaries. (Here is a brief history of the dissent channel and here is a copy of the full policy, which includes protections against reprisals for using the channel.) It has been invoked hundreds of times in the past three decades, and saw quite a bit of traffic during the early 1990s when many FSOs felt frustrated by the lack of a US military response to atrocities in the Balkans.

If attempts to change the policy through use of the dissent channel fail, an FSO has only one resort: resignation. Indeed, FSOs have made public their resignations due to disagreements over the Vietnam war , failure to intervene in Bosnia, and, most recently, the invasion of Iraq. (Here is an illustration of how an FSO handled disagreement, dissent and finally resignation from the Foreign Service over opposition to Iraq policy.) Otherwise, an FSO’s job is to keep her personal views private and carry out the agenda that the President and Secretary of State have set out. It’s part of the deal you sign onto when you take the oath of office.

Admittedly, there are times when FSOs, particularly those in more senior policy-making positions, have ignored the rules and “gone public” on policy disagreements without Department approval and without invoking the dissent channel. (Unauthorized leaks were almost de rigueur during the Vietnam era, and some observers have claimed that the dissent channel was in part designed to keep disagreement out of the papers.) Isn’t the blogosphere the same thing? I don’t think it is. Journalists generally talk to more than one source in reporting the story. The FSO that goes on “background” with a reporter is not guaranteed a public statement and faces potential rebuttal by other sources. And, when an FSO leaks without authorization, she knows she is also risking reprimand inside the department. That does not, so far, appear to be the case for the bloggers.

Vigorous debate within our foreign policy apparatus is crucial to good decision making. But taking personal rants on issues of international policy and national security to the blogosphere while hiding under a cloak of anonymity appears not only against the rules, but — how shall I put it — undiplomatic.

Martin Luther King Jr. and a Just World Order

by Chris Borgen

In honor of Martin Luther King Day, I wanted to post a few thoughts on Dr. King’s message and the work of international law. Brian Lehrer on WNYC has been running a show today of short excerpts of readings in some way reflective of Dr. King’s message but about cultures other than our own. Also, for those interested in reading from Dr. King’s papers and speeches, Stanford University has an excellent collected papers project available online.

But why talk about Dr. King on a blog about international law? King’s voice was not the voice of the international lawyer, but of the pastor. He didn’t parse treaties; he invoked morality. Nonetheless, there is something in Dr. King’s rhetoric and in his argument that can inform and engage the work of international lawyers.

Quite simply, Martin Luther King put himself in the shoes of others and spoke eloquently about their claims for justice. This technique of looking at the world from the standpoint of others is all the more vital when we are discussing laws or norms that we claim should be applied across national and cultural borders. Consider, for example, how Dr. King referred to the people of Vietnam in his “Beyond Vietnam” speech delivered on April 4th, 1967:

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond in compassion, my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the ideologies of the Liberation Front, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them, too, because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries.

Not so much a battle for the hearts and minds, but an attempt to understand hearts and minds. He asks us to “appreciate the reciprocal”: think of how the world would look from the standpoint of the average man or woman living in Vietnam. Towards the end of his speech, he expands from the concerns of U.S. policy in Vietnam to the challenge of building not so much a “New World Order,” but a “Just World Order.” He argues that truly appreciating the reciprocal, this radical compassion on the individual level, leads to institutional transformation:

A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. On the one hand we are called to play the good Samaritan on life’s roadside; but that will be only an initial act. One day we must come to see that the whole Jericho road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life’s highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring.

A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: “This is not just.” It will look at our alliance with the landed gentry of Latin America and say: “This is not just.” The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just.

While full of references to the problems of the day (the Communist threat; whether to seat Red China in the U.N.), Dr. King still gives us a lesson for our day. He argues that we should see ourselves in the other and that many rights are universal and not the preserve of Western societies. But, at the same time, he counseled humility in international discourse and an openess to learning from others, rather than on insisting that we in “the West” can only be teachers. He emphasized showing what a rights-based view of humanity had to offer, rather than simply criticizing the world-view of others. And, at the end of the day, he put more faith in the possibility transformative discourse than in supposed pragmatism of regime change.

