Archive for
May, 2005

My Ongoing Debate on Amnesty International’s Report

by Julian Ku

For those not already sick of the topic, I, along with Greg Fox of Wayne State, Andreas Paulus of the Institute for Public International Law in Munich, and others, have been continuing to discuss the AI report in the comments section here.

More Relentless Self-Promotion: Ku on TV

by Julian Ku

All right, it’s not the Today Show, but for anyone in the New England area who might be interested (or curious what I sound like), I will be discussing Amnesty International’s recent human rights report on “Nite Beat with Barry Nolan” around 7:30 p.m. tonight on CN8, which is part of The Comcast Network. Also featured will be the head of Amnesty’s New England chapter.

Can You Attach an ICJ Judgment?

by Julian Ku

This report details a curious effort by a South African businessman to attach an expected forthcoming money judgment from the International Court of Justice in favor of the Democratic Republic of the Congo. DR Congo has filed a claim against Uganda in the International Court of Justice seeking reparations for Ugandan violations of Congo sovereignty. In theory, DR Congo might win billions of dollars. Apparently, this SA businessman has gotten an attachment in Uganda on any such payment so he can get his cut before DR Congo gets its money.

A couple rather obvious problems. Is an ICJ money judgment directly enforceable in Uganda? In other words, could Congo go to Ugandan courts to enforce the ICJ order? I don’t know. Nothing in the ICJ Statute requires such domestic enforcement, but I suppose Uganda might allow such enforcement. The only law I can find in Uganda allows judgments of Commonwealth countries to be enforced, but not ICJ judgments. Still, I’m quite confident that no country that is party to the ICJ permits such domestic judicial enforcement.

Why? To put it bluntly, countries always retain the option to ignore enforcement of ICJ judgments. They may get sanctioned, say by the UN or by other countries, but they might also keep non-compliance as a further bargaining chip with the country they are bargaining with. This may not be very nice, but it is hardly surprising. So look for Uganda to refuse to pay any ICJ judgment unless it is offered some further carrot by the international community or perhaps some nasty stick to force payment.

The EU, The French, and the New Europe

by Chris Borgen

What will the French “Non” to the EU Constitution mean for EU-hopefuls?

I have just returned from a week and a half in Moldova and Romania. Romania is supposed to accede to the EU in 2007 or soon thereafter. What strikes me, though, is how many Romanians seems skeptical of European integration. There was, of course, the famous quip by Chirac that Romania and other members of the “New Europe” seeking EU accession missed an opportunity to shut up and keep quiet rather than support the U.S. on Iraq. That didn’t go over well.

But, impolitic French sniping aside, there is a deeper structural reason for the skepticism of Romanians. Romania has been embroiled in a dispute with the European Commission over the procedures for foreign adoptions for Romanian children. (See this BBC report and this Southeast European Times report.) Baroness Emma Nicholson, the EU’s Rapporteur for Romania, wrote a scathing report on the process of foreign adoptions in Romania that caused the European Commission to demand a ban of such adoptions until reforms were made, if Romania hoped to gain eventual entrance to the EU.

But for the completion of the process of certain adoptions that were already “in the pipeline” to Italian families, this moratorium essentially halted foreign adoptions in whatever stage they were in. The U.S. Congress, in particular, was incensed that various people who were waiting for their adoptive children were no put into limbo. The EU-required moratorium lasted four years.

While Baroness Nicholson’s report had focused on corruption in the adoption system, Romanians saw a different problem. They don’t deny that there were problems in the adoptions system; what they didn’t like was that the EU could force them to ban all foreign adoptions on the basis of one report. Moreover, they didn’t think foreign adoptions was something that the EU Commission should have much say over. Reform the adoption system, yes; but Romania should be able to decide how.

Romanians I met seemed wary of the EU’s supranational aspirations. One person I spoke to talked about how Romania may have cultural ties to France, but in politics young Romanians are much more oriented towards Washington and London. They are Atlanticists who, by accident of geography, happen to be on the shore of the Black Sea.

Some Romanians count joining NATO as the second most significant event in their country’s history, after the 1918 unification of Romania and Transylvania (an event that my wife’s relatives, who are Transylvanian Hungarians, see in a less enthusiastic light). They love President Clinton for getting the ball rolling and President Bush for his welcoming Romania into NATO and the Administration’s view of the “New Europe.”

How Romanians and other nations queing up for accession react to the EU Constitution suddenly losing the wind from its sails will be interesting and complex. Note that the most vocal reason for the French “No” vote was that the EU Constitution was too neo-liberal, that is, too much like the economic models of Anglo-Saxon countries. On the other hand, Romanians I spoke to about this expected a “No” vote because the Constitution was too supranational. Go figure.

