Archive for
March, 2005

US Agrees to Darfur Referral to ICC (?!)

by Chris Borgen

Suzanne Nossel at DemocracyArsenal has posted a news report stating that the US has agreed to let the ICC handle the trials of the crimes in Darfur. An ICC referral is a topic that we here at Opinio Juris have debated at length. See here, here, and here for only three examples (other links our within these previous posts). Following is the news report, as spotted by Democracy Arsenal. As the report states, this deal has not yet been officially announced; we’ll see what happens when the time comes for public announcement.

Washington will let ICC hold Darfur trials: report

Last Updated Wed, 30 Mar 2005 23:45:07 EST
CBC News

WASHINGTON – The United States has agreed to let the International Criminal Court try people accused of committing war crimes in Sudan’s Darfur region, a news report says.

Washington had strongly opposed holding the trials at the UN court in TheHague, but agreed to a compromise on Wednesday, the Associated Press reported, citing officials from the administration of President George W.Bush.

The United States doesn’t support the court because it says it fears political enemies might launch frivolous or politically motivated prosecutions against U.S. citizens.

The officials, who asked not to be named because the deal hasn’t been made public, told the news agency the compromise includes guarantees that the ICC could not prosecute Americans deployed in Sudan.

The compromise marked the latest development in drawn-out efforts by the Security Council to deal with the crisis in Darfur.

Fighting between government-backed militias and rebels has killed about 180,000 in the region. As many as 350,000 people may have died of pneumonia, diarrhea and malnutrition and more than 1.2 million have been driven from their villages in the past 18 months alone.

Human-rights groups and other observers – including former U.S. secretaryof state Colin Powell – have condemned the violence as genocide.Many have urged the UN to deploy a peacekeeping force to quell the world’s worst humanitarian crisis.

But discussions at the UN’s Security Council have repeatedly been stalledby political wrangling, as the deaths continue.On March 29, the Security Council voted to impose a travel ban and freezeassets of people who commit atrocities in Darfur.

A few days earlier, it unanimously approved a resolution to send 10,000 peacekeepers to southern Sudan – but the troops won’t be going to Darfur.

Opinio Juris Converges on Washington D.C.

by Julian Ku

It looks like Opinio Juris will be temporarily moving to Washington D.C. over the next few days, more specifically the Loews L’Enfant Plaza Hotel where the annual meeting of the American Society of International Law is being held. If you see one of us there, don’t be shy about pulling us aside and telling us how wonderful you think this blog is. We (or at least I) might be flattered enough to buy you a drink.

Cambodia Moves to Prosecute Khmer Rouge

by Julian Ku

This week Cambodia moved closer to setting up an international tribunal to try war crimes committed by the notorious Khmer Rouge regime. The genocide of Pol Pot and his associates has been documented by numerous groups, most notably by Yale’s Cambodian Genocide Program. More wrangling over funding and structure of the tribunal remains, but it will likely be a “hybrid” tribunal with both Cambodian and international judges located in the Hague. One interesting question: why does Cambodia need an international tribunal at all here? Is it because of local politics or is it because the international community has an interest due to the scale of the crimes?

More U.N. Sex Scandals

by Julian Ku

The head of the U.N.’s Electoral Assistance Division is being accused of permitting or creating an “abusive” environment full of sexual innuendo and intimidation in a recent preliminary report commissioned by the U.N. Sounds like fairly standard hostile workplace environment claims, except the U.N. is not subject to U.S. sexual harassment laws. Indeed, it is unclear exactly what laws would govern such complaints, which is in a way unfair to the accused as well because they don’t exactly know what rules they are operating under.

Private v. Public Internationalism

by Peggy McGuinness

Julian’s earlier post about his experiences at the Vis International Arbitration Moot competition got me thinking about the rather strained ways in which international lawyers continue to cling to distinctions between private and public interactions, a reflection of an unnecessarily rigid “private v. Public” jurisprudence. (Okay, I will admit his post also got me thinking about my semester in Vienna as an undergrad…But that is another story.) These distinctions between private and public transborder discourse have become less and less meaningful in the past few decades. (In some respects, it is a development that could be viewed as “going backward” to a time when the distinction mattered very little in the discourse between nations and their citizens.) I suppose there is a way you can distinguish the value of two law students from private law schools in different countries from sharing beers and two government lawyers, or — gasp! —two supreme court justices sharing that same cross-cultural beer. But it is a distinction without a difference. When I, for example, as an employee of the state of Missouri engage in a professional exchange with a colleague at a public university in Australia, is that a public or private act? Is the university of Missouri summer program in South Africa (done with Univ. of Western Cape, also a state-funded university) a government-to-government program? I would extend Julian’s praise of the Vis program to these kinds of exchanges. I and our our students gain from them, whether the subject being discussed is how to structure public welfare benefits or private contracting rules.

It is certainly the case that a great deal of the work of multilateral institutions is to facilitate the international flow of capital, goods and human beings (WTO, ITU, UNHCR, ICAO, etc.), all of which could be construed as both “private” and “public” law matters in that they involve rule making for individuals, corporations , governments and international institutions. It is therefore quite limiting to say that governments acting in cooperation with one another internationally should be doing so only to the extent that it facilitates private acts. A lawyer on the staff of ICAO, for example, is as likely to have contacts with FAA agency officials as she is to have contacts with United Airlines, or with a state-owned airline. As we interact with one another, we not only learn new things and gain critical distance on our own legal system, the process of interaction itself creates networks –whether you want to call them “transnational networks” or “epistemic communities”– through which new norms of behavior emerge. That is what legal internationalism looks like, whatever the label.

New Progressive/Democrat Foreign Policy Blog

by Chris Borgen

There is an excellent new foreign policy blog called Democracy Arsenal that is focused not only on current issues in international affairs but also on elucidating a progressive foreign policy. The bloggers have experience in government service, political campaigns, NGOs, and private enterprise. I know one of the writers, Suzanne Nossel, I think her writing is incisive and intelligent. See her recent column on liberal internationalism at the Center for American Progress website or her article in Foreign Affairs as a couple of good examples of her work.

More generally, I like Heather Hurlburt’s post on ten steps to get the Democratic Party back on the map on foreign policy and I think that’s a good place to start to get a sense of what Democracy Arsenal is about.

Welcome to the Blogosphere!

Oil-for-Food Update: Annan Exonerated Though Accountability Still an Issue

by Chris Borgen

In its Second Interim Report, the Volcker Commission has exonerated Kofi Annan of any wrongdoing in relation to the award of a $10 million dollar contract to Cotecna, a Swiss company that employed his son, although he report does question Annan’s handling of the affair. The BBC report is here.

According to CNN:

“There is no evidence that the selection of Cotecna in 1998 was subject to any affirmative or improper influence of the secretary-general in the bidding or selection process,” a statement accompanying the report said.

“Based on the record and lack of evidence of impropriety, it is the finding of the committee that Cotecna was awarded the contract in 1998 on the ground that it was the lowest bidder.”

But the report found that Annan’s son, Kojo, deliberately tried to conceal his relationship with Cotecna.

“After the media disclosed in January 1999 his relationship with Cotecna, Kojo Annan actively participated in efforts by Cotecna to conceal the true nature of its continuing relationship with him,” the statement said. “He also intentionally deceived the secretary-general about this continuing financial relationship.”

It added, “Significant questions remain about Kojo Annan’s actions during the fall of 1998 as well as the integrity of his business and financial dealings with respect to the oil-for-food program.

The UN was criticized for being lax in not asking Cotecna to submit a bid that would have shown the financial strains on the company at the time. The Volcker Commission also found that there was improper shredding of documents by Secretary General Annan’s chief of staff, after Annan had ordered documents to be preserved.

Which goes to show that the UN is like any other large organization, such as a government or a corporation: it is susceptible to abuse by its insiders. What comfort we can take from this, though, is the sense that the UN is cleaning house and increasing the levels of accountability that should be expected from it.

On the topic of accountability, more generally, see this post from Suzanne Nossel at DemocracyArsenal on responding to the UN sex scandal.

Hotel Guantanamo? Detainees Can Check Out, but They Can Never Leave

by Julian Ku

My ubiquitous colleague Eric Freedman, who has in the past 10 days testified on the Terry Schiavo case before Congress and consulted in the Medellin case, passes along this info about yet another one of his cases. Judge Henry H. Kennedy of the D.C. federal district court has granted a preliminary injunction preventing the Defense Department from transferring a group of 13 Yemeni nationals (whom he represents along with Covington and Burling) being detained in Guantanamo Bay until their habeas claims are fully resolved in federal court. It may seem odd that the lawyers for the Yemenis are trying to STOP the U.S. government from transferring them OUT of Gitmo, but the fear is that they will be abused or tortured in their home countries.

If anything, this order is a reflection of just how much the U.S. executive branch has lost credibility with the federal courts. The Defense Department offered sworn statements by high-level officials pledging that the U.S. government would not transfer detainees to places where they would not be treated humanely. This was not good enough for the federal judge, who held that allowing the transfer of detainees would extinguish their right in habeas to challenge their executive detention.

So the Defense Department is pretty much stuck. It is unclear under current law how long it can continue to detain aliens at Guantanamo. But it is now clear that under current law, they will not be given the discretion to clear out Guantanamo either.

The full order from Judge Harold Kennedy follows below:

MAHMOAD ABDAH, et al.,
Petitioners,
v.
GEORGE W. BUSH, et al.,
Respondents.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action 04-1254 (HHK)

ORDER
For the reasons stated in the court’s memorandum docketed this same day, it is this 29th
day of March, 2005, hereby

ORDERED, that Petitioners’ motion for a preliminary injunction is GRANTED; and it
is further

ORDERED, that Respondents shall provide Petitioners’ counsel and the court with 30
days’ notice prior to transporting or removing any of Petitioners from Guantánamo Bay Naval
Base; and it is further

ORDERED, that this order shall remain in effect until the final resolution of Petitioners’
habeas claims unless otherwise modified or dissolved.

Henry H. Kennedy, Jr.
United States District Judge

More Uninformed Predictions On Medellin

by Julian Ku

Having failed to motivate myself to get down to D.C. for oral argument in Medellin, and being too cheap to shell out the money for an instant transcript, I will have to content myself with reviewing the several very interesting press accounts of the argument at SCOTUSBlog, Slate, Law.com, and the NYT. All of these accounts seem to agree that the Justices’ questions reflect no consensus on what to do with what is becoming a very procedurally messy case.

All of these accounts, however, do suggest that the Justices are not thrilled with the idea of staying the case while the state court proceeds, preferring either the “DIG” the case (dismiss, cert being improvidently granted) or reaching the merits of the case. This means maybe I was wrong in thinking that Texas was gambling by opposing the stay motion. Ordinarily, courts don’t like to reach out to decide cases with complex and difficult cases raising important constitutional issues if those cases could be decided elsewhere. This is why Medellin’s stay motion seemed like a sensible strategy. But this is the Supreme Court of the United States. Deciding complex constitutional cases that they don’t have to decide and that might otherwise be left to the states or Congress is exactly what this (or any) Supreme Court loves to do.

My initial view, after the Government’s brief was filed, was that the Court would dismiss the case and avoid the constitutional and statutory interpretation dilemmas raised by the parties in this case. The various accounts from yesterday do not lead me to change my initial prediction and also suggest strongly that no stay will be issued. The only question now seems to be whether the Court will “DIG” the case or whether they will reach out and decide the merits. Although I would prefer the Court to reach the merits and adopt the views of Texas, the U.S., and the brief of the Seven Law Professors (and perhaps cite articles by some of those brilliant professors) that treaty claims cannot be the basis for a COA giving federal appellate jurisdiction, it seems like “digging” the case is the most responsible thing for the Court to do here.

UPDATE: My colleague Eric Freedman, who knows everything there is to know about these sorts of things, points out that the Court has another option besides the ones discussed above. They could G.V.R. (grant-vacate-remand) the case back to either the Fifth Circuit or the federal district court in light of the U.S.G.’s intervention. Unlike “digging” the case, this would vacate the Fifth Circuit’s opinion in this case.

The only problem with this option is that it is not at all clear if the Fifth Circuit’s opinion in this case is wrong, even in light of the S.G.’s brief and the President’s executive order. So vacating that opinion may not be what the court wants to do if they want to remain agnostic on whether or not there is indeed a federal judicial remedy for Medellin here. On the flip side, “digging” the case would essentially leave in place a decision going the other way on the question of a federal judicial remedy.

So maybe they should reach the merits after all…

UPDATE No. 2: I’ve changed the last sentence of the original post to correct a misstatement I made that Carlos Vazquez pointed out to me. No one is arguing there is not federal habeas jurisdiction at all, for a treaty based claim (that was my original misstatement), rather that federal statutes now limit appeals from federal district courts to constitutional rather than statutory and treaty based claims. A small but important difference.

Does International Law Threaten the U.S.?

by Chris Borgen

Professor Barry Carter of Georgetown University Law Center recently posted onto the American Society of International Law’s listserve that the 2005 National Defense Strategy, undersigned by Secretary of Defense Rumsfeld states the following in the section assessing America’s vulnerabilities:

Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”
(At page 5 under “Our Vulnerabilities.”)

While one can take this statement as an observation that international dispute resolution is effective and that it is more likely to be used by militarily weak states than by militarily strong states, I have my doubts as to whether that was the sum and substance of what the DOD was trying to convey. Rather, the cataloguing of international fora and judicial processes along with terrorism is probably a fair indicator of the views of at least some in the current Admistration on international law dispute resolution.