A true revolution of values will lay hands on the world order and say of war: “This way of settling differences is not just.” This business of burning human beings with napalm, of filling our nation’s homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death

America, the richest and most powerful nation in the world, can well lead the way in this revolution of values…

This kind of positive revolution of values is our best defense against communism. War is not the answer. Communism will never be defeated by the use of atomic bombs or nuclear weapons. Let us not join those who shout war and, through their misguided passions, urge the United States to relinquish its participation in the United Nations. These are days which demand wise restraint and calm reasonableness. We must not call everyone a Communist or an appeaser who advocates the seating of Red China in the United Nations and who recognizes that hate and hysteria are not the final answers to the problem of these turbulent days. We must not engage in a negative anti-communism, but rather in a positive thrust for democracy, realizing that our greatest defense against communism is to take offensive action in behalf of justice. We must with positive action seek to remove those conditions of poverty, insecurity and injustice which are the fertile soil in which the seed of communism grows and develops.

Dr. King spoke in the voice of a preacher. There’s much good in what he said and some that may not seem practical to us today. But, at the very least, he provided a coherent world view that wasn’t subsumed by international law but encompassed it.

Martin Luther King Day allows us to remember the battles fought in the past: Freedom Marches, lunch counter sit-ins, and facing Bull Conner’s dogs. To a certain extent it allows us Americans to pat ourselves on the back and say “Look how far we’ve come.” But King’s message goes beyond Alabama in the mid-1960’s and is still radical, challenging, and of global relevance today. As an international lawyer, I read his words and think not only about how far we’ve come, but about how far we have to go.

Breyer v. Scalia: A "Messy Conversation" on Foreign Law

by Peggy McGuinness

Julian,

Breyer and Scalia don’t appear to disagree about international or comparative law per se, but about the appropriate role of judges and their use of any non-binding sources of law or information when trying to resolve cases. (In fact, Scalia has stated clearly that he sees it as important and appropriate to use foreign and international court opinions in interpreting the treaty obligations of the United States.) And since no one claims that foreign sources are binding in any way, how is discussing them a danger to popular sovereignty? It seems perfectly sensible for the Court to seek out all sorts of sources of information in an effort to better understand complex legal questions. As Breyer put it, foreign law sources are simply one element of the “messy conversation” about law that judges take part in:

[L]aw is not really handed down from on high, even from the Supreme Court. Rather, it emerges. And we’re part of it, the clerks are part of it, but only part. And what really survives every time is the result, I tend to think of a conversation. I think that’s the right word, conversation among judges, among professors, among law students, among members of the bar, because you need people to put things together, you need people to decide cases, you need people to tell you how it works out in practice. And out of this giant, messy, unbelievably messy conversation emerges law. And that means you have to have the conversation.

Jamin Raskin argues that Scalia can’t have it both ways on originalism: either all outside sources (including Blackstone, Shakespeare, popular movies and Gilbert & Sullivan) that find no explicit mention in the Constitution or the history of its drafting are improper subjects for discussion by the Court, or everything is fair game. And it seems pretty clear that recent political responses to the mere mention of foreign law in the Court’s opinions (see, e.g., HR 3799) were motivated not so much out of concern for coherence in judicial decision-making, but out of lingering bitterness on the Hill over European opposition to the Iraq war.

Breyer v. Scalia on Foreign Law and Constitutional Interpretation

by Julian Ku

As Chris noted, Justice Breyer and Scalia engaged in an unusual public “conversation” about the use of foreign law in constitutional interpretation last Thursday. The transcript has been posted here (via how appealing ). This exchange has already been the subject of numerous posts in the blogosphere here and here. I don’t have much more to add except to observe that Justice Breyer’s defense is essentially that since foreign law is not binding, it can’t really be that bad (and might well be helpful) for constitutional interpretation. This is an attractive position, perhaps, but it is useful to compare Justice Breyer’s defense with Justice Scalia’s approach, which provides a theory of constitutional interpretation which coherently explains why foreign law is irrelevant. Justice Breyer’s approach lacks any coherent theory explaining why foreign law is relevant and, for that reason alone, is less persuasive. I do think there are coherent theories of why foreign law might matter, but Justice Breyer has simply failed to identify or endorse any of them. Any thoughts, Chris or Peggy?