As with many electoral wins, the vote was probably comprised of different people being against the Constitution for different (and sometimes contradictory) reasons. If this leads to a less supranational EU, it may actually result in and EU that is more inviting to Romania and other members of the New Europe. If it makes the French and the Germans less enthusiastic about expansion until they can deepen EU, then accession becomes more difficult for Romania and Bulgaria (not to mention Turkey).

In any case, I think things are about to get very interesting in the Old World.

Goodbye EU?

by Julian Ku

French voters decisively rejected the proposed EU Constitution today by a 57-43 margin. This doesn’t mean the EU is dead, but it does probably mean that the EU Constitution, which was a treaty intended to push Europe into an “ever closer Union” is probably dead, at least in its current incarnation.

We haven’t blogged much about the EU here, but I would only say that this result, while it may be a bad thing for President Chirac and maybe the EU’s short-term prospects, might end up being a healthy thing for the EU project. Up to now, the EU has been a strange amalgamation of an international organization and a budding superstate, with very little direct democratic input. This vote was one of the first attempts to put the EU on a more solid democratic footing. The EU Constitution was mailed to every French voter. Even Paris Metro riders were spotted reading their copies on the way to work. This result is probably a useful wake-up call that will help ensure that any future strengthening of the EU will stand on solid democratic footing.

The Importance of Non-Binding International Agreements

by Julian Ku

Just as Congress attacks the U.S. for failings in its Container Security Initiative (“CSI”),, the leading post-Sept. 11 effort to tighten security checks on shipping into U.S. ports, the U.S. announces that it is trying to expand the CSI framework to encompass all of the members of the World Customs Organization. (Brazil signed on to the CSI just this week)The WCO is one of those really obscure international organizations that tries to create uniform standards for regulating ports throughout the world. It is obscure but highly influential among major trading states. Its latest effort can be found here.

Interestingly, this framework is not a treaty nor does it impose a formal international law obligation on its member states. Yet there will be international oversight of countries implementing this framework. So even if it is not an international obligation, there will be lots of attempts to make sure we comply as much as possible.

This might be considered an international administrative network involving agency-to-agency cooperation where the President, Congress, or even the State Department have not spoken. Instead, much of this is handled directly by the U.S. Customs and Border Security Agency (which is part of the Dept of Homeland Security I think, I’ve lost track…).

The CSI and the WCO rules are attempts to harmonize disparate international standards and practice. What is interesting, and perhaps puzzling, is why such standards are not formalized into some sort of hard international law instead of remaining a non-binding “framework.” As I’ve pointed out in the past, some substantial part of the Bush Administration’s approach to things (think of the efforts to regulation nuclear proliferation on the high seas and to reduce methane gases in the atmosphere) relies on such non-binding international agreements. It’s not “law”, and it won’t win over many of its critics, but it seems to get the job done.

Amnesty’s Torture List

by Julian Ku

As Peggy notes, Amnesty International’s annual report is almost certainly getting more press than usual because of its aggressive condemnation of U.S. policy toward detainees in Guantanamo Bay. In fact, it’s a bit more than aggressive, as this statement by Amnesty U.S.A.’s director suggests, Amnesty is putting out a list of “torture architects” and is asking foreign jurisdictions to arrest U.S. officials on this list. (UPDATE: The WSJ and the Washington Post weigh in with tough editorials jumping on Amnesty as well).

Amnesty International’s list of those who may be considered high-level torture architects includes Donald Rumsfeld, who approved a December 2002 memorandum that permitted such unlawful interrogation techniques as stress positions, prolonged isolation, stripping, and the use of dogs at Guantanamo Bay; William Haynes, the Defense Department General Counsel who wrote that memo, and Douglas Feith, Under Secretary of Defense for Policy, who is cited in the memo as concurring with its recommendations.

Our list includes Major General Geoffrey Miller, Commander of the Joint Task Force Guantanamo, whose subordinates used some of the approved torture techniques and who was sent to Iraq where he recommended that prison guards “soften up” detainees for interrogations; former CIA Director George Tenet, whose agency kept so-called “ghost detainees” off registration logs and hidden during visits by the Red Cross and whose operatives reportedly used such techniques as water-boarding, feigning suffocation, stress positions, and incommunicado detention.