As I’ve said before, this knee-jerk anti-internationalism causes missed opportunities: international institutions are neither good nor bad, per se, but they can be effectively designed and managed to further our national interest (as well as the interests of other like-minded states).

This Administration seems to be particularly hostile to international dispute settlement (wave good-bye to the Consular Relations Optional Protocol) and, to a slightly lesser extent, to multilateralism in general. Regarding Admisitration views on multilateralism, I do note that the National Defense Strategy lists other states wanting to join “our system of alliances and partnerships” as an opportunity. Faint praise, but perhaps some recognition of the uses of multilateralism. Hostility to internationalism as a strategy is short-sighted. But actually listing international legal processes along with terrorism as a vulnerability is a sad comment on the current state of affairs.

Medellin’s Day in Court

by Julian Ku

Today, the Supreme Court finally hears oral argument in the Medellin case. I don’t have much more to add than what SCOTUSBlog has reported here, but it strikes me that Texas is again in a very difficult position, mostly because of their own high-risk litigation strategy and also because of Medellin’s clever and effective approach.

By filing a motion to stay the proceedings until it pursues its remedies in Texas court, Medellin has put itself in the position of being the reasonable party seeking to pursue its remedies as provided by the ICJ and now the executive branch in state court. Texas is in the odd position of making arguments about the federal judicial enforceability of the ICJ order that may not matter because even if Texas wins, a Texas court might still require Texas to comply with the President’s order in a subsequent proceeding. So they might very well be wasting the Court’s time. And that can never be a good position for an advocate before the Court.

I say all of this even though I think Texas is right that there is no judicial enforceability of the ICJ order. But the strongest element of its case against judicial enforceability is precisely the argument it doesn’t want to make: that no judicial enforceability is necessary because the Executive will enforce the order.

I would be shocked if the Supreme Court reaches out to decide this case in the face of Medellin’s desire to go back to state courts and the Executive’s intervention to take responsibility for enforcing the ICJ order. If the Court nonetheless plows ahead, it would be a remarkable (and in my view ridiculous) assertion of judicial control over foreign policy not in the absence of executive action but in the face of it.

Viennese Internationalism

by Julian Ku

Readers of my skeptical blog posts on internationalism (here and here) might be surprised and amused that I spent the past week in the heart of Old Europe at a classically internationalist confab: the Willem C. Vis International Arbitration Moot Competition. The Vis Moot draws students and lawyers from 47 different countries to Vienna to participate in arbitration “moots” involving problems applying the United Nations Convention on Contracts for the International Sale of Goods (CISG). But despite my anti-internationalist proclivities, I had a great time in Vienna that was only partly related to the rather embarrassing amounts of bier and bratwurst I consumed.

Indeed, the Vis Moot reminds me the ways in which internationalism can and should matter. My students can and do benefit from making arguments against and before foreign lawyers because they learn how to communicate effectively across legal/cultural boundaries. The Vis Moot simulates a dispute between companies in two foreign countries who agree to have their dispute resolved under the CISG (an international treaty) and before a private arbitration tribunal. My students must draft briefs drawing on these international sources aimed toward a panel of arbitrators with diverse national and professional backgrounds. Even if they never practice before non-Americans again, this type of advocacy training is, in my humble opinion, enormously valuable because it challenges U.S. law students to think outside the box of the Federal Reporter and the Federal Rules of Civil Procedure and develop more flexible and adaptable advocacy skills.

But even beyond the actual competition, the Vis Moot is famous for its intense nightly socializing to all hours of the morning. The opportunity to meet with lawyers and law students from five continents is quite an experience, but the opportunity to down tequila shots with German and Australian lawyers at three in the morning is quite another (this is of course a purely hypothetical example which I did not necessarily partake in). This social experience reminds me of how much lawyers from widely different backgrounds still share in common and how it is possible to build personal and professional relationships across these national and cultural borders. And these kinds of relationships (even the drinking) are fundamental to the development of an international bar of lawyers practicing in the field of private international law, that is to say, private business transactions taking place across international borders. The Vis Moot is, in a sense, training the next generation of this international bar expanding the roster of lawyers beyond Western Europe and the U.S to include Asia, Latin America, and Eastern Europe.

This sort of “private internationalism” is probably inevitable but it is also, in my view, highly welcome. Internationalism, in its most attractive sense, is about the interaction of private individuals and groups across borders rather than governments. The goals and aspirations of private individuals should drive greater international cooperation rather than the other way around. The role of governments and international organizations is to facilitate these kinds of private interactions. The creation of an international bar of private lawyers specializing in private international transactions is just one part of this process of international private interactions, but it is a fascinating and important one.

The Long Road to Democracy

by Chris Borgen

Daniel Drezner has a post (and there are some equally interesting comments) on the ousting of the President of Kyrgyzstan. He asks whether the news from Kyrgyzstan and the recent events in Lebanon, Egypt, Iraq, and Afghanistan are the first hints of a new “wave” of democratization, in the sense popularized by Samuel Huntington’s book The Third Wave.

I hope that we are witnessing a Fourth (or Fifth?) wave of democratization. However, I have concerns as to whether this is in fact a long term shift to democracy that we are witnessing. And I have even greater concerns that democracy doesn’t come in waves but rather is arrived at after walking a long and idiosyncratic path in each country.

As for whether there is a general shift to democracy taking place, I think we need to temper our optimism with a little caution. For one thing, some of the “reforms” seem more like window-dressing than anything substantive. Egypt’s reforms might be in this category.

Moreover, democratization often leads to instability in the short-run; whether instability or stable democracy defines the long term is an open question. Iraq and Afghanistan are the obvious examples of the concern over long-term stability. With the recent increase in bombings and counter-demonstrations, Lebanon may slip into this category as well.

And, on top of this, the U.S. can still “lose the peace” if it is not vigilant. The short-changing of democratization and stabilization initiatives in Afghanistan is an example of exactly the type of foreign policy we do not want. Nurturing democracies in post-conflict situations is a long, delicate, and expensive process. In Afghanistan, we lost our concentration as we moved on to Iraq. Rather than a beacon of what democracy can do to free a people, it is in the process of becoming a cautionary tale of how hard-won gains can be quickly lost. Iraq is a work in progress, of course, but some of the current indicators are not very good, as discussed in this recent report by the Center for Strategic and International Studies. Then there is Pakistan

And, while we are getting enthused about the Fourth Wave of democratization, let us not forget about the Third Wave. We like to remember the vindication of the generation of ’56 in Hungary and the Velvet Revolution in Czechoslovakia and the triumph of Solidarity in Poland, but let’s also talk about democracy in Russia, Romania, Bulgaria, Serbia, Bosnia, Croatia, and Albania. Where democracy has taken root in these countries it was not from some unstoppable process but because of a hard fought political battles and, in certain cases, international military intervention and significant financial and technical support. Overall, in all of these countries, whether or not democracy took hold had less to do with a wave and more to do with history, political culture, and, at times, international interest and support.

I hope we are seeing an inexorable spread of democracy. That would be nice. But I wouldn’t bank on it, it is much too early to tell, anyway. However, if we really want to make the world safe for democracy, as opposed to making the world safe for foreign investment, then we better decide to gear-up for the long road ahead and find the travelling companions that we will need to see this through.

The Pinochet Saga Continues (plus a few thoughts on Universal Jurisdiction)

by Chris Borgen

In the ongoing saga of Augusto Pinochet, the Supreme Court of Chile found that he had Head of State immunity that prevented from his being prosecuted for the killing of his predecessor, General Carlos Prats. See the BBC report here. Pinochet is also being investigated for human rights abuses under Operation Condor, which persecuted and killed left-wing opponents during the 1970’s, as well as for tax evasion. There needs to be a separate immunity determination for each case. His immunity has been stripped for the Operation Condor case.

As many readers may remember, the current spate of cases in Chile were in part spurred by the attempted prosecution of Pinochet for his activities in Operation Condor by a Spanish judge using universal jurisdiction. As Pinochet was visiting London at the time, the Spanish authorities filed an extradition request with the U.K., precipitating a series of cases in the U.K. over the extradition request, and the role universal jurisdiction more generally. The case had resulted in his being found extraditable (due to treaty obligations) for certain specific crimes, but he was not extradited because he was found to be unfit for trial. Upon return to Chile, the Chilean Supreme Court found him fit for trial and stripped him of immunity.

Universal jurisdiction is the controversial doctrine in which there can be jurisdiction by any court over certain crimes due to the nature of the crime itself (rather than because of it having occurred within the territory or by or against a national of the prosecuting country). Universal jurisdiction has been used in cases of torture, slave-trading, genocide. It is alsor used, in modified form, in anti-terrorism laws.

Some have argued that universal jurisdiction can lead to judicial overreaching and the frustration of diplomatic solutions; see Henry Kissinger’s (a frequent target of universal jurisdiction suits) argument here. Human rights advocates counter that political checks on courts have prevented such overreaching and that, more importantly, universal jurisdiction is one of the best ways to end impunity in countries that neither have operational (or credible) courts nor the geopolitical interest that leads to the creation of ad hoc international tribunals. See Kenneth Roth’s response to Kissinger and the Amnesty International backgrounder. The International Criminal Court, by the way, has been supported as an internationally-accountable mechanism that would eclipse the need of universal jurisdiction by domestic courts.

UN better than US at Peackeeping and Nation Building?

by Peggy McGuinness

Last week’s Economist has this excellent article (sub. req’d) summarizing some important empirical studies being done on failed states and post-conflict state building. The conclusions of a raft of recent studies give grounds for optimism: failed states and those on the brink of failure (sometimes called “Low-income countries under stress” or LICUS) can be saved with relatively low investments in peacekeeping and aid. The article discusses a recent RAND study that concludes that the UN is pretty good, on balance, at post-conflict peacekeeping. Maybe better than the United States:

Of the eight UN-led missions it examined, seven brought sustained peace (Namibia, El Salvador, Cambodia, Mozambique, Eastern Slavonia, Sierra Leone and East Timor), while one (in Congo) did not. An earlier RAND study had looked at eight American-led missions and found that only four of the nations involved (Germany, Japan, Bosnia and Kosovo), were now at peace, while the other four (Somalia, Haiti, Afghanistan and Iraq) were not, or at any rate, not yet.

The comparison is not entirely fair. The Americans took on tougher targets: Iraq has more suicide-bombers than East Timor. On the other hand, the UN had punier forces and budgets at its disposal. The annual cost of all 11 UN peacekeeping operations today is less than America spends in a month in Iraq.

The full RAND study can be found here. It is an impressive quantitative effort, with important lessons for current and future crises. For example, it gives emprical support for the view that the group that brings about peace, either through political processes or through prosecuting the war, is often not the best party to secure the peace and bring good post-conflict governance. (In practice, we tend to make the error of assuming every conflict is like Germany or Japan and needs a robust US-style occupation and “Marshall Plan.” )

As the Economist points out, there a places in the world where the UN is the only good governance (or best governance) they have ever known. In discussions about UN reform, we need to keep in mind those things the UN is good at –and work to strengthen those capacities –and those the UN is bad at — and get them off the UN agenda.

Customary International Humanitarian Law: ICRC Rules Issued

by Peggy McGuinness

After a ten-year process, ICRC published this week its report on the rules of customary international humanitarian law (“CIHL), i.e., customary law governing conduct during war. The full report can be downloaded here. Advance warning: I’ ve been told from a reliable source in Geneva that the bound version weighs in at 300 pounds! State practice takes up one volume; opinio juris (sound familiar?), the sense of legal obligation that makes state practice into customary international law, takes up another volume.

The stated purpose of the report is to provide the rules of customary international humanitarian in order to fill the gap in the current treaty system and determine the rules that apply to:

(1) states that are not parties to the Geneva Conventions of 1949 and both additional protocols thereto and/or are not parties to other conventions regulating the use of certain weapons (e.g., the Biological and Chemical Weapons Conventions; and
(2) wars that are not international in nature, since the major conventions only regulate, more or less, international or interstate conflict.

Needless to say, I haven’t read the entire report, but it is bound to stir up controversy, and not just among those who, like John Bolton, believe CIL is not really law. The report reflects an impressive amount of research into state practice and the conduct of recent wars, and as such is an excellent reference tool, a kind of “restatement” of the laws of war. Lawyers for the Guantanamo detainees will find it particularly helpful, as it sets forth quite clearly the argument that the Geneva Conventions represent, in effect, a legal floor for conduct and that CIHL has expanded beyond the conventions to include a range of other legal norms.

No Sovereignty for Oil?

by Julian Ku

This and other reports indicate that the oil industry is jumping on board the Law of the Sea Treaty bandwagon, setting up a battle between two key Republican constituencies: the energy industry and conservative intellectuals.

According to this report, oil development companies will not invest in risky undersea oil exploration efforts until property rights over such ventures are settled. But settling undersea property rights with neighboring countries such as Russia and Canada may be difficult since both countries are members of the Law of the Sea Treaty already.

I’m not sure why the U.S. can’t simply sign bilateral agreements with Russia and Canada to settle any disputes over undersea development rights. But I suppose it would be easier to join the existing Law of the Sea framework because those two countries have already agreed to those rules. If so, then this seems like a very strong policy reason to join the Law of the Sea Treaty, notwithstanding continuing objections from leading conservatives. I’m still not 100 percent sure on whether joining the Law of the Sea Treaty is a good thing, but I am certainly leaning heavily in that direction.