John Yoo Rethinks War Powers

by Julian Ku

John Yoo, a law professor at the University of California at Berkeley, has become somewhat well known recently for his role in shaping the Bush Administration’s legal approach to the war on terrorism, and in particular, the effect of treaties and statutes prohibiting torture on U.S. government policy in Guantanamo Bay and Afghanistan. But prior to his recent fifteen minutes of fame, Yoo was well-known in the legal academy for his view that the original understanding of the Constitution does not require the President to get a declaration of war or even any other form of congressional authorization before engaging in major military hostilities.

This week, he has posted an article that does not back away from his previous positions, but which does suggest a different approach. Given the transformation of warfare and the different nature of the war against terrorism, he argues against constitutionalizing war powers law into a rigid “Congress-must-authorize-first” rule. Rather, he suggests that the political process might work out the best approach. I don’t know if I agree with his approach, but I do think he is asking the most important question facing lawyers and scholars who are interested in this subject: is the war on terrorism “different” in some way that calls for a different understanding of the law governing the use of military force? I don’t think anyone who has a view on, say the status of enemy combatants, the applicability of the Geneva Conventions to alleged Al Qaeda suspects, and other legal questions can avoid taking a position on this question.

Bias and Decline at the International Court of Justice

by Julian Ku

One of the things I think we can provide to blog readers is an insight into what international law academics are thinking and writing about. And not just what the three of us are thinking about (as valuable of course as that may be). Peggy has already gotten us started with her post about Peter Spiro’s recent work. In the same vein, I thought I would point to two recent articles by Eric Posner about the International Court of Justice. The first, “Is the International Court of Justice Biased?”, which does an empirical study finding bias in judges on the ICJ toward the countries that appoint them and toward countries with similar levels of wealth. The second, “The Decline of the International Court of Justice” argues that the ICJ is hearing fewer cases (relative to the number of states that exist) and tries to explain why the court is hearing fewer and fewer cases.

Both articles cast a skeptical eye on the normative claims sometimes used by enthusiasts for institutions like the ICJ. This matters for us as international lawyers because if the institutions that are charged with interpreting and developing international law have flaws, that should effect how we think about the importance of that law in general (as we have been discussing in the last few posts).

Accountability, Indeed

by Peggy McGuinness

Chris, Julian —

It looks like we are not immune from the general tendency of commentators to talk past each other on the question of UN reform and the value of international law and institutions to US interests. Let me try to unpack what we mean by accountability by refining what Chris referred to as the “ends/means” debate.

Implicit in my discussion of UN reform was the assumption that there is enduring value to an international institution that is open to universal membership and predicated on the idea that peace is preferable to war, cooperation is preferable to conflict and that all human beings are entitled to the protection of some basic rights. Those of us who believe that such an institution has served and will continue to serve the long-term interests of the United States (as well as the long-term interests of all actors in the international system) must work to ensure that the institution is capable of carrying out that mandate. That means paying attention to “little” things, such as fiscal corruption and incompetence within the bureaucracy, as well as to “large” things, such as institutional norms that undermine the central tenets of the institution. The former requires the relatively simple steps of adopting transparent systems of control with which most advanced democracies have experience. The latter is more difficult and may require, for example, reconsidering the rules governing membership on the Human Rights Commission, the structure of the Security Council, and, perhaps, the Charter provisions concerning how and when the collective security mechanisms are triggered. I will have more to say on this next week, but the difficulty of the Secretary General’s High-Level Panel to reach consensus on amendments to the language of the Charter does not leave me optimistic that we will see change anytime soon on these larger issues.