And it includes Attorney General Alberto Gonzales, who called the Geneva Conventions “quaint” and “obsolete” in a January 2002 memo and who requested the memos that fueled the atrocities at Abu Ghraib; Lieutenant General Ricardo Sanchez, former Commander of US Forces in Iraq, and Sanchez’ deputy, Major General Walter Wojdakowsi, who failed to ensure proper staff oversight of detention and interrogation operations at Abu Ghraib, according to the military’s Fay-Jones report, and Captain Carolyn Wood, who oversaw interrogation operations at Bagram Air Base and who permitted the use of dogs, stress positions and sensory deprivation.

And that’s not all. Attorneys are not going to get off the hook:

Furthermore, Amnesty International calls upon state bar authorities to investigate the Administration lawyers alleged to be involved in the torture scandal for failing to meet professional responsibility standards. The attorneys who wrote various legal opinions that may have provided cover for subsequent crimes and who should be investigated include Bybee and David Addington, General Counsel to Vice President Cheney; Robert Delahunty, former Special Counsel in the Office of Homeland Security, and three attorneys in the Office of Legal Counsel—John Yoo, former Deputy Assistant Attorney General, Patrick Philbin, Deputy Assistant Attorney General, and Jack Goldsmith, former Assistant Attorney General. We also call on the Justice Department’s Office of Professional Responsibility to make public the findings of its investigation into the Bybee memo.

Now I realize that folks can disagree about the legal opinions reached by government attorneys and the policies that members of the executive branch pursued in detaining and interrogating suspects in the war on terror. But Amnesty is veering dangerously close to Noam Chomsky/Ramsey Clark-land here. They are not quite there yet, but give them another year, and the once-proud Amnesty International will be simply dismissed as another hotbed of fervent leftish-anti-Americanism which is no more credible on these matters than the U.S. government itself.

What’s Good for the Goose….Amnesty International Blasts US Human Rights Record

by Peggy McGuinness

Amnesty International issued its 2005 Human Rights Report today, blasting the US on Guantanamo, rendition practices and the abuses at Abu Ghraib. The full report covers human rights practices around the world (or at least of 149 countries), and is generally respected as one of the best-sourced human rights reports available. And, unlike the annual State Department Report, it offers a thorough analysis of US human rights practices.

Here is the excerpt from foreword written by AI Secretary General Irene Kahn that aims directly at the US:

In 1973 AI published its first report on torture. It found that: ‘”torture thrives on secrecy and impunity. Torture rears its head when the legal barriers against it are barred. Torture feeds on discrimination and fear. Torture gains ground when official condemnation of it is less than absolute.” The pictures of detainees in US custody in Abu Ghraib, Iraq, show that what was true 30 years ago remains true today. Despite the near-universal outrage generated by the photographs coming out of Abu Ghraib, and the evidence suggesting that such practices are being applied to other prisoners held by the USA in Afghanistan, Guantanamo and elsewhere, neither the US administration nor the US Congress has called for a full and independent investigation.

Instead, the US government has gone to great lengths to restrict the application of the Geneva Conventions and to “re-define” torture. It has sought to justify the use of coercive interrogation techniques, the practice of holding “ghost detainees” (people in unacknowledged incommunicado detention) and the “rendering” or handing over of prisoners to third countries known to practise torture. The detention facility at Guantanamo Bay has become the gulag of our times, entrenching the practice of arbitrary and indefinite detention in violation of international law. Trials by military commissions have made a mockery of justice and due process.

The USA, as the unrivalled political, military and economic hyper-power, sets the tone for governmental behaviour worldwide. When the most powerful country in the world thumbs its nose at the rule of law and human rights, it grants a licence to others to commit abuse with impunity and audacity. From Israel to Uzbekistan, Egypt to Nepal, governments have openly defied human rights and international humanitarian law in the name of national security and “counter-terrorism.”

In the section on the Americas, AI discusses the death penalty in the US (note that this paragraph was drafter prior to the Roper v. Simmons decision) and the failure of the US to provide notice to foreign arrestees of their rights under the Vienna Convention on Consular Relations:

The USA continued to flout international human rights standards by inflicting the death penalty on child offenders, people with mental disabilities, defendants without access to effective legal representation, and foreign nationals denied their consular rights. In 2004, 59 executions were carried out by a capital justice system characterized by arbitrariness, discrimination and error. Scheduled executions of a number of child offenders were stayed pending a Supreme Court ruling on the case of a death row prisoner aged 17 at the time of the crime.

It’s not all about the US, of course, though US failures make for a better headline on the press release. Among other highlights: AI criticizes the failure of the world community to act in Darfur and takes up the issue of human rights reform at the UN, noting that changes to the UN human rights machinery are needed “urgently and radically.” AI also criticizes acts of terrorism and the terrorists who have “taken humanity to new depths of bestiality and brutality.” Its central mission, however, is to take on state power — particularly those states that would justify torture of any sort or water down definitions of humane treatment — in defense of individual rights and the rule of law. AI might not be the last word on where the balance between security and rights should be struck (the report is least effective where it comments on Security Council practices and reform, nonetheless an important source of facts on who is falling short.