ICC Watch: Ugandan Leaders Seek Delay in Arrest Warrants

by Julian Ku

As I sip my half pint of Weiznenbier “Edelweiss” here at Cafe Leopold in Vienna, I thought I would blog a few short posts using the cafe’s free WLAN:

Representatives from North Uganda visited the Hague last week to ask the ICC to hold off on arrest warrants for leaders of the Lords’ Resistance Army. As I have noted before, the Uganda situation presents the ICC with an important first test of its political (rather than legal) judgment. Should the ICC issue arrest warrants here? Or should it hold back to allow Ugandans to work out a settlement with the alleged war criminals that may end up saving many more lives? I don’t know what the right decision is, but I am fairly confident any decision the ICC makes should not be governed by strict legal principles, but with a healthy sensitivity toward the political issues involved here.

Annan to Propose Reforms Today: Human Rights Commission to be Scrapped

by Peggy McGuinness

Kofi Annan is scheduled to announce in a talk to the General Assembly today that he will push for major reform at the UN, including replacing the HR Commission with a HR council, expanding membership of the Security Council from 15 to 24, making troops serving UN missions accountable for their crimes, redefining terrorism and adopting an agressive nonproliferation system. I will blog more on each of these separate points after I have read the entire release. But I have a couple of initial reactions. I am not as optimistic as Annan and Julian that there is currently any shared understanding of “terrorism” such that the entire UN membership can sign on to Annan’s proposed definition of terrorism, which he adopted from the recommendation of the Panel on Threats, Challenge and Change. (For a round-up of critiques — some arguing the proposed definition is too broad, some that it is too narrow — see this discussion in the latest ASIL newsletter.) As to Security Council membership, the devil is in the details. Will there be an additional permanent member with a veto? Or two with rotating membership? For now, I think it appropriate to recognize the boldness and seriousness of Annan’s plan; this is the most ambitious reform program ever put forth in the history of the UN. Stay tuned.

George Kennan, 1904-2005

by Chris Borgen

George Kennan, one of the architects of “containment” policy during the Cold War, passed away yesterday in Princeton at the age of 101. See the Washington Post story and the NY Times story. Kennan’s writing was erudite, stylish, prolific, and influential; his “Long Telegram” written as a foreign service officer shaped the views of government policymakers on the Soviet Union and his “X Article” in Foreign Affairs in 1947 did the same for public opinion more generally.

Kennan was one of the parents of modern realism. His critique of “legalistic/moralistic” foreign policy-making is famous. Anyone interested in his views of foreign policy more generally should read American Diplomacy, one of the great short works of realist thinking (and another of the International Law “Must Reads” ).

Influential or not, Kennan’s views were not always easy to swallow. As the Washington Post reports:

Believing as he did in a limitless human capacity for error, Mr. Kennan was an unabashed elitist who distrusted democratic processes. Walter Isaacson and Evan Thomas reported in their book “The Wise Men” that he suggested in an unpublished work that women, blacks and immigrants be disenfranchised. He deplored the automobile, computers, commercialism, environmental degradation and other manifestations of modern life. He loathed popular American culture. In his memoirs, he described himself as a “guest of one’s time and not a member of its household.”

Beyond his criticism of international law, one wonders what Kennan would have made of current American foreign policy. The Washington Post continues:

A touchstone of his worldview was the conviction that the United States cannot reshape other countries in its own image and that, with a few exceptions, its efforts to police the world are neither in its interests nor within the scope of its resources.

“This whole tendency to see ourselves as the center of political enlightenment and as teachers to a great part of the rest of the world strikes me as unthought-through, vainglorious and undesirable,” he said in an interview with the New York Review of Books in 1999.

“I would like to see our government gradually withdraw from its public advocacy of democracy and human rights. I submit that governments should deal with other governments as such, and should avoid unnecessary involvement, particularly personal involvement, with their leaders.”

You could fill a couple of book cases with books by or about George Kennan. For biography, I suggest Walter Isaacson’s and Evan Thomas’ The Wise Men, a joint biography of Kennan, Dean Acheson, John McCloy, Averell Harriman, Robert Bohlen, and Robert Lovett. It is an outstanding history of the Cold War as well as an insightful biography of these men.

More generally, on American strategic thought during that era and on how Kennan’s views diverged from containment policy in practice, see John Lewis Gaddis’ Strategies of Containment. See also Gaddis’ essay, “Reconsidering Containment.”

A brilliant and complex man whose skepticism led to both useful and useless (or worse) theories and prescriptions, Kennan was marked by, and left his mark on, the twentieth century.

China, Taiwan, and Law as Pre-Commitments

by Julian Ku

Various blogpundits are warning that China’s new anti secession law is just a prelude to a pending invasion of Taiwan. As a descendant of a Taiwanese mother and Chinese father, with friends and relatives on both sides of the Taiwan Straits, I’ve been worried about such a conflict breaking out for years. On the other hand, since people have been telling me about this impending invasion since I was 3 years old, I am not exactly panicking.

Putting aside my personal interest, the China-Taiwan crisis is also an interesting study in the use of law as a pre-commitment device in the conduct of international relations. For instance, why does China even bother with passing a law that requires the government to use “non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity” if Taiwan declares independence? (it’s even scarier in the original Chinese: 非和平方式及其他必要措施,捍卫国家主权和领土完整)

That already has been the policy of China for decades and I don’t think anyone will try to sue to enforce this law against the government. The anti-secession law is a pre-commitment device: it signals to the Taiwanese that even if our leadership goes wobbly, this law will require them to act against you.

China is not the only country using law as a pre-commitment. The U.S. also has a weird law called the Taiwan Relations Act that requires, in the event of a threat to Taiwan, that the “President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.” This law requires the U.S. government to do what it already does anyway and, in fact, requires almost nothing, but it signals to the Chinese that the U.S. will take an attack on Taiwan a lot more seriously.

Even Australia and New Zealand may have unwittingly signed a pre-commitment to Taiwan in their ANZUS mutual defense treaty with the U.S. Article IV requires the countries to deem an “ armed attack in the Pacific Area on any of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes. “ But Article V defines “armed attack” as including attack on a treaty party’s “armed forces, public vessels or aircraft in the Pacific.” Well, suppose the U.S. Navy is attacked by Chinese forces invading Taiwan. Seems like an “armed attack” to me.

None of the laws or treaties mentioned here are justiciable in any court I can think of. Nor should they be. In fact, these examples should remind us that not all law is about enforcement and courts or even the “rule of law”. Sometime law is expressive and symbolic. But this does not mean these laws and treaties are utterly meaningless. In fact, they illustrate the importance of using law and treaties as a signaling device or a pre-commitment device. In the case of the China-Taiwan Question, such laws and treaties usefully signal how far each side will go and, perhaps, help to maintain the precarious balance of power in the region.

On to Vienna

by Julian Ku

I will be accompanying Hofstra’s team to Vienna over the next week to compete in the Willem de Vis International Moot Arbitration Competition. This competition is actually a remarkable competition that draws 140 plus teams from around the world. My blogging will therefore be light or perhaps non-existent during that time, but I may break in periodically with dispatches from the competition.

International Law "Must Reads"

by Chris Borgen

We here at Opinio Juris are planning to compile a list of what we consider to be “must reads” for anyone interested in international law. Until we build that part of the site, and because we have received some recent questions from readers as to what we would put in that category, I wanted to post an incomplete and somewhat idiosyncratic list of some books and articles I think anyone specializing in international law should be familiar with. (For the sake of space and time, I do not include primary sources here.)

This version of the list will focus on public international law. At some later date we will include more works related to international trade and economic law, private international law, and other topics of interest.

I encourage interested readers to use the comment function below to post suggestions as to other books or articles (or films?) that we should include. Julian and Peggy may also post some further suggestions before we actually build this section for the website.

So, until then, here are some of my suggestions…

General Overview Texts

Restatement of the Law (3rd) of the Foreign Relations Law of the United States. Not agreed upon by all U.S. lawyers, but about as close to a definitive statement on the status on international law in the U.S. (as of the late 1980’s, at least) as you are going to get.

Louis Henkin, How Nations Behave (2d ed. 1979). Dated now, but a seminal work on modern international law.

Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994). Lucid discussion of the international legal system; influenced by the Laswell/McDougal/Reisman Yale Policy School. Rosalyn Higgins is currently a judge on the ICJ.

Three Classics

Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1624). The so-called “father of international law” was also the general counsel (for lack of better term) of the Dutch East India Company. Almost everyone cites to it, not many people have recently read it.

Emmerich de Vattel, The Law of Nations (1758).

Jeremy Bentham, Principles of International Law (1789). He coined the term “international law.”

Influential Treatises

Oppenheim’s International Law (9th ed., 1992, Robert Jennings and Arthur Watts, eds.). Magisterial. A great place to start on just about any question of public international law. Many scholars also like to refer to the Seventh or Eighth Editions, published in 1948 and 1955, respectively, and edited by Sir Hersch Lauterpacht, then-professor at Cambridge University and soon to go on to be a judge at the ICJ.

Ian Brownlie, Principles of Public International Law, (6th ed., 2003).

James Brierly, The Law of Nations: An Introduction to the International Law of Peace (1963).

History of International Law

S.A. Korff, An Introduction to the History of International Law, 18 Am. J. Int’l L. 246 (1924).

Martii Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law: 1870-1960 (2002). A fascinating account of the evolution not so much of international law but of the international legal profession during this period.

Modern Theoretical/Jurisprudential Works of Note

Thomas M. Franck, The Power of Legitimacy Among Nations (1990)

Thomas M. Franck, Fairness in International Law and Institutions (1995)

I think Franck is currently the deepest thinker on jurisprudential problems of the international legal system. These two books get to core issues as to why international law is (or is not) followed and issues of fairness in the international legal system. I especially like The Power of Legitimacy for the way it explains how rules become perceived as legitimate and that this legitimacy motivates state compliance. It is an alternative to the standard (and in my view not always accurate) explanation that rules are followed only because of the credible threat of coercion.

Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995). This is one of the major works of “transnational legal process,” along with Harold Koh’s articles listed below. While Koh focuses on litigation issues, the Chayeses look at the role of international regulatory regimes in shaping a modern understanding on international law. By the way, Abe Chayes was State Department Legal Adviser under President Kennedy and Toni Chayes was Undersecretary for the Air Force in the Carter Administration.

Anne-Marie Slaughter, A New World Order (2004). This brings together her analyses on international regulatory coordination, transnational judicial dialogues, and other cross-border relations in a portrait of “disaggregated world order.” She paints a compelling picture on how law is used in a variety of settings that may not normally be considered as part of classic international law and yet defines this “new world order.”

Harold Hongju Koh, Bringing International Law Home, 35 Hous. L. Rev. 623 (1998). A crucial article in laying out his theory of “transnational legal process” and how international and domestic legal regimes interact. His discussion of how international rules become internalized in domestic law and politics is excellent. This is one of those all-too-rare articles that, as I finished reading it, just seemed to have the ring of truth.

Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996). A precursor article related to “Bringing International Law Home.”

Eric Posner & Jack L. Goldsmith, The Limits of International Law (2005). Posner and Goldsmith are prominent critics of mainstream international legal scholarship. Their book addresses what they see as false assumptions and conceptual biases in much current international legal scholarship. I don’t necessarily agree with their argument but it is thought-provoking and anyone interested in international law should assess their argument for themselves.

I couldn’t mention the Posner and Goldsmith book without also noting the debate that raged over the role of customary international law in the U.S., sparked by a series of articles that Goldsmith had written with Curtis Bradley. Their argument was notably set out in
Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).

In response to this line of criticism, see, among other responses,
Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev 1824 (1998).

Martii Koskenniemi, From Apology to Utopia (1989). This book is the antecedent to The Gentle Civilizer of Nations, which I mentioned above. It is a more theoretical discussion of the need of international lawyers to not be overly-technical but rather to use social theory to assess the “deep structure” of international legal discourse. As with his later book, this work is more concerned with how international lawyers do what they do than with the substantive content of international law.

Giving the Finger to Japan

by Julian Ku

Two South Korean protesters, one an elderly woman, cut off their fingers in front of the Japanese Embassy in Seoul to protest Japan’s claim to an obscure rocky uninhabited island off the Korean and Japanese coasts.

In fact, there is a bit more at stake in the territorial dispute than it seems because, apparently, control of the uninhabited rocks will also control the rights (per that useful Law of the Sea Treaty) to 16,600 square nautical miles of sea and seabed and significant mineral and oil deposits.

Still, this rather dramatic protest should remind dreamy (often European) internationalists waiting for the inevitable decline of the nation-state that fervent nationalism is alive and well, even in wealthy, developed, democratic countries.

Darfur Deadlock Update: Nigeria Proposes African Alternative to ICC

by Julian Ku

Reuters reports that Nigeria is proposing an African court to try war crimes arising out of the Darfur crisis in Sudan. This may break the continuing deadlock (which I first discussed here)between the EU and the U.S. over whether the Security Council should refer Darfur to the ICC. Nigeria’s proposal is exactly what the U.S. has been looking for. Whether this will convince the Europeans (or the Chinese, who oppose action on Darfur for other reasons) is unclear, but it appears to be a (small) diplomatic victory for the new Secretary of State.