On that hardy perennial of whether the US does or should hold itself to the standards of international law, I find myself somewhere in the middle of both your positions. The notion of American exceptionalism, i.e., that international law is good for everyone else, but not for us, is generally based on three arguments: 1) our domestic legal order is adequate and perhaps superior to international norms in solving our problems; 2) the domestic legal order under our Constitution should be the last word on how “we the people” order our democracy and conduct ourselves internationally; and 3) notwithstanding the merits of #1 or #2, it would be detrimental to our economic and political security to subject ourselves to outside rule making. The reality of globalization has eclipsed the first argument, and is reflected in broad US leadership in the internationalization of all aspects of economic regulation. (Admittedly, it is a form regulation that reflects our particular brand of free market capitalism, but it is nonetheless regulation, and the US is more or less living up to its obligations in that sphere.) The second and third arguments — which seem to me implicit in Julian’s comments — are more challenging for those of us who support continuing US participation in the UN and other international institutions. Yes, Chris, the US ought to live up to the obligations it has undertaken. But what happens when the US changes its mind? What happens when those obligations no longer reflect the interests of the United States? Or when the international institutions no longer reflect their original purpose? What if populism resurges and Congress decides it does not like the rules of NAFTA of the WTO? What if, instead of Congress, its the President who changes his mind?

America’s complicated relationship with international law has been around since the founding of the Republic. Jed Rubenfeld has an interesting commentary in the most recent NYU Law Review that traces some of the history of US unilateralist tendencies and concludes that the US should make a distinction between international cooperation (good because necessary to address global problems and promote US interests) and international governance (bad because anti-democratic and potentially adverse to US interests). The failure to articulate this distinction adequately in public discourse only exacerbates the tensions between us and our European counterparts — whose acceptance of supranational governance is central to the European project — on questions of international law. But the EU system is not our system.

This explains, in part, why we and the Europeans have been talking past each other on the issue of prosecutorial independence at the ICC.

The challenge for American internationalists is to devise and support rules of cooperation that actually promote global welfare and human dignity but that also preserve diverse domestic forms of democratic governance and accountability.

Accountability (Slight Return)

by Chris Borgen

Julian’s reply is informative but I think he is overstating my point and actually misses the core of my argument. In the end, I think we mean different things when we use the term “accountability.”

He writes that I “concede there are all sorts of problems with international institutions, but then suggests that the United States doesn’t really have all that much credibility when it criticizes those institutions due to the United States’ various sins — Chris describes it as a ‘lack of accountability.'”

Julian is only half-right here; I do agree that there are all sorts of problems with international institutions, as there are all sorts of problems with the US and other national governments. I do not think that the US lacks credibility in criticizing the problems in the UN; the main issue as I see it is that the US is enthusiastic about international regimes of accountability (investor-state dispute resolution; war crimes tribunals) when they have little or no chance of applying to the US itself and we seem to lose our zeal for these institutions when they begin to question US attitudes.

This is the central issue–whether the US acts as international law is something that other countries need to worry about but not the US itself.

But, Julian replies, the US is subject to accountability, primarily to “its own voters, its own media elite, foreign countries, etc.” This, I think, highlights what may be the key difference between Julian’s argument and mine. If we take international law seriously, then it is something that gives rise, in its various forms, to obligations between the U.S. and foriegn countries, foriegn nationals, international organizations, etc. Simply hoping that domestic voters and domestic “media elite” (whatever that is) will hold the U.S. accountable is not enough. The rights-holders (foreign countries or nationals) should have a means to actually hold us accountable for the legal obligations that we have undertaken. After all, we demand that from other countries who sign various treaties with us such as Bilateral Investment Treaties. Hoping that voters and the media will do the job is not the rule of law; that is simply hoping that political pressure will suffice.

But what about foreign countries, as Julian says, can’t they hold us accountable? And I ask, what do you mean by accountable? Simply making a speech before the UN General Assembly? I think accountability under the rule of law goes farther than that. It means if you have undertaken a legal obligation that provides a remedy to the rights-holder, then you respect that regime when you are the defendant as well as when you are the plaintiff.

Perhaps, at the heart of this, Julian and I aren’t defining accountability the same way. While I have great faith in the American political process to provide political accountability of US leaders to American voters, I think international law is about providing legal accountability of the US to those foreign states and nationals with whom we have decided to create a legal obligation. Different issues needing different methods of accountability.

And, at the end of the day, the US and its nationals have been zealous in prosecuting their rights via these fora. I simply say we sould not be surprised and offended when we may be called in to defend our own actions. After all, nobody forced us to sign these treaties.

Accountability and First Principles

by Julian Ku

I am enjoying this discussion, not the least because it reveals some of the fundamentally different views of the law, and perhaps the world between Chris and myself.

Chris makes a move that I’ve seen many international lawyers make. He concedes there are all sorts of problems with international institutions, but then suggests that the United States doesn’t really have all that much credibility when it criticizes those institutions due to the United States’ various sins — Chris describes it as a “lack of accountability.”

There’s an interesting problem here. Part of what keeps international institutions like the U.N. accountable is the threat, sometimes explicit, bythe United States and other countries that they will do the kinds of things Chris might describe as lacking respect for the international rule of law. Hence, one of the most important checks on the U.N., and one of the reasons the U.N. ever agreed to allow investigation into the Oil-for-Food scandal, was not the clamoring of NGOs, but the crusading of important U.S. Congressmen who were threatening to cut or withhold U.S. contributions to the U.N.’s budget. Imagine if the U.S. simply paid obeisance to the U.N. and the “international rule of law” and made its contributions without asking questions. Indeed, as Peggy points out, the United Nations Compensation Commission continues to stonewall even today claiming, among other things, that the Volcker Commission has no legal authority to investigate.

In a similar way, the U.S. criticism of the International Criminal Court has highlighted a serious flaw in the way that institution is designed. The choice to pursue prosecutions is, at the very least, partially political and granting unelected, unaccountable prosecutors the power to investigate and prosecute is always going to be slightly political. Just ask Bill Clinton or Ken Starr. The U.S. proposed a reasonable compromise that Chris alluded to. The international community (whatever that means) rejected it on the theory that the U.S. commitment to the “rule of law” would eventually bring them around. This hasn’t happened and the ICC has not done itself any favors by suggesting U.S. multinational corporations could also fall within its jurisdiction (I pointed out in an earlier post that future Secretary of Homeland Security Chertoff made this point here).

So the paradox is that U.S. grousing about “sovereignty” is one of the only ways to actually keep international institutions like the U.N. accountable, something that Chris concedes is necessary. His other point, of course, is “who is going to keep the U.S. accountable”? I agree this might a problem, but I think the U.S. government is surprisingly accountable to a variety of constituencies: its own voters, its own media elite, foreign countries, etc. Notice that the Abu Ghraib trials continue with major media coverage due to a combination of these forces. It’s not perfect, but at least the U.S. government has its own built-in system of accountability. I can’t say that about either the U.N. or the ICC.

The Accountability Problem

by Chris Borgen

I want to weave together a few separate strands from earlier postings, particularly the question of UN accountability, skepticism towards multilateralism, and the rule of law.

Julian is concerned about a double standard in which some commentators apply more lenient criteria to UN bad acts than to the U.S. I think we’re all in agreement that the UN needs to clean house in terms of financial mismanagement, accountability of peacekeepers, etc., but I also think that the U.S. should hold itself to the same levels of accountability that it is insisting on for the UN (as well as for other governments). And, as this discussion is about international law, I want to particularly focus on whether the U.S. is taking seriously its being accountable for some of its international commitments.

In On the Rule of Law, the book I highlighted in my previous post, Brian Tamanaha wrote:

While it might be correct that most laws are followed most of the time, the most powerful states, and less powerful states when it matters most to them, nonetheless disregard international law by their leave when they consider it necessary for perceived national interest or to preserve the regime in power. Realpolitik remains a predictable mainstay of international law.



I think that while many politically conservative critics of the UN rail against its lack of accountability, they also dislike multilateralism more generally because it increases the accountability of the U.S. concerning its international obligations. In other words, accountability is great from the UN but for the U.S. it is undesirable because it makes realpolitik more difficult. (This, by the way, is also why so many militarily weaker states are enthusiastic about international law on topics such as the use of force.)

Consider international courts and tribunals as an example of the tension between accountability and realpolitik. With the possible exception of the International Court of Justice, international tribunals until recently were largely constructed in a manner in which strong states could more easily call weaker states (or their citizens) to account for their actions than vice versa. The Nuremberg and Tokyo Tribunals were constructed by victorious allies. The Yugoslav and Rwandan Tribunals were managed by the international community (mainly the U.S. and E.U. states) and were focused on bad acts by the citizens from the countries that were tearing themselves apart, as opposed to the international troops dispatched into the warzones. On the economic side, the investor-state dispute provisions in bilateral investment treaties (BITs) were mainly used by companies from rich, developed, countries to protect their investments in poorer, developing nations.

But recently, new courts and tribunals have increasingly brought rich nations to account. NAFTA Chapter 11, for example, includes a dispute resolution procedure similar to most BITs, but now our co-signatories are Canada and Mexico. There is significant investment by Canadian and, to a lesser extent, Mexican companies into the U.S. Now the U.S. has found itself on the defensive on issues ranging from the regulation of gasoline additives to government procurement rules. All of a sudden, investor-state dispute resolution, a regime that the U.S. has pursued for 30 years, doesn’t seem like such a great idea in the eyes of many commentators.

Similarly, the International Criminal Court is built upon the same normative foundations as the Nuremberg, Rwanda, and Yugoslav tribunals. The ICC as an institution does have problems that should cause the U.S. concern, but the criticism I have seen most often is a fear of an independent prosecutor that could be politicized and hamper U.S. troops. The solution many such critics suggest is that the Security Council must ratify any indictment, thus leaving any potential indictment open to the veto of one of the permanent members of the Security Council, effectively immunizing them. More importantly, no solution short of this seems to satisfy such critics. It would be a triumph of realpolitik over accountability.

Here is my concern: some are using accountability as a sword to attack the UN because of its lack of accountability while at the same time shunning international institutions because they could call for U.S. accountability. Nobody says you have to be logically consistent, but the implications of such a stance are not good for the role of law in international affairs, let alone the rule of law.

Brian Tamanaha’s On the Rule of Law

by Chris Borgen

My next post will concern some issues of accountability and the rule of law, but I wanted to point out to anyone who may be interested that Cambridge University Press has just published a book entitled On the Rule of Law: History, Politics, Theory by my colleague here at St. John’s Law, Brian Tamanaha. Many lawyers, especially legal philosophers and international lawyers, talk and write alot about the rule of law without necessarily considering whether the concept is one that has stayed constant or even whether it currently has different meanings for domestic legal systems and international law. Anyway, Tamanaha discusses these issues, going through a history of the concept of the rule of law from Roman times forward and also considers current debates on the rule of law in international law and as a “universal” value. I’ll come back to this topic momentarily…

Justices Breyer and Scalia on Foreign Decisions and U.S. Constitutional Law

by Chris Borgen

A quick note for anyone interested: a student has e-mailed me that this Thursday at 4:00 pm Eastern, C-Span will be airing a discussion with Supreme Court Justices Antonin Scalia and Stephen Breyer on “Whether Foreign Court Decisions Should Impact American Constitutional Law.”

Chertoff and the International Criminal Court

by Julian Ku

On a tangentially related topic, President Bush announced today that he is nominating Judge Michael Chertoff to be the new Homeland Security chief. I don’t know all that much about Judge Chertoff, except that he is well-respected in conservative circles. Interestingly, he has penned what I think is a very convincing critique of the International Criminal Court based on the statements made by the ICC officials themselves, who have not exactly made any serious effort to gain acceptance in the U.S. for their controversial institution and who present an easy target for critics of international institutions and the UN system generally.

Double Standards and the UN

by Julian Ku

Just a quick note, because I think Chris’ thoughtful response also illustrates part of the problem I was trying to get at in my first post. That is to say, do defenders of the UN engage in kneejerk defenses of the UN simply because their commitment to the UN’s causes (e.g. world peace or, if you like, multilateral politics) is so strong? Put another way, do folks like the NYT editorial board apply something close to a double standard when criticizing the UN because it is a multilateral institution they like? I think there is some evidence of this.

Case in point. In recent months, the UN’s Oil for Food Scandal has revealed that, at the very least, the UN has engaged in unbelievably poor management of a very important program which resulted in serious amounts of money, intended for Iraqi civilians, being diverted into the UN’s own coffers or that of its employees. Unrelatedly, UN peacekeepers have been implicated in a disgusting and horrifying scandal in Africa involving abuse and rape of young girls by UN peacekeepers.

Many UN defenders are the same folks who still complain about U.S. funding of dictators in Latin America in the 1980s and who are (rightly) going to the mat over revelations of U.S. abuse in Iraq and perhaps elsewhere. But why give the UN a free pass?

I’ll concede that there are UN critics who are equally one-sided, refusing to see wrong in the U.S. and refusing to see right in the UN. But their lack of critical sophistication does not excuse the UN’s defenders in the mainstream media and the academy, who lose credibility among fair-minded observers when they apply a double-standard of outrage to their criticisms of their favorite multilateral institution.

Saving the UN from Itself (and Others)

by Chris Borgen

Peggy and Julian have started us off with some great opening questions on UN reform. Also in the spirit of tossing our some preliminary comments, I want to begin by asking what it is we are actually debating about.

Criticisms of the UN generally come under two broad categories: means and ends. Critiques of the means of the UN focus on problems such as accountability including, for example, democratic accountability for how soldiers are used in peacekeeping operations and financial accountability in the case of the Oil-for-Food program. These criticisms don’t really question the immediate ends of UN programs or the ultimate ends of the UN itself but rather how these policies are implemented. I take Julian’s criticisms to be largely along these lines.

The other form of criticism– the critique of ends– has had a fairly loud voice (though not necessarily broad following) in recent US politics. These attacks are usually not aimed at the immediate ends of UN policies (say, separating warring factions in Country X) but rather at a sense that the real aim of the UN is to erode away the sovereignty of states in favor of its own prerogatives. Giving someone a veto over our security, so to speak. This argument is really about a distrust of multilateralism out of a fear that multilateralism evenutally becomes “one-worldism.”

These two forms of argument are distinct and yet are too often combined when discussing the UN. Yet, you can be highly critical of the current practices of UN financial accountability, for example, and still find great use in multilateralism as a technique of statecraft. You can also find multilateralism can be a good way– perhaps the only way– to address many transnational problems (AIDS, serious environmental degradation, nuclear proliferation, genocide, to name a few) without for a moment thinking that we should cede as much power as possible to supranational bureaucrats.

Julian puts forward a stark question at the end of his post: he asks whether “the UN is such a corrupt and/or worthless institution that it should be scrapped.” He suggests that although “the UN is doing important work and simply [needs] to be improved…” we may also need to reconsider the assumption “among folks like the NYT editorial board and by international law academics who have otherwise shown a fairly knee-jerk defense of the institution.”

I agree that the UN needs fixing. I am sure that this is a topic that we will flesh out in the days and weeks to come. However I also think that multilateralism, though far from perfect, is prudent politics in a whole variety of issues. This is something that I think is lost in the heated rhetoric over Oil-for-Food or whether the UN should have acquiesced to US demands to go to war with Iraq as quickly as possible. Knee-jerk defenses of the UN serve it no good; knee-jerk attacks on multilateralism serve the US no good.

UN – Worth Saving?

by Julian Ku

Peggy,

Thanks for getting us off to a great start. The United Nations will no doubt be a perennial topic for us here.

The UN is obviously having a rough period, at least in the U.S., where congressional committees are harassing it and certain right-leaning parts of the media are relentlessly attacking it. The right-leaning blogosphere is certainly on the case, as this series of damning posts from (admittedly somewhat disgruntled) foreign service officers about the UN’s efforts at tsunami relief illustrate.

In my humble opinion, most of these attacks are justified, and serve the salutory purpose of keeping the UN honest. Certainly, the UN’s high purpose (maintaining peace and security) should not exempt it from the hurly-burly of the blogosphere and democratic politics.

The harder question is whether the UN is such a corrupt and/or worthless institution that it should be scrapped. This is hard to say. The mainstream view, as this NYT editorial (reg. req’d) no doubt reflects, is that the UN is doing important work and simply need to be improved. But I wonder if that assumption needs to be reconsidered among folks like the NYT editorial board and by international law academics who have otherwise shown a fairly knee-jerk defense of the institution.

UN Heal Thyself

by Peggy McGuinness

The Volcker Commission investigating fraud in the UN Iraq oil-for-food program released dozens of internal UN audit documents this weekend along with a statement that UN auditors knew of at least $5 million in losses resulting from mismanagement of the program. The full report on the oil-for-food program is not due until the end of January, but one interesting aspect of the document released this weekend is alleged mismanagement at the UN Compensation Commission, which has maintained that Volcker had no legal basis to investigate ts activities in the first place. As the Washington Post reports today, Volcker uncovered serious problems in the Commission’s auditing function, including troubling allegations that the Commission paid out undocumented claims against the Iraq government by third countries:

The auditors cited several cases in which countries made huge, undocumented claims. Iran claimed $2.7 billion in costs for providing humanitarian assistance to waves of refugees crossing its border. It received $7.87 million. Jordan put in a claim for more than $6.5 billion for providing relief to people fleeing Kuwait and Iraq, but received $72 million. Israel, which sought $1.06 billion in damages for Iraq’s Scud missile attacks, got $74.6 million.



This should provide some additional fodder for at least one of the five congressional committees investigating UN fraud in the oil-for-food program.

Meanwhile, ripples from the Volcker Commission are felt on the Tsunami aid front, where Jan Egeland announced that the UN has enlisted PricewaterhouseCoopers and other financial experts to create an external advisory and audit function for the Tsunami relief effort. Among other things, the outside experts (who are donating their services) are setting up a system to track every payment made out of the relief funds to avoid precisely those problems that occurred in the oil-for-food program. Outside auditors may not prevent determined individuals from lining their own pockets (see Enron), but with total pledged Tsunami aid approaching billions of dollars, this is a necessary and welcome effort to try to provide some public transparency and accountability to UN assistance programs. The US administration and UN-detractors on the Hill should support it. Transparency in bookkeeping is new to the United Nations, but it should be the norm.

On the topic of UN reform, ASIL will be hosting a forum January 12 on the Report of the Secretary General’s High-level Panel on Threats, Challenges and Change that was released in December. Steve Stedman and Ruth Wedgwood are the discussants. Well worth checking out if you are in the DC area this week.

International Law Comes Knocking

by Peggy McGuinness

Speaking of ontological debates, cracks may be showing in the façade (or is it a bulwark?) of American constitutional exceptionalism, i.e., the notion that US constitutional interpretation should remain unaffected by transnational legal trends and developments. This recent essay (subscription req’d) by Peter Spiro addresses the issue by applying international relations theory to explain how the disaggregated strands of transnational legal developments that have already influenced many areas of US law — intellectual property, antitrust, tax, procedure — are also at work in the area of constitutional jurisprudence. Spiro melds rationalist accounts with constructivist theory to conclude that integration of international norms by domestic actors will accelerate because it is in the self-interest of domestic groups. Here’s a snippet from the introduction:

[D]iscrete elements of the United States, including private actors and disaggregated governmental components beyond the traditional foreign policy apparatus, may be developing an institutional interest in the acceptance of international regimes. This essay thus suggests a future in which international law is absorbed into U.S. law not because it is good, although it may well be that, too, but because rational institutional action will pull in that direction.