Wanna Sign a Treaty? Head to Turtle Bay

by Julian Ku

The U.N. announced today that it would once again hold a “treaty” day this September during which countries would be encouraged to sign various multilateral treaties. This seems like a fairly pointless event, since countries can sign treaties whenever they want. I somehow doubt that they will do so just because the U.N. is offering drinks and hor d’oeuvres along with treaty-signing.

Still, the U.N. officials are probably right to highlight the growing importance of treaties in an everyday person’s life.

It was important, [a U.N. official] stressed, to remember that treaties right now are the main source of international governance. “Much of what we take for granted in our day-to-day lives is enshrined in treaties, whether you make an international telephone call or take a flight to a different country or send a parcel by FedEx,” he said.

Sierra Leone Special Court Reports $50 Million Shortfall

by Julian Ku

The financing of international organizations is a complex question, but one thing is fairly predictable. Nations are less likely to make “voluntary” as opposed to “mandatory” contributions to international organizations. The Sierra Leone Special Court for War Crimes is discovering this reality the hard way, as the President of the Court reported to the U.N. Security Council this week. In testimony before the U.N. Security Council the President of the Court reported that the Special Court had received only $54.9 million in voluntary contributions whereas it had budgeted over $100 million for its four years of operation. The General Assembly and member states are being asked to pony up the difference.

WTO Watch: Key House Panel Approves Continued U.S. Membership

by Julian Ku

Not that there was much doubt, but a key U.S. House of Representatives committee has approved continued U.S. membership in the WTO. Under U.S. law, every five years any member of Congress can petition the Congress to withdraw from the WTO. As in 2000, the unlikely coalition of Socialist Vermonter Bernie Sanders and Libertarian Texan Ron Paul have made such a petition. And as in 2000, they look like they are headed for overwhelming defeat.

Save the Whales (By Suing in the ICJ)

by Julian Ku

Seems like Japan can’t cut a break these days. While the Chinese continue to thumb their nose at Japan’s attention to the graves of its war criminals, Australia is protesting Japan’s palns ot increase the number of whales it can hunt. In fact, Australia’s opposition party is pushing the Australian government to sue Japan in the ICJ for violating its obligations under the International Convention for the Regulation of Whaling.

Japan has never had a case before the ICJ, but if it keeps this up, that won’t last long. It remains one of the few major powers to accept the compulsory jurisdiction of the ICJ (along with Australia and Britain). So such a suit could be brought, although I have no idea how the ICJ will assess whether Japan is in violation of the Whaling Convention, since that Convention allocates some administrative discretion over how many whales a country is allowed to hunt to a separate international administrative body. I doubt, therefore, that Australia has a very good case here and should content itself with using whatever diplomatic leverage it has with Japan, and the International Whaling Commission’s own procedures, to try to limit Japan’s growing taste for whaling.

More on the ICRC and Customary International Humanitarian Law

by Peggy McGuinness

Ken Anderson has two posts on the ICRC today: this one addressing the criticism of ICRC in today’s WSJ and this one on the ICRC CIHL study, which I mentioned in an earlier post. On the WSJ editorial, I think it — like the Rifkin and Casey article in National Interest last month — goes a bit too far by indicting the entire organization for what appear to be breaches in confidentiality by some ICRC observers. The problem for ICRC is that it does, in fact, do best when it operates with very little publicity in the US and European press about its important role in humanitarian operations. But the demands for funding and building support for its mission make it attractive (because it is so popular in Europe) to engage in public “tough talk” against the US. Ken notes:

The ICRC will never be as clever, as nimble, as media-savvy and connected, as … well, cool as those organizations [Amnesty international and Human Rights Watch]. It will, however, save a lot of lives, over decades and indeed centuries, if it can resist the temptation to fashionableness. Problem is, alas, on current evidence, it is not resisting at all.

On the CIHL front, however, ICRC is making an impressive PR effort. I have to confess to have read only the executive summary of the voluminous study, but Ken raises an interesting point about the potential applicability of the study of future Alien Tort Cliams Act cases, a point apparently lost on the critics of the study in the US government, which so far have focused on its impact on US military rules of engagement. Hays Parks’ (DoD General Counsel’s office) talk at the ASIL annual meeting, for example, centered on the conflicts between the study and US military practices. (I raised the possibility that the study might also be used by defendants in Guantanamo hearings here.) The timing might not be great for the US to get into a full-blown conflict with ICRC on these IHL issues — particularly if it fears (or knows) that some at ICRC headquarters are willing to leak details of abuse by US military personnel in Guantanamo and other detention centers. But as Ken points out, the US will have lost a lot of ground to what will be viewed by future courts as the definitive study of CIHL if it does not go head-to-head with ICRC on its law-making exercise.