ICC Watch: Court Holds First Hearing

by Julian Ku

The ICC held its first hearing yesterday, a status conference, on the investigation by its prosecutors of crimes committed in Democratic Republic of Congo. “It is the first time the International Criminal Court, which began work almost three years ago, is formally studying a specific war crimes investigation.” Interestingly, the ICC’s current docket consists exclusively of African investigations: Ivory Coast, Uganda, and the Congo. This may reflect the reality of the problems facing some parts of Africa, but it may also reflect the influence of international politics on the ICC. Until it builds up some credibility, it should probably avoid more controversial cases (although, as I’ve pointed out, not all the African cases are uncontroversial either).

Guantanamo Primer

by Chris Borgen

Lyle Denniston at SCOTUSBlog has written a useful primer on the Guantanamo cases moving through the courts.

The Washington Post Endorses Withdrawal from the Optional Protocol

by Julian Ku

The Washington Post weighs in today with a surprisingly sensible editorial applauding President Bush’s decision to withdraw from the Optional Protocol to the Vienna Convention on Consular Relations (which I discussed here).

Were the Optional Protocol a useful instrument in protecting Americans abroad, it might make sense to tolerate the international court’s presumptuousness. But the protocol doesn’t help much. Most countries never signed it, and the chief protection against treaty violations has always been diplomatic pressure, not the possibility of international litigation. Withdrawing from the protocol does not change U.S. obligations under the Vienna Convention or the reciprocal obligations of states toward American nationals. The Optional Protocol was never meant to regulate the domestic judicial systems of its signatory states. The administration is right not to stand for the international court’s attempt to do so now.

This editorial avoids the knee-jerk internationalism that one might expect from publications like the NYT and takes the right approach: if the Optional Protocol doesn’t really serve U.S. interests, and it is costly in terms of continuing litigation, then it is entirely reasonable to pull out.

Here Comes DR-CAFTA

by Julian Ku

Reports indicate the President is planning to submit DR-CAFTA to Congress in the next few weeks. This will trigger the 90 day clock for approval. This report suggests the President is still 20 votes short in the House. Get ready for a trade fight!

Texas Rolls the Dice

by Julian Ku

Lyle Denniston at SCOTUSBlog usefully analyzes Texas’s latest salvo in the ongoing battle over what to do with the Medellin case in the Supreme Court now that the President has sided with Medellin. Somewhat to my surprise, Texas is opposing Medellin’s motion for a stay pending its state court litigation (which was prompted by the President’s executive determination discussed here). But on second thought, this strategy probably makes sense.

Although I suggested that Medellin would probably win his motion for a stay, I wondered at the time whether the Supreme Court would simply dismiss the case completely finding that cert was improvidently granted. After all, if Medellin loses again in the state courts, he can come back to the Supreme Court if and when that happens. In the meantime, there seems little reason for the Court to “stay” the case because the issue at that point would be very different. Rather than resolving whether the Court has jurisdiction and the power to enforce the ICJ judgment, the issue in the future would almost certainly be the effect of the president’s determination that Texas courts should enforce the ICJ judgment.

What does surprise me is that Texas did not respond by asking the Court to dismiss the case on the theory that I just outlined. Instead, it asks for the Court to continue to hear the case. This suggest Texas is quite confident it will win (or at least not lose) in the Court. Texas is right to be confident that it will win a narrow ruling from the Court holding that there is no federal appellate jurisdiction for treaty-based claims. As I suggested earlier, the Court is not likely to stretch the law to allow federal courts to hear a case that the President says he is taking care of.

But there is always the risk that the Court will go crazy and decide (1) that it has jurisdiction; and (2) that it should find itself bound by the ICJ judgment. If that happens, it is game set match, for Medellin. At least Texas can try to challenge the Executive order on federalism grounds. But if it loses here, such a challenge won’t matter much because the Courts will order them to give hearings anyway, whether or not the executive order is effective.

Kosovo PM Not Guilty Plea and Other News from the ICTY

by Chris Borgen

As I had already posted, the Prime Minister of Kosovo, Ramush Haradinaj, was indicted by the International Criminal Tribunal for the former Yugoslavia for his actions as a commander of the Kosovo Liberation Army. CNN is now running an informative update on Haradinaj’s not-guilty plea on 37 counts and on the case in general.

In other ICTY news, Gojko Jankovic, a Bosnian Serb who was a paramilitary leader south of Sarajevo during the war surrendered to Bosnian Serb authorities and has been transferred to the Hague. The BBC report is here; the ICTY Press release here. The BBC reports:

Both Serbia and Croatia have been under renewed pressure since Kosovo’s former Prime Minister, Ramush Haradinaj, won international praise for his immediate surrender when he was indicted last Tuesday.

Our correspondent says Serbia’s record is poor. More than a dozen indictees are still thought to be on Serbian soil.

Does President Bush Hate to Sign Treaties?

by Julian Ku

Just in case the Bush Administration’s recent diplomatic initiatives were in danger of changing the President’s image, the LA Times reports on a new study finding that President Bush has signed fewer treaties at this point in his term than his predecessor Bill Clinton and even than his father.

Now President Bush may indeed be unilateralist, and even anti-internationalist (and that is not necessarily a bad thing) but this deeply flawed study does little to support this view. Why?

(1) The study is based on 550 treaties, the vast majority of which are deposited with the U.N. But by focusing on these treaties, the authors are already privileging multilateral treaties over bilateral treaties including extradition, trade, and investment treaties. Why don’t the U.S. and President Bush get “credit” for signing and ratifying bilateral treaties such as the U.S.-Australia Free Trade Agreement or the U.S.-Russia Strategic Offensive Reduction Treaty?

(2) The study focuses on treaties rather than on the main form of international agreements made by the U.S: executive agreements. In fact, executive agreements might be a better measurement because the real obstacle to treaty ratification is the Constitution’s two-thirds of the Senate requirement, which does not apply to executive agreements. In any event, to the extent the study has a point, it is that the Senate (under both Democratic and Republican leaderships), rather than the President, that is the main stumbling block for treaty ratification. And this is pretty much by design: the Constitution added a supermajority requirement precisely to make ratification of treaties difficult and the system appears to be working quite well. (note that according to the study, that crazy isolationalist Franklin Roosevelt ratified 0 treaties during his four terms).

(3) The study criticizes the U.S. government’s selectivity: it eschews labor treaties for instance, while pursuing anti-terrorism treaties. But I would actually suggest such selectivity is generally a good thing. First, it almost certainly conforms to the priorities of the voters, were they asked. Second, it suggests that the U.S. government is assessing treaties based on the individual merits of each treaty system, rather than blindly joining all treaties simply because they exist.

(4) Finally, the study assumes that signing and ratifying treaties correlates to good international behavior and not signing or ratifying treaties correlates to bad behavior. But this is a highly questionable assumption. Many not so friendly countries sign lots of treaties. North Korea and Libya, for instance, are always ready to sign, perhaps knowing that signing the treaties is essentially meaningless in such domestic systems. Oddly, then, it is the U.S. government’s respect for treaties that leads it to refuse to join such treaties unless it believes it can actually live up to those legal obligations. After all, if the U.S. were the realist blowhard many internationalist critics suggest it is, it would sign all treaties and then simply ignore all of them.

Eleventh Circuit Upholds $4 Million Alien Tort Statute Judgment

by Julian Ku

Although I noted that the U.S. Court of Appeals for the Eleventh Circuit rejected this ATS suit arising out of alleged killings in El Salvador just last week, today the same court (with different judges) upheld a $4 million judgment against ex-Chilean military officers who executed a Chilean doctor (Winston Cabello) in the 1970s (thanks to my colleague Eric Freedman for the heads up). The case may be important for future ATS litigation in two ways.

(1) In contrast to Arce, the Salvadoran case, the Eleventh Circuit here equitably tolled the 10-year statute of limitations here on the grounds that the defendants had been responsible for hiding the body of Cabello until 1990. The grounds for equitably tolling certainly appear strong here largely because they point to specific actions that prevented these particular plaintiffs from filing. In Arce, the plaintiffs alleged generally that the ongoing civil war prevented their bringing claims. As I noted then, the statute of limitations is a key defense for defendants to the ATS litigation and overly aggressive use of the equitable tolling defense (such as was tried for and rejected in Arce) could probably undercut the utility of the whole defense.

(2) The Eleventh Circuit here also endorsed the “indirect” liability theory in order to find the defendants here liable. This is a slightly different version of the “aiding and abetting” theory that has been wielded so effectively against corporate defendants in other ATS lawsuits, most notably in the Ninth Circuit. Now the analysis here is very thin and almost perfunctory, but corporations sued in the Eleventh Circuit for ATS violations should still watch out.

Impressions of Guantanamo and the Attorney-Client Relationship

by Chris Borgen

Scott Sullivan from Transatlantic Assembly has a very interesting post on first-person impressions of Guantanamo based on his recent trip there for a client representation. He also notes recent reports concerning possible attempts by the U.S. to interfere in the attorney-client relationship of the Guantanamo detainees.

Can International Law Fight Terrorism?

by Julian Ku

Critics of the U.S. government’s post-September 11 “war on terror” have a variety of complaints. One of the most salient is the “unilateral” and perhaps even “illegal” use of military force by the U.S. in its attempt to either attack terrorist groups or prevent such groups from acquiring weapons of mass destruction.

There is some force to this critique, but ultimately such critics will get nowhere unless they can offer a internationalist alternative to dealing what most reasonable people agree is a real and serious threat. But the international legal infrastructure is far more focused on restraining the use of military force against terrorism by governments.

For instance, the much vaunted internationalist hobby horse, the International Criminal Court, is much more likely to prosecute a U.S. soldier for engaging in war crimes in the prosecution of the war on terror than it would prosecute a terrorist for engaging in terrorist acts. Why? Because terrorism itself is not a crime within the ICC’s jurisdiction. Rather, terrorist acts would have to be shoehorned into one of the ICC’s other categories as a “war crime” or maybe (but not necessarily) a crime against humanity.

Indeed, as Kofi Annan pointed out last week in Madrid, there is no internationally agreed upon definition of what constitutes a terrorist act. While there is no shortage of international treaties prohibiting acts that are associated with terrorism, the “[l]ack of agreement on a clear and well-known definition undermines the normative and moral stance against terrorism and has stained the United Nations image. Achieving a comprehensive convention on terrorism, including a clear definition, is a political imperative.” So concluded a high-level panel of security experts appointed by Annan last fall.

This political imperative is likely to go nowhere because almost every Arab state opposes the definition of terrorism that prohibits the deliberate targeting of civilians, if such activities take place in an occupied territory (e.g. one that would define Palestine attacks on Israeli civilians as terrorism). These objections are reflected in these states’ (Syria, Iran, Saudi Arabia, etc) refusal to sign most of the 12 anti-terrorism treaties.

Such obstreperous rejection of basic international norms has drawn pretty much zero criticism from international lawyers, who prefer to devote their efforts to denouncing U.S. delay in ratification of the tobacco control treaty. This is not to say that international lawyers are always wrong when they argue against the use of military force against terrorism by states like the U.S. But it would be nice if just a few of those lawyers (perhaps as Chris notes here) would devote some of the same energy to fashioning an international legal infrastructure that can prevent and punish international terrorists like Al Qaeda.

Why a Little Anti-Internationalism Can Be a Good Thing

by Julian Ku

President Bush’s withdrawal from the Vienna Convention’s Optional Protocol granting the ICJ jurisdiction has startled many supporters of greater internationalism, but in the long run, I do not think this withdrawal is likely to be more than a blip as a political matter. Bigger battles are afoot.

As I noted here, Congress will likely vote this year on whether or not to withdraw from the World Trade Organization. Although this vote is likely to fail, it may serve as a symbolic rallying point for the real target: the Dominican Republic – Central American Free Trade Agreement (DR-CAFTA). Leftish groups are already massing support for opposition, and, more significantly, there is evidence that major agricultural interests are going to oppose DR-CAFTA, despite energetic Bush Administration lobbying for their support, because they are already feeling pressured by WTO judgments threatening agricultural subsidies. This is likely to be a real fight and it will likely reveal an interesting divide between liberal internationalists who value all forms of international cooperation and liberals who only support those forms of international cooperation whose policy goals they support.

On the other side, conservative groups are aggressively preparing to block ratification of the Law of the Sea Treaty. The Senate’s Foreign Relations Committee unanimously approved this treaty last year but no date for a vote in the Senate has yet been set, even though Secretary of State Rice reiterated the Administration’s support for the treaty during her confirmation hearings. Opposition to the Law of the Sea Treaty is, interestingly, largely ideological. No major industry groups oppose this treaty, even oil and mining companies who might be affected by the treaty’s regulations of deep seabeds. Rather, opposition has largely been driven by fears that ratification would result in the “loss of sovereignty” to the United Nations. Yet this opposition is very powerful and may yet prevent the treaty from coming up for a vote.

I’m predisposed to support both DR-CAFTA and the Law of the Sea Treaty (although I have greater concerns over the latter) because I am generally in favor of the policy benefits of joining both treaty systems. Still, I think this sort of frank and open political debate over the merits of particular international treaty systems is a very healthy and necessary.

Agent Orange Shocker: Weinstein Dismisses Lawsuit

by Julian Ku

I suggested last week that the Vietnamese Agent Orange lawsuit against U.S. chemical companies had a good chance of success because the presiding judge was the legendary Jack Weinstein of Brooklyn. Boy was I wrong.

Judge Weinstein dismissed the lawsuit today only 3 days after hearing arguments in the case finding that the plaintiffs had no basis for their claims under Vietnamese, New York, or international law. The stunning 233 page ruling appears to reject all of the plaintiffs’ claims, including their interesting but somewhat radical claims that U.S. use of Agent Orange violated customary international laws of the war and various treaties.

The decision is, of course, appealable. But don’t hold your breath. If the plaintiffs can’t convince Judge Weinstein, who can they convince?

U.S. Withdraws From ICJ Jurisdiction Over Consular Relations Claims

by Julian Ku

I noted rumors/reports of this below, and now the New York Times confirms that the U.S. has withdrawn from the Optional Protocol to the Vienna Convention on Consular Relations. The Optional Protocol is the provision granting the International Court of Justice compulsory jurisdiction over disputes under the consular relations treaty and the basis for Mexico’s (and Germany’s) applications to the ICJ. If the U.S. has indeed legally withdrawn from the Optional Protocol, then the ICJ can no longer hear future cases brought by other countries with foreign nationals similarly situated to Mexico’s nationals. (Update: Marty Lederman, as usual, was first to notice this article and the first to comment. Michael Froomkin has the text of the withdrawal and more comments about the timing of the withdrawal)

A couple of insta-observations:

(1) The ICJ might find that the U.S. withdrawal itself was not in conformity with international law. In particular, the Vienna Convention on the Law of Treaties (if it is accepted as customary international law) seems to prevent countries from withdrawing from a treaty unless that treaty specifies that withdrawal is permitted. Even if withdrawal is permitted (because the parties intended to allow withdrawals), the U.S. might be obligated to give at least 12 months notice before withdrawing. If so, other countries who have nationals facing execution in the U.S. could (and very well might) file cases in the next 12 months seeking to get an ICJ judgment before the U.S. government’s withdrawal takes effect. More work for my former colleagues at Debevoise & Plimpton (who currently represent Medellin and also worked for earlier ICJ cases involving Mexico and Paraguay)…

(2) A U.S. court might find that the President lacks the authority to unilaterally withdraw from a treaty and that he must get senatorial consent to any withdrawal. This has never been definitively decided by any court with the Supreme Court avoiding the question back in 1979 with several justices calling this a “political question.” So, assuming the ICJ is willing to continue to hear cases (maybe for just 12 months), this case might indeed come back to U.S. courts where the question of the legality of the President’s withdrawal could be considered again. I think if it is considered, the U.S. court will likely find that the President can indeed withdrawal unilaterally as recent practice (remember that ABM treaty?) seems to confirm.

(3) The U.S. is still party to similar Optional Protocols granting the ICJ jurisdiction over disputes involving the Vienna Convention on Diplomatic Relations and about 19 Friendship, Commerce, and Navigation Treaties. Assuming the U.S. withdrawal is effective, these appear to be the only self-executing treaties over which the ICJ continues to maintain binding jurisdiction over the United States. The United States already has withdrawn from the ICJ’s general compulsory jurisdiction. If so, the ICJ’s relevance (at least to the United States) will continue to fade and decline.

(4) My former colleague Peter Spiro has an amusing reaction in the NYT. “It’s a sore-loser kind of move. If we can’t win, we’re not going to play.” This is a fair point. On the other hand, when other countries have had real interests at stake, many of them have also withdrawn or limited the ICJ’s jurisdiction. See, e.g., France (Nuclear Tests) and Australia (seabed boundaries with East Timor). So maybe we are sore losers. But so is everyone else…

Back to Texas: Medellin Moves to Stay Supreme Court Proceedings

by Julian Ku

Medellin’s attorneys have filed a motion to stay further proceedings in the Supreme Court on the domestic effect of the ICJ’s judgment in Avena “while Petitioner pursues his remedies in Texas court, as contemplated by the President’s determination of February 28, 2005, implementing the judgment in [Avena] and the position taken by the United States in this Court.” (Thanks to Roger Alford for the heads up).

Following my suggestion last week (OK, they decided on their own, but let me try to take credit for their choice anyway) Medellin’s lawyers are declaring victory and quitting the field. This is smart, not only because they will likely get the hearing in Texas court that they want, but they probably would have lost in their attempt to have the Supreme Court enforce this judgment (due to the Court’s lack of appellate jurisdiction and for various other reasons I discuss here). I predict the Court will grant this motion, with the only question being whether the motion is stayed or actually dismissed.

Is It Unlawful to Breach a Treaty?

by Chris Borgen

A while back, Marty Lederman had posted a comment asking some probing questions on my post on the legality of the current Iraq War and on the bombing of Serbia by NATO during the Kosovo conflict (both available here). While a variety of other issues have come up in the last week, I didn’t want to let his questions go unanswered.

I want to start with the end of Marty’s comment, which focuses on the main question he had about my post:

Because there are serious ramifications for breach of a treaty, we ought to enact breaching legislation only rarely, and only after very solemn and careful deliberation. And in accord with the Charming Betsy canon, statutes should be construed, wherever possible, to be consistent with U.S. treaty obligations. But in what sense is a treaty-breaching statute illegal under U.S. law — including the Supremacy Clause?

Actually, I think Marty and I are basically in agreement: I am not arguing that a later statute that would cause a treaty breach would be illegal under U.S. law; I only argue that U.S. actions breaching a treaty would be illegal under international law.

Marty describes the situation in this way:

Congress *often* enacts “last in time” statutes that effectively violate treaties, or that breach federal contracts, or that contradict earlier statutes. In many such cases the federal government must, of course, suffer the consequences of the change in law, such as (sometimes) paying for contract breaches, or suffering international sanctions, etc. But we rarely characterize the new statute as *unlawful* simply because it violates a previous promise that we have made.

If the hypothesized domestic statute caused a breach of international legal obligations under a previous treaty then, in the sphere of international law the U.S. is acting in a manner that would be unlawful. (I am assuming here that in passing the later statute the US did not denounce or terminate the treaty by accepted procedures.) Or, perhaps more technically, U.S. actions would give rise to a claim of state responsibility.

Marty described the situation as akin to a contract breach or to passing a later statute that trumps an earlier statute. I want to walk through some of the implications of these analogies in relation to the domestic and international roles of treaties.

The contract analogy has often been used to describe some treaties, such as certain types of trade agreements. Other treaties, due to their subject matter, complexity, and/or the rights and obligations they describe, are cosnsidered to be less like contracts and more like statutes (or even constitutions); consider the U.N. Charter or the WTO Agreements.

In the end, though, treaties aren’t contracts, or statutes, or constitutions. Treaties are their own species and the various analogies that we use to describe them are only useful up to the point that they obscure rather than enlighten. (If anyone wants to read more on treaty breaches and analogies to domestic texts such as statutes and contracts, I have an article entitled “Resolving Treaty Conflicts” coming out this Spring in the George Washington International Law Review on this topic.)

So while Marty says that the later statute may cause a contract breach (which is not illegal) or may simply supercede an earlier statute (which is not illegal domestically, it is merely a change in law), I don’t think either analogy is applicable in the international arena for the fact pattern we are discussing. By breaching a treaty, the U.S. isn’t merely breaking a contract. Domestic U.S. jurisprudence allows for parties to breach contracts without making such actions illegal because contracts are merely private methods for parties to order their affairs within the confines of an overarching legal system. Treaties, on the other hand, are recognized as a key source of law in the international legal system. While contracts are within a domestic legal system, treaties are a large part of the international legal system, itself. Thus, in domestic law, we accept the “efficient breach” of contracts (breaches that lead to economically efficient results), but in the international system, the default rule is pacta sunt servanda, “the agreement shall be observed.”

Similarly, while a later U.S. statute may simply supercede an earlier treaty for domestic purposes, this analogy breaks down when applied internationally. While the treaty is an instrument of international and possibly domestic law-making, the statute is an instrument of only domestic law-making. Thus, regardless of the domestic legal change caused by the later statute, at the international level we do not have a change of law but a unilateral breach giving rise to state responsibility.

So, in sum, a later domestic statute would countrol over an earlier treaty and be perfectly legal domestically. If, however, the U.S. is consequently breaching its international obligations, then the U.S. behavior would be seen as unlawful in regards to its international obligations.

(And, by the way, there’s a whole other set of issues concerning whether a breach would require actual state practice in contravention of a treaty–enforcing the later in time statute–or whether the mere act of enacting the statute (whose enforcement would be a breach) would itself be an anticipatory breach. If that interests you, I would refer you to my forthcoming article mentioned above…)

U.S. Withdraws From Vienna Convention Optional Protocol?

by Julian Ku

There are rumors and/or reports that the U.S. will withdraw today from the Optional Protocol to the Vienna Convention for Consular Relations. If true, this would probably bring to an end the litigation before the International Court of Justice on foreign nationals’ rights who are facing death sentences in the United States. But it would raise lots of legal questions.

I will post more as soon as I get confirmation, although I’ve heard some intimations from a variety of sources that this might happen.

Indictment of the Prime Minister of Kosovo by the Yugoslav War Crimes Tribunal

by Chris Borgen

The International Criminal Tribunal for Yugoslavia has indicted the Prime Minister of Kosovo, Ramush Haradinaj. Such a move had been rumored and Haradinaj had said that he would resign from office if indicted. On Tuesday he did just that. Although the substance of the indictment has not yet been made public; it is understood to stem from alleged incidents in 1998-1999, when Haradinaj was a commander in the Kosovo Liberation Army. He maintains his innocence of any charges and has gone to the Hague to cooperate with the tribunal.

In the State Department’s press briefing on Tuesday, the State Department spokesperson said that

[t]he United States welcomes Mr. Haradinaj’s stated readiness to go to The Hague tomorrow. We call upon the people of Kosovo to refrain from any violence and we reiterate the importance of continuing to work on the standards for Kosovo. Adhering to the rule of law is a key element of the standards. We continue to support the tribunal. We call upon all parties in Kosovo and throughout the region to cooperate fully with the tribunal. This includes apprehending and transferring all fugitive indictees to The Hague.

The UN Special Representative had a similar statement here.

This indictment may prove to be a key test for the ICTY and Kosovo, both. The ICTY has shown that it is willing to prosecute people from both sides of the the Kosovar conflict. More than that, by indicting one of the leaders of the autonomous region of Kosovo, it is facing head-on the problem as to whether tribunals help or impede lasting political settlements by making political leaders face possible prosecutions (and thus giving them no incentive to make peace if they would go to jail anyway). So far, at least, the nightmare scenario hasn’t happened: Haradinaj resigned, urged Kosovars to remain calm, and has willingly left for the Hague (contrast this with the fugitive status of Ratko Mladic and Radovan Karadzic). As one journalist in Kosovo reported today, while he saw some people out buying flowers for International Women’s Day, he didn’t see anyone gathering stones for street protests over the indictment.

The reason for this is probably in large part due to the fact that this is a turning point not only for the ICTY, but Kosovo as well. Kosovo is looking for possible independence. The road to independence does not pass through defiance to the ICTY, Europe, and America. In order to set down a marker for the autonomy that they already have and press forward towards independence, Kosovo needs to show key players (especially the European Union and the U.S.) that it will be a good citizen in the community of states, if it achieves statehood. Complying with an ICTY indictment is a good way to signal this (it also explains, incidentally, why Serbia has been complying with the ICTY in its run-up towards talks for it accession into the E.U.).

Hopefully the incentives of being a “good citizen” will outweigh the disincentives. How these issues unfold will point to the possibilities for lasting peace in the region.

Texas’ Last Stand on Medellin

by Julian Ku

As the major media finally begins to notice the Bush Administration’s decision last week to order state courts to comply with the ICJ’s ruling in Avena, Texas may be gearing up for a last stand in the ongoing Medellin saga.

I stand by my prediction last week that the Bush Administration’s intervention on the side of the ICJ will almost certainly convince the Court to dismiss Medellin’s current appeal. The case would probably be refiled in Texas state court. I also doubted Texas would continue to fight an ICJ-mandated hearing in such a court, especially after someone pointed out to me that Texas’ own brief (pp. 46-47) seems to concede that an executive order could require it to comply with the ICJ order. (UPDATE: Marty Lederman points out that this language is a bit cryptic, and that Texas’ Brief on p. 7 says that the “President could sign an Executive Order creating some form of executive review” which doesn’t necessarily mean it concedes such an order could require state courts to provide a hearing in the way the President wants.)

But even after this admission, this report suggests Texas has changed its position and will contest the authority of the President to order it to comply with the ICJ order. According to its spokesman,

[Texas] respectfully believe[s] the executive determination exceeds the constitutional bounds for federal authority. The State of Texas believes no international court supersedes the laws of Texas or the laws of the United States.

This statement (thanks to Carlos Vazquez for the heads up) suggests two lines of resistance (further suggested by Lederman’s pointer): (1) that the Bush Administration “memorandum” is not an official executive order and has limited authority; (2) the ICJ’s order cannot authorize the U.S. executive branch to override inconsistent state law.

Both of these arguments are probably loser arguments, in my view. I’m sympathetic, but I’m fairly sure they will lose before this Court. Why? Because Texas would have to get the Supreme Court to reconsider some of its recent precedent that seemed to authorize the President to preempt state law based on declarations of national policy (American Insurance Association v. Garamendi), which seems unlikely. Even if the Court wants to limit Garamendi, the power of the executive branch to exercise its power to interpret and implement treaty obligations protecting foreign nationals is not likely to be the place where they will do so. I’m not thrilled with the idea that the President can unilaterally override state law through executive orders, but I do think it is better than the alternatives (e.g. judicial enforcement). My own scholarship suggests the use of executive orders in this way is virtually unprecedented. But it may be the wave of the future.

I am a bit surprised that Texas is going to continue to fight this because now it will not only have to fight Medellin’s attorneys, Mexico’s attorneys, but now also the attorneys for the U.S. government. This may not quite be a legal version of the Alamo, but it’s getting close.

John Bolton: Neocon or Realist. Does It Matter?

by Julian Ku

I agree that Bolton is a strange appointment, and not just because he doesn’t appear to like the U.N. very much. It is also strange because if Bolton hates the U.N. so much and thinks it is useless, it isn’t likely he will accomplish very much in his new job. In other words, this appointment almost suggests Bolton is being kicked upstairs so that Secretary of State Rice can keep control of the State Department to herself.

I do disagree with Peggy’s characterization of Bolton as a “neocon” in the sense that I don’t see his views as being that different, as a theoretical matter, from the famously realist Rice (or her chief policy guru Stephen Krasner). Maybe a realist would be less aggressive about promoting democracy or liberal values, but both realists and neocons share an increasingly severe skepticism of international law and institutions. Compare this quote from John Bolton, the supposed “neocon”, as documented in Slate:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so—because, over the long term, the goal of those who think that international law really means anything are those who want to constrain the United States.

Now recall this quote from uber-realist Stephan Krasner:

But the deepest problem with the ICC and with other efforts, like universal jurisdiction, is that international politics is not something that you can deal with adequately using judicial reasoning. Judicial reasoning has to be based essentially on absolute rules, or at least more or less on absolute rules. It has to be deontological or Kantian. You have to have a set of rules and you have to honor the rules.

But in the international level, that kind of thinking is utterly irresponsible, because the critical issue at the international level is how you can maintain order, ideally have justice, and save lives.

I think that both realists and neocons share is this skepticism toward international law and institutions. Indeed, one might argue this skepticism is a glue that holds the foreign policy team of this administration together.

What divides the neocons and realists are their foreign policy goals. Neocons (like Paul Wolfowitz) are interested in spreading liberal values and ideals (their only difference with most liberal internationalists is over methods, not goals). Realists are more hard-nosed and tend to talk a lot about “national interest”. What is odd about critics of the Bush team’s foreign policy is that the liberal internationalists critics seem to have the greatest scorn for the neocons, with whom they actually share more common values and goals

2004 State Department Human Rights Report: Early Global Reactions

by Peggy McGuinness

Last Monday, the State Department released its 2004 Report on Human Rights conditions around the world. The report has been around since the Carter administration, when Congress began requiring human rights reporting as a centerpiece of U.S. foreign policy. Since the beginning, the report has been criticized globally as reflecting an American tendency to subject other countries to a higher degree of scrutiny than it applies to its own behavior. Given the fact that one of the biggest human rights news stories of 2004 was abuse of detainees in US custody, reaction in the foreign press to the 2004 report is more strident on this point of “American exceptionalism” than ever. For example, Russia has accused the US of “double standards” and China has issued its own human rights counter-report detailing US violations.

Despite the obvious danger of being labeled hypocritical, the report is still the most widely read of international human rights reporting — particularly by the governments who find themselves criticized for falling short of international norms and by the human rights activists for whom the report offers public and official acknowledgement of conditions they are working to alleviate. Indeed, since the release of the report, governments around the world have gone out of their way to go on the record about the report (which means in most cases they have at least read the report). Reactions have ranged from outright denial to statements welcoming the information and discussion of problems raised in the report. Here are some samples from around the world:

Armenia says report is biased, but can provide guidance on civil rights issues;

North Korea dismisses report;

Ethiopia says report based on “lies”;

Slovakia says US report is overall “balanced”;

Pakistan calls US report “baseless”;

Bangladesh says report is “one-sided”; and

South Africa, Cyprus and Venezuela reject the report.

What makes this years report particularly sensitive is the condemnation of practices in countries to which the US has been sending detainees for interrogation. (See, for example, this discussion of torture practices in Egypt, Saudi Arabia and Tunisia outlined in the State Department report.) Great attention is also being paid to the report’s account of human rights abuses by the interim government in Iraq.

But how do these reports get written? Are they at all reliable? Back when I was a Foreign Service Officer, I served as human rights officer during one of my tours. It is in the foreign country where almost all the information is collected by FSOs on the ground. Here is an explanation of the process from the introduction of the 2004 report:

Our embassies, which prepared the initial drafts of the reports, gathered information throughout the year from a variety of sources across the political
spectrum, including government officials, jurists, armed forces sources, journalists, human rights monitors, academics, and labor activists. This information-gathering can be hazardous, and U.S. Foreign Service Officers regularly go to great lengths, under trying and sometimes dangerous conditions, to investigate reports of human rights abuse, monitor elections, and come to the aid of individuals at risk, such as political dissidents and human rights defenders whose rights are threatened by their governments.

Reliability and impact are not just measured by the sources and reporting methods, but also by the follow-up scrutiny of the report by governments and NGOs. The release of the report marks the beginning of an annual round of public diplomacy by US representatives overseas and provides a useful tool for engaging the governments and popular opinion on these issues. (See this discussion of the US Embassy in Lagos framing of the report as part of an “educational” process.)

It is clearly going to be more difficult than usual for the State Department to be taken seriously in its pursuit of human rights protection, when, as was reported in the NY Times yesterday, other elements of the US government are engaging in practices that implicitly (or explicitly) exploit the bad practices of other governments. And I don’t envy the work of human rights officers at US embassies around the world over the next few weeks. But sustained engagement with the rest of the world on these issues has marked US foreign policy since the late 1970s as different from the traditional diplomacy of other states. Consistency, the danger of politicization of the reporting process and charges of hypocrisy have always been a problem. That is why we should be sure that our criticisms of other states is matched with a shift in policies governing rendition and other programs and where policy change is resisted, human rights activists continue to pursue judicial remedies.

John Bolton Nominated to be UN Ambassador

by Peggy McGuinness

When Bob Zoellick was named Deputy Secretary of State, it was largely viewed as a triumph of the internationalist “realists” over the unilateralist “neocons” in the Bush State Department. That conclusion may have been somewhat premature. Today it was announced that John Bolton, a prominent neocon and current undersecretary of state for arms control and international security, will be nominated as US Ambassador to the United Nations. While Bolton solidified his reputation as opposing many multilateral institutional arrangements (most notably the ICC, which he helped make into US policy with the “unsigning” of the Rome Treaty), he had some success in helping the Bush I administration build multilateral support for the first Gulf War when he was assistant secretary for international organizations under James Baker. But he is by style and ideology no John Danforth. (He is reported to have once uttered, “If the UN building in NY lost 10 stories, it wouldn’t make a bit of difference.”) His confirmation hearings should offer an interesting opportunity to find out where the second Bush administration places the UN and its institutions now that it is, in the words of Secretary Rice, “time for diplomacy.”

Imposing a Time-Limit on Alien Tort Statute Claims

by Julian Ku

El Salvador watchdog (or is it “watchblog”?) Tim Muth notes that the U.S. Court of Appeals for the Eleventh Circuit reversed a $54 million judgment against 2 Salvadoran generals for human rights violations during the 1980s. Those generals now live in the U.S. and were sued by their victims under that ubiquitous Alien Tort Statute.

Courts have generally held that Alien Tort Statute claims are subject to a 10-year statute of limitations. The same issue will likely defeat the plaintiffs in the Agent Orange litigation because many of the alleged injuries were discovered or should have been discovered more than 10 years ago. There are obvious reasons for imposing such a time limitation on ATS claims just like statutes of limitations are imposed on other claims. Such limitations may be “equitably tolled”, meaning the court will stop the Statute of Limitations (“SOL”) clock from running due to special circumstances that prevent the plaintiff from bringing the claim.

Although imposing the SOL in any particular Alien Tort Statute case may seem harsh, it is particularly important to enforce the SOL in such cases because ATS claims in theory could be brought by any foreign plaintiff for any international law violation that has ever occurred in history. At some point, the even the U.S. court system must shut is door to even the worthiest claims.

ICJ Watch: Indonesia v. Malaysia v. Philippines

by Julian Ku

Territorial squabbling continues in Southeast Asia as the Indonesian government announced it would NOT bring its simmering dispute with Malaysia over offshore undersea development rights to the International Court of Justice (where it previously lost a territorial case in 2002). It also announced that warships sent to enforce Indonesian claims of sovereignty would remain and that Malaysian airplanes were violating Indonesian airspace. Tensions continue to rise and it looks like the ICJ will not be called in to settle this dispute.

Meanwhile, the Phillippines announced that it WOULD bring its claim to the island of Sabah (formerly North Borneo) to the ICJ. Sabah is currently a part of Malaysia, but apparently the Phillippines has a claim based, I think, upon the fact that Sabah was owned by the Sultanate of Sulu and leased to the British East India Company, which was eventually succeeded by the government of Malaysia. The Sultanate appears to be a protectorate of the Phillippines that had granted that country the right to pursue the Sabah claim on its behalf. Malaysia actually still pays a lease to the Sultanate.

None of the three countries has recognized the compulsory jurisdiction of the ICJ, so onemight wonder, then, why any of these countries would ever go to the ICJ if they don’t have to.

This is a complex and somewhat controversial question that is currently the subject of an important academic discussion between Professors Eric Posner and John Yoo on one side and Professors Laurence Helfer and Anne Marie Slaughter on the other. Posner and Yoo suggest that states will generally agree to international adjudication only when they feel like they have some control over the process, such as the power to appoint the arbitrator. Helfer and Slaughter respond that states will agree to give an international court binding jurisdiction to enhance the credibility of their commitments to the other states.

In these territorial and sea disputes, what is odd is that the states (like the Phillippines) might agree to give the ICJ jurisdiction as opposed to creating their own arbitration tribunal (which they could control better, as the Posner/Yoo theory might predict). States in this instance appear to be choosing an independent tribunal that they can’t control. This doesn’t necessarily support the Helfer/Slaughter view either because it is hard to see why agreeing to the ICJ after the dispute has already arisen will enhance the credibility of their commitment anymore then agreeing to arbitration would do so.

It may be that the ICJ has some expertise in these sorts of disputes and its existence as a stand-alone tribunal makes it a known quantity. The combination of expertise, and perhaps cost savings, might be one reason why the ICJ might continue to use international courts. But its use is likely to be sparing, as Indonesia’s attitude in the current dispute suggests. This may end up being a situation where international law and institutions will have to yield to diplomacy in these disputes.

Should We Annex Canada (and Mexico)?

by Julian Ku

In a conference in Brussels, Quebec’s Premier Jean Charest “called for closer economic and trade ties among Canada, Mexico and the United States, saying the three North American countries should take the European Union as an example of closer integration.”

In particular, Charest says the NAFTA countries should move toward “NAFTA-plus, that we should look at dispute settlement mechanisms that have binding effects on jurisdictions and whether we can open up to more trade and services and move forward. . .”

I doubt that Charest means that the NAFTA countries should try to emulate the proto-superstate that the European Union has become. But his comments do suggest that NAFTA dispute settlement provisions should become “binding” perhaps in the sense that they will be self-executing in the way that European Court of Justice decisions have become self-executing within Europe.

There might or might not be constitutional questions raised by such binding dispute settlement, but Charest’s comments reminded me one of my favorite thought experiments: what would happen if the three NAFTA countries really did want to move toward a EU-style confederation? Is that even permissible under the current U.S. Constitution? I’m not sure. While the U.S. could surely welcome Canada and Mexico into the Union as states (just as Texas and Hawaii entered as foreign countries via treaties), I somehow doubt that is what Charest or the Mexicans have that in mind.

Iraq’s Short-Lived Membership in the ICC

by Julian Ku

A while ago, I noted that Iraq had joined the ICC, which was rather surprising given the U.S. govt’s strenuous opposition to the international criminal court. I also noted that no one, except the French government, appeared to notice or care.

Yesterday, however, Iraq announced that it was withdrawing from the ICC (thanks to Allison Danner for the heads up). This withdrawal is just as surprising as its decision to join. I’m sure there is some interesting behind-the-scenes story here, but I am not well-plugged in enough to know what it is.

WTO Watch: Dispute Settlement Panel Upholds Ruling on U.S. Cotton Subsidies

by Julian Ku

The U.S. has lost its appeal to the WTO Appellate Body seeking to overturn a prior panel’s judgment finding that U.S. cotton subsidy programs violate WTO rules. (Update: The 288-page report can be found here). I do not believe the U.S has any further recourse within the WTO system, although compliance will likely take a very long time. Congress would have to, for instance, end all (or most) cotton subsidies worth about $12.5 billion annually. Moreover, if the U.S. does not comply, the remedy is for Brazil (the plaintiff, so to speak) to impose trade sanctions on the U.S. Whether that is enough to push the U.S. into compliance is hard to say.

Still, it is worthwhile noting that no one thinks Brazil could enforce this WTO judgment in federal court. The decision on whether and how to comply with this judgment, requiring the elimination of billions in annual subsidies, is held by Congress and Congress alone.

Will the U.S. Congress Vote on Withdrawing From the WTO?

by Julian Ku

This week, the U.S. Trade Representative submitted the 2005 Trade Policy Agenda and the 2004 Annual Report of the President on trade. These annual reports to Congress are required by statute. What makes this year’s 437-page report more interesting than usual, however, is that it also triggers a statutory provision that requires the U.S. government to assess the costs and benefits of staying in the WTO every five years and to allow members of Congress to propose a joint resolution withdrawing the U.S. from the WTO.

According to this Reuters account, there are some members of Congress who will probably introduce such a resolution this year. In particular, Rep. Bernie Sanders of Vermont, a Socialist, seems ready to do so. Is the foundation of global trade threatened? Probably not. Back in 2000, Rep. Ron Paul (Republican-Libertarian – Texas) introduced a similar resolution that went down in the House by an astounding vote of 56 in favor of withdrawing and 363 opposed. Who says the Republican-controlled House is anti-internationalist?

I believe these sorts of reports to Congress and statutory procedures for permitting Congress to vote on WTO membership are a healthy thing. We should probably have similar mechanisms for other international organizations like the U.N. Congress needs to be kept abreast of what is going on and they should be periodically presented with the question as to whether it still makes sense to stay in the organization. This ensures that U.S. membership in the WTO remains subject to the supervision and control of the most democratically accountable branch of the federal government. The fact that WTO is subject to more democratic constraints than most international organizations to which the U.S. is a member may actually be one reason that its decisions and judgments are more respected within the U.S. system.

Malaysia v. Indonesia: Can the Law of the Sea Help?

by Julian Ku

Although Malaysia and Indonesia have both been devastated recently by the December tsunami, they have apparently recovered enough to start squabbling over undersea development rights on two previously disputed islands, the Sipadan and Ligitan islands. The International Court of Justice awarded sovereignty over the two islands to Malaysia in a 2002 judgment, but Indonesia continues to contest the extent of Malaysia’s undersea development rights and has even sent warships to the disputed area to highlight its claim.

This issue apparently turns on whether Malaysia has the right to undersea development more than 19 kilometers and it also has to do with Indonesia’s prior claims and concessions in this area.

It doesn’t sound like things will get ugly, but this little episode does highlight how an international tribunal and a set of international rules like the Law of the Sea can help resolve this dispute. Whether such rules really will be invoked, and whether the ICJ or some other arbitral tribunal is called in to resolve this dispute is another question given the billions of dollars at stake here, but it does seem like a classic example of how international adjudication and international law can play a useful role in resolving disputes.

The U.S., Multilateralism, and the Iranian Nuclear Program

by Chris Borgen

According to recent reports, the U.S. is considering lowering the level of ire in its rhetoric towards Iran and even providing incentives to Iran (such as not blocking Iran’s bid to enter the WTO) for setting aside its attempts at constructing nuclear weapons. This turnabout of U.S. policy (see, by contrast, here) seems to be in response to calls by its European allies to become more engaged in negotiations with Iran over nuclear proliferation. As a result, there is now a more concerted effort by the Europeans, the U.S. and the U.N. in addressing the threat of Iranian military nuclearization.

One interesting side issue is how and when the issue of the Iranian nuclear program should be referred to the Security Council. The U.S. has been in favor of referring the issue sooner rather than later, likely in an attempt to get a Chapter VII resolution finding any such nuclearization a threat to international peace and security. This could open the door to international sanctions and, as discussed in my posts on S.C. resolutions and Iraq, a Chapter VII resolution with the “all necessary measures” clause (opening the way to armed interventions) .

Some view the U.S. about face as being actually an about face of 360 degrees: ending up the same place as where it started. The theory is that, by giving the Europeans what they want (engagement towards a diplomatic settlement), it will be easier for the U.S. to get European acquiescence to a Security Council referral if (or when) the negotiations fall apart. Perhaps.

Nancy Soderberg, among others, has argued (hear her, for example, on the Brian Lehrer show) that this policy shift is a sign that the Bush Administration is realizing that U.S. unilateralism will not be able to secure the type of long term changes that it is seeking in the Middle East. Returning to our earlier discussions on multilateralism and unilateralism (see here and here), by going it alone the U.S. finds that there is too much to do, at too much of a cost in blood and treasure, if it is not able to bring along more than a token coalition. And, in today’s world, if you want more than a minimal set of allies, then the U.N. is a very useful institution. In such cases multilateralism matters and it is smart politics. Perhaps Bush the Younger is learning what Bush the Elder clearly knows.

The Medellin "Memorandum" from the President.

by Julian Ku

The following is the text of the memorandum issued by the President yesterday with respect to the enforcement of the ICJ’s order which I discussed here and here. It is NOT an executive order (as I had thought), but it is some kind of memorandum from the President.
Some questions: Is it essentially an executive order? What is its legal effect on the Supreme Court? On the state courts that might hear the case? Is it within the authority of the President to issue such an order?
I will try to explore its implications more later (and upload the original file).
UPDATE: The Appendix to the Government’s Brief, which includes the executive “determination” is here (thanks to Marty Lederman for the heads up).

THE WHITE HOUSE
WASHINGTON

February 28, 2005

MEMORANDUM FOR THE ATTORNEY GENERAL

SUBJECT: Compliance with the Decision of the International Court of Justice in Avena

The United States is a party to the Vienna Convention on Consular Relations (the “Convention”) and the Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), which gives the International Court of Justice (ICJ) jurisdiction to decide disputes concerning the “interpretation and application” of the Convention.

I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its inter-national obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Avena), 2004 ICJ 128 (Mar. 31), by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.

[Signed] George W. Bush

Medellin, Simmons and International Death Penalty Litigation Strategy

by Peggy McGuinness

The Roper v. Simmons and Medellin discussions highlight one of the points of tension between the US and its closest international allies – the continuing use of the death penalty in this country. Julian has elucidated in his thorough and helpful discussions here and here the important constitutional law and federalism issues raised by Medellin, as well as the question of creating individual remedies in federal court for treaty violations (see also Mary Lederman’s discussion at SCOTUSBlog here). These are important questions that will have, in the near term, implications for the Guantanamo and detainee abuse cases. But let’s face it, Medellin is, from the perspective of Mexico and the rest of the world, about the death penalty. No one has brought a case before the ICJ on behalf of, for example, car thieves sentenced to 5-10 years who were denied the right to notify their consulates.

For years, abolitionists here and abroad have been looking for ways to get at the problem of the death penalty in the United States; the AEDPA of 1996 threw up additional procedural obstacles to habeas challenges in death cases. In 1998, the ICJ was poised to decide the Breard case (a Paraguayan national sentenced to death in Virginia), and issued a “provisional measures” order requesting the US to take measures to prevent the execution before the ICJ could consider the case. The “measures” taken consisted of a letter from then Secretary of State Albright to the governor of Virginia saying, in essence, “We’d appreciate it if you did not execute Mr. Breard, as the VCCR is an important treaty that protects US citizens overseas.” The Governor rejected the request and Breard was executed. (As Lederman discusses, Breard had also brought a habeas claim in US federal court, which was rejected by SCOTUS as procedurally defaulted under the AEDPA.)

In 1999, Mexico joined the fight by brining a request for an Advisory Opinion to the Inter-American Court of Human Rights to determine whether Mexican nationals on death row in the United States were entitled to some remedy for the failure of the US to provide consular notification under the VCCR. The IACHR issued an opinion (non-binding) outlining the legal rationales that became the basis for the later ICJ opinion in Avena: 1) the VCCR creates an individual right to an arrested national to have his consular representation notified; 2) the US failed to provide the notification; 3) the US must provide some remedy for the failure to notify, e.g., waive the procedural default rule, especially where death is the punishment.

Also in 1999, two German brothers, the LaGrands, were sentenced to death in Arizona. After one brother was executed, Germany brought a case before the ICJ under the VCCR. Again, the ICJ issued a provisional measure (which Germany unsuccessfully tried to have enforced by SCOTUS), and again the remaining defendant was executed before the ICJ could issue its final judgment. But Germany pursued the case anyway, with the resulting opinion of the ICJ reaching in essence the conclusions of law set forth by the IACHR advisory opinion. Avena, decided last year in favor of Mexico, was the last in the line of the three ICJ cases and provided the basis for the current Medellin challenge. At the same time as these cases have been pursued under the VCCR, international human rights groups have been systematically filing amicus briefs in key cases, like Simmons, and have been shining the harsh light of publicity on the US death penalty.

We have all seen movies where an American or Briton engages in some crime while vacationing abroad, only to find themselves subject to a criminal justice system that is draconian (anything from Return to Paradise to Bridget Jones Diary II comes to mind) by our own standards. We sympathize with the plight of the American sentenced to death for drug possession, and cheer for the friends who try to use all available means to spring them from jail, including intercessions by the US government. It can hardly be a surprise that other governments – who uniformly prohibit the death penalty – would do the same in the face of the practices of some US states that they view as archaic and draconian.

Julian may be right that the defendant in Medellin may ultimately not be spared the death penalty in Texas at the end of this process. But taken in combination with the ruling yesterday in Simmons, the strategy of pursuing American death penalty practices through a regional human rights body, the ICJ and through networks of activists poised to file amicus briefs and influence the “virtual” court of public international opinion appears to be swinging the pendulum ever so slightly in the direction of the abolitionists.

In this morning’s press, our international partners appear heartened by Kennedy’s acknowledgment in Roper v. Simmons that we pay attention to what is going on in the rest of the world, and some recognition that, yes, we live in that world. For a sample of some of the international reaction to the Simmons case, see discussions here (Irish Times) and here (Jerusalem Post). As with his majority opinion in Lawrence v. Texas, Kennedy places, in my mind, just the right amount of emphasis on the practice of other states (particularly the UK) and the trends in international human rights instruments. (What is really interesting about Simmons is the extent to which the Missouri Supreme Court opinion affirmed by the Court discussed international opinions on the death penalty.)

I happen to agree with the former diplomats who filed an amicus brief in Simmons, and who cited Harry Blackmun’s views on this issue, that, “if the substance of the Eighth Amendment is to turn on the ‘evolving standards of decency’ of the civilized world, there can be no justification for limiting judicial inquiry to the opinions of the United States.”

UPDATE: The Economist has this interesting article on the case asking “is the United States being swayed by international opinion?”

Iraqi Special Tribunal Judge Murdered

by Chris Borgen

I recently posted about Saddam’s trial moving forward. Yesterday, one of the judges of the Iraqi Special Tribunal, Barwize Mohammed Mahmoud al-Merani, and his son were murdered. (News report is here.) The judge was also a leading Kurdish politician and his son was an attorney at the tribunal. Authorities believe they were killed by insurgents.

This comes a day after the news of the turn-over of Saddam’s half brother, Ibrahim al-Hasan al-Tikriti , by Syria. Al-Tikrit is now believed to be the first person likely tried by the tribunal.

Legal transitions are often a process of two steps forward/one step back but it is difficult to think of one with higher stakes than this one.

Medellin: A Response to Comments

by Julian Ku

I am gratified for some of the comments below to my very long post on Medellin. Please indulge me as I follow up with a further clarification of why I believe the ICJ judgment should not be enforced by the courts.

I agree with Andreas that enforcing the ICJ judgment would not necessarily make the ICJ a higher court. Rather, the analogy would be to that of the U.S. Supreme Court and the highest court of particular state, say New York. The U.S. Supreme Court is bound, in a sense, to follow the interpretations of the highest New York court on questions of New York law. Similarly, if the U.S. Supreme Court was applying French law on a question, it seems reasonable to say that it would have to follow the interpretations of the highest French court.

But what is going on here is a bit different. Under Andreas’ view, the U.S. has delegated the authority to interpret U.S. treaty law (which is the law of the land under Article VI) to an international court. So under Andreas’ view, the ICJ is the final interpreter of a type of law (treaty law) that the U.S. Supreme Court would otherwise have the last word on.

I think such delegations would be constitutionally suspect if made without some limitations, and the better view is to consider such delegations to grant international tribunals the power to intepret the international law consequences only of a treaty. The question of whether or how the U.S. would apply that interpretation as a matter of domestic law should remain a question within the discretion of the political branches (Congress and the President).

The political branches might decide that the treaties should be enforced by the courts absent any constraints or limitations. This remains constitutionally suspect, but much less so if Congress and the President have been forced to state, on the record, that they have granted the international court this authority. Then they are accountable for the international court’s decision, and not the international court itself. Or, as is more commonly the case, the political branches decide to reserve to themselves (usually the President) the question of how or whether to enforce the international court judgment as a matter of domestic law.

This is what the U.S. government has done with WTO and NAFTA decisions and I think this is the best way to understand what the U.S. treatymakers did here with the Vienna Convention and the ICJ Statute as well. Sometimes international lawyers like to suggest that the WTO is all powerful and complied with so we should also comply with other international tribunals, but they should remember that there is a constant give and take within the U.S. system over whether and how to comply. And the one institution that has no say whatsover is the federal courts.

So in that way, the President’s action yesterday conforms to this approach. I think it raises some new problems, e.g. the question of the President’s power over the states, but those problems, while real, are I think far less significant the problem raised by the international court’s power over the domestic U.S. court system.

Comity is everyone’s favorite fallback position. The idea here is that domestic courts should give weight to the international court’s interpretation of the treaty or whatever law. I think this is right, but the whole point of comity is that it is not mandatory on the comity-conferring court. Thus, the U.S. Supreme Court should try, whenever possible, to defer to foreign and international court interpretations. But if there are strong countervailing domestic law obstacles to providing comity, e.g. a federal statute denying jurisdiction, then comity cannot override that domestic law obstacle.

When the Medellin case goes back to Texas court, which I believe will happen, the Texas court will have to figure out what it means to be “required” to give comity to the ICJ decision. Does a federal determination of comity override a mandatory state law policy? I don’t know and this will be the next tricky question facing the lawyers for Medellin, Mexico, and the state of Texas in this case.

Rumsfeld Sued For Torture

by Julian Ku

Busy news day here at Opinio Juris. The ACLU and Human Rights First announce that they, along with a group of former military officers, have sued Donald Rumsfeld over the use of torture and/or other abuses at Guantanamo Bay, Iraq, and Afghanistan.

Really quick take: The biggest practical obstacle here is Rumsfeld’s immunity as a government official. Still, there might be ways to get around this and at the very least, it will force the government to defend its activities. And it might require a court to wrestle with some of the tricky questions on just what constitutes torture that we have been batting back and forth here.

UPDATE: The complaint can be found here. Some of the allegations are rather shocking:

  • Refusing to provide medical care for gunshot wounds inflicted by U.S. forces for several hours and then removing bullets from Plaintiff Ali H.’s neck and back without anesthetic, intentionally causing excruciating pain;
  • Refusing to provide Plaintiff Ali H. with food, water, and pain medication for one-and-a-half days, despite his gunshot wounds, in order to cause pain, hunger, thirst, and humiliation;

More to the point, the allegations raise another possible issue and defense for Rumsfeld, namely, “I never authorized this behavior”. Certainly, there is no actual document or allegation directly linking him to this behavior, no “smoking gun” so to speak. I presume that is what he will argue (in addition to the argument that this behavior never occurred, which is still possible). As I’ve argued before, if this type of stuff was going on, the mere fact that he didn’t stop this behavior, or do something to prevent this behavior, is bad enough and should be grounds for his resignation (but not his liability in these sorts of lawsuits).

International Law and the Juvenile Death Penalty

by Julian Ku

The Supreme Court today held that the practice of executing individuals for crimes they committed below the age of 18 is a violation of the Eighth Amendment. Justice Kennedy’s opinion for the Court here includes an extended discussion of the relevance of foreign and international practice to the interpretation of the Eighth Amendment. Some highlights on this issue:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. (emphasis added)

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10.11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. (emphasis added)

It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

The Court also cited:

  • International Covenant on Civil and Political Rights, Art. 6(5), 999 U. N. T. S., at 175
  • United Nations Convention on the Rights of the Child, Art. 37,
  • American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5)
  • African Charter on the Rights and Welfare of the Child, Art. 5(3)

I can’t resist observing that the U.S. government has specifically reserved to the question of the execution of juveniles in signing and ratifying the ICCPR and in signing the Convention on the Rights of the Child. It may have done so also with the American Convention on Human Rights.

I am not sad to see the juvenile death penalty go away, but I do think it is odd that treaties to which the U.S. government specifically reserved the question at issue (the international legality of the juvenile death penalty) are being used as evidence of what the U.S. Constitution requires.

Even More on the Domestic Enforcement of ICJ Judgments: Summary and Analysis of the Briefs for the Respondent

by Julian Ku

Warning: this is a rather long post summarizing the various arguments raised by all the three briefs filed yesterday in Medellin , with my comments and thoughts (for what they are worth). Although this post is long, it still beats reading all three briefs, links to which can be found here, here, and here (Hello? Supreme Court Clerks assigned to bench memos for Medellin? Over here!)

Just as a reminder, the case is about a Mexican habeas petitioner who was arrested and convicted without receiving his consular notification rights under the Vienna Convention on Consular Relations. The International Court of Justice ruled, in a case brought by Mexico, that such Mexican nationals have a right to review and reconsideration of their convictions and sentences. He filed a petition in federal court seeking habeas review.

Here are the main arguments:

(1) The Anti-Terrorism and Effective Death Penalty Act (AEDPA), the federal statute regulating federal court jurisdiction for habeas corpus petitions, does not grant jurisdiction for review of the petitioner’s attempt to enforce the ICJ judgment.

There are a number of reasons why this is the case, the most important one (as all three briefs point out) is that the petitioner Medellin is bringing a claim that his treaty rights were violated whereas the appellate jurisdiction of the federal courts under AEDPA is limited to review of a denial of “constitutional claims.”

There is a larger principle at stake in this technical discussion. Does a federal statute supersede or modify an earlier enacted treaty? The answer under U.S. law is a resounding yes (as I explain exhaustively here). If the statute means what Texas, the U.S. and the Seven Law Professors says it means, then the federal statute prevents Medellin from seeking federal appellate court review of his treaty-based claim. It doesn’t mean, as all three briefs point out, that there is no significance to having a treaty-based right, but it just means that Congress has the right to limit or control how such treaty rights will be reviewed in habeas. After all, it is well settled that Congress can limit the ability of petitioners to seek review of other federal statutory or even constitutional rights, so it is not surprising that Congress can limit the review of treaty-based rights.

(2) The Vienna Convention on Consular Relations does not grant the petitioner a judicially enforceable right.

All three briefs talk about this issue, although most heavily emphasized by the U.S. and Texas. The basic point is this: Even though the Vienna Convention is a self-executing treaty, this does not mean it creates judicially enforceable private rights of action. In other words, not all treaties create rights for individuals to enforce their provisions in domestic courts. As the U.S. Brief explains, the Vienna Convention is “self-executing” in the sense that federal and state government officials already hold the power (without additional legislation from Congress) to enforce the treaty’s terms. No judicial enforcement by private individuals is necessarily required or permitted.

(3) The Optional Protocol granting jurisdiction to the ICJ to interpret the Vienna Convention does not grant ICJ judgments the status as domestically enforceable law.

This is an argument emphasized by the Law Professors’ Brief and the U.S. Brief. And I believe it is the most interesting one.

Both briefs argue that the U.S. government did not, when it agreed to grant the ICJ “compulsory jurisdiction” over Vienna Convention disputes, grant the ICJ the power to create enforceable judgments that bind domestic federal and state courts. The Law Professors’ Brief points out that the terms of the Optional Protocol only grants jurisdiction to resolve disputes between “parties” , that is to say, governments and not individuals. The U.S. further argues that the source of authority to carry out judgments of the ICJ lies in the UN Charter and with the U.S. government’s political branches only. It is here that I think the LawProf Brief usefully adds an important argument. If, as the petitioner argues, the ICJ judgments are directly enforceable in domestic federal and state courts, then I (and the co-signers of the LawProf brief) think serious constitutional problems are created.

The ICJ essentially becomes a part of the U.S. judicial branch because it can directly order U.S. courts to reverse their judgments. I, and others, have called this a delegation, and a potentially excessive one, to an international institution otherwise unaccountable to the U.S. individuals to which their judgments would apply.

Marty Lederman is unconvinced by this argument citing in the main to cases discussing the ability of Congress to assimilate foreign law by statute and suggesting the LawProf Brief conceded this point. Actually, we did not concede this point and I don’t read the cases to have resolved this question already. But suppose he is right: if Congress can delegate to a foreign government the authority to make or interpret domestic law by statute, why can’t they do it by treaty?

I have a two part response:

(a) When Congress assimilates foreign law by statute, this is also a delegation, albeit one might be found constitutional. But it is a delegation and courts must analyze whether or not the delegation was excessive. Generally, such delegations will pass the test, but the point is that the delegation question needs to be asked.

(b) The delegation question needs to be asked precisely in cases like this one, where the treaty doesn’t have any language as clear and specific as the language in congressional statutes assimilating foreign law upon which lederman relies. The delegation question forces Congress or the treaty makers to plainly spell out the fact that they are delegating authority, and what limits or standards they will place on such delegations. The usual way they do this in the treaty context is through a subsequently enacted statute spelling out how and whether a domestic court should enforce a foreign or international court judgment. It matter more in the instance of an international delegation because of the stronger presumption that the conduct of relations with foreign countires and international institutions will be controlled by the political branches and not the courts.

Additionally, such authority may also threaten the autonomy of the state governments because any ICJ judgments would presumably preempt their laws.

Overall, these are difficult and fundamental questions about the status of international tribunals within or above the U.S. judicial system. All of these difficult questions can be avoided if the Court simply refuses to consider the ICJ judgment as self-executing.

(4) Contrary to Petitioner’s and amici’s claims otherwise, enforcing the ICJ judgment directly here would depart from both U.S. and international practice.

Here is what turns out to be the main contribution of the Law Professors’ Brief. The U.S. does allow domestic enforcement of many international court judgments, but such enforcement has always been specifically authorized by Congress.

Moreover, our treaty partners in the ICJ, other foreign countries, do not directly enforce, through their judicial branches, judgments of the International Court of Justice. There is NO evidence anywhere of a reported judgment where an ICJ judgment was given direct effect.

There is an important principle at stake here as well. Congress might want to control how an international court judgment is enforced, what standards a court should use in considering how to enforce that international court judgment, etc. They might want “full faith and credit” (meaning no review) or they might want lots of judicial review of the international court judgment. But Congress gets to bind the court, not the international court itself nor the treaty. In theory, a treaty might directly order U.S. court to enforce its judgments, but any such treaty would have to make such an order to the courts crystal clear. No such clarity can be claimed here.

Additionally, it would be odd for the Court to adopt a rule directly enforcing ICJ judgments when none of the U.S.’s treaty partners do so. It is unclear that any comity is being provided to the treaty partners, whom would not provide any reciprocal treatment (Our brief further points out that one of the amicus briefs for the petitioner, filed by Prof. Damrosch of Columbia Law mistakenly claims that Belgium does directly enforce ICJ judgments).

(5) The Executive Branch has the inherent and exclusive power to enforce the ICJ judgment.

This is the biggest surprise of the briefing. The U.S., via Pres. Bush, has issued an executive order requiring state courts to give domestic effect to ICJ judgments.

My own view has been that the President should request states to defer to an ICJ judgment and that the states should listen. This has been the past practice when foreign governments made diplomatic protests on behalf of their nationals. The U.S. Brief goes one step farther and orders the state courts to carry out the ICJ’s order. Any inconsistent state law is preempted by the Executive Order. The Executive Order is based on the UN Charter’s imposition of a duty on the U.S. to carry out ICJ orders and the Executive’s inherent authority to manage foreign affairs.

I am not thrilled with this approach, because it opens the door to lots of executive orders telling the states to do things because of foreign affairs (as Brannon Denning and Mike Ramsey pointed out here). On the other hand, I do see its advantages, especially if the alternative is having the U.S. Supreme Court order the states to do the ICJ’s bidding.

What is at stake here is whether foreign relations will be controlled by the political branches (e.g. the President and/or Congress) or the federal courts. Historical practice, as well as functional competence (this is the main point of my piece with John Yoo here), strongly suggests this power should be held by the political branches.

On the other hand, whether the President can do this sort of thing alone, where his actions require the preemption of state law, is quite another matter. I suppose Congress could always override his actions, but this doesn’t really solve the federalism problem. What is the federalism problem?

Well, why can’t the President claim all sorts of foreign affairs concerns require him to issue executive orders to preempt state law? The U.S. government brief here carefully ties much of its authority to the UN Charter (a treaty of the U.S.) but it also claims a broad inherent power. Is there any limit imposed by federalism on the President’s foreign affairs powers? I think there must be some limit but I have suggested in the past that no President wanted to explore that limit. Yesterday, President Bush began to explore that limit and we will have to see (back in Texas I presume) how far he (and the courts) are willing to go.

Bottom line: the Executive Branch has taken responsibility, as it should, for the enforcement of its international legal obligation to comply with the ICJ’s judgment. This should satisfy all parties concerned (even Texas, who can now say, the President made us do it). I don’t think they needed to make an executive order (or whatever it is, some controlling executive act) but this is not the worst option (the worst option being having the Supreme Court do this). If I were Medellin’s lawyers, I would declare victory and quit the field. Your client will almost certainly get his hearing (although he will probably still lose and face execution).

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Whew! If you made it all the way to the end of this post, congratulations!! I barely made it myself.

Medellin Update: The Law Professors (and the U.S. and Texas) Strike Back

by Julian Ku

As I noted on Friday, respondent’s brief were due yesterday in Medellin v. Dretke, the Supreme Court case considering the domestic enforcement of judgments by the International Court of Justice. Texas filed a brief (which can be found here) as did a group of law professors (myself included) who filed an amicus brief here in support. But the big question was whether the U.S. government would file an amicus brief and what it would say. Well, they did file a brief (see here) and what they had to say was striking in some instances, as Marty Lederman explains here.

Here is my quick take. I plan to post a much longer discussion later today. The U.S. government’s brief follows my suggestion here (OK, they didn’t “follow” it, but great minds think alike) in that it pledges to the Court that the Executive Branch will take care of the enforcement of the ICJ judgment without judicial intervention. How they say they will enforce is another matter I’ll discuss in the future. The upshot: I predict this intervention will result in this case being vacated and remanded to the lower courts or dismissed altogether. I cannot imagine why the Court would want to hear this case if they don’t have to. And the Executive’s brief yesterday gives them every reason to believe they don’t have to.

Here’s why. President Bush has issued an executive order stating:

I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of American (Avena), 2004 I.C.J. 128 (Mar. 31, by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.

End of story? Maybe. Please stay tuned for more….