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.

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.

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?

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.

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.

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!

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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, one of the architects of “containment” policy during the Cold War, passed away yesterday in Princeton at the age of 101. See the Washinton 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.

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.

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.

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.

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.

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.

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).

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

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.

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!

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.

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.

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.

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.

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.

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.

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.

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?

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 R