Medellin: Reading the Tea Leaves

by Julian Ku

Let’s see if I got this right.

5 votes to dismiss as improvidently granted. (Rehnquist, Scalia, Thomas, Kennedy, Ginsburg).

1 vote would have also preferred staying the case: (Ginsburg).

4 votes to remand to the Fifth Circuit to resolve all of the issues raised by the parties at the Court as well as the new ones created by the President’s intervention. (O’Connor, Souter, Stevens, and Breyer).

The Court’s ultimate disposition is not surprising, as Orin Kerr has pointed out, but the Court doesn’t usually spend 40 pages of the U.S. Reports explaining why it is DIGging a case.

It would be dangerous to read too much into the breakdown here. I still think that it’s fair to guess Ginsburg would ultimately have been happy to find in favor of Medellin, and that O’Connor is more skeptical. In theory, this whole exchange is really about whether the Court should deal with big cases while they have them, or hold back into all the issues are cleanly presented. Ginsburg appears to think that the Court should hold back, and O’Connor does not.

Paul Stephan of Virginia has put his finger on the most curious aspect of Justice O’Connor’s reasoning. Her view is NOT that the Court should resolve the case, but rather that it should have granted, vacated the lower court opinion, and remanded to the Fifth Circuit. But why should the Fifth Circuit be better positioned to resolve the important issues that the Supreme Court has identified than either the Texas courts or the Supreme Court itself?He writes:

I admit to being deeply puzzled by Justice O’Connor’s dissent. On the first page, she identifies three issues involving Avena and the VCCR that “deserve further consideration.” She also says that “It seems to me unsound to avoid questions of national importance when they are bound to recur.” Yet the three issues she identifies are fairly encompassed by the grant of certiorari. Why she concludes that the court ought to remand the case to the Fifth Circuit, rather than decide those three issues, is not explained in the opinion. She identifies as reversible error the Fifth Circuit’s denial of a COA. Yet she does not clearly indicate what else the Fifth Circuit should do differently, given that it did address the VCCR issues on their merits and the independent COA issue arose only in the Supreme Court proceedings.

Prof. Stephan also notes: “that the four dissenters do not reject the 2253(c)(2) issue on its merits (although there is plenty of dicta indicating their leanings), but rather regard the issue as forfeited in this case.” The 2253(c)(2) issue was probably Texas’ strongest argument: that the federal statute limiting federal appellate jurisdiction barred treaty-based claims. So it is possible that Texas could have still won on the merits (but not likely).

In any case, I think Medellin is in an even better position now than I first thought. Four members of the Court are on record as to wanting this case back, and all justices appear to agree that the Supreme Court will have jurisdiction from any final Texas state court judgment. But this time, when Medellin comes back (which seems all but assured), he avoids all the nasty federal habeas obstacles and gets a clean argument on the treaty’s protections and, most importantly, the President’s order.

Now we might have a different Court by then because that is at least a year away. But even so, Medellin faces tough obstacles. One dilemma that future case will raise is whether the Court will defer to an Executive determination on foreign policy, as it did in American Insurance Association v. Garamendi. In that case, Justice Souter wrote the majority, and Justice Ginsburg’s dissent focused on the dangers of executive authority over the states. So it is hard to say how even that case will break down.

Delightfully, however, it should provide even more fodder for discussions on this blog and law review articles. Which, of course, is the really important thing…

Medellin: So Who Won?

by Julian Ku

The Supreme Court’s disposition of Medellin is here. The actual six page opinion is quite short, but the interesting part will be the concurrence by Justice Ginsburg (joined by Justice Scalia) and the dissent by Justice O’Connor (joined by Justices Stevens, Souter, and Breyer). I will try to read the tea leaves of this rather unusual coalition later(UPDATE: My thoughts are posted here), but for now, I attempt to answer the natural question to ask for those folks following Medellin: who won?

As anyone who has followed Medellin here will recall, the case involved complex questions of federalism, separation of powers, international law, and habeas jurisdiction. It attracted nearly 20 amicus briefs from a wide variety of groups from around the world. It was the very first Supreme Court case to directly consider the domestic enforceability of an international tribunal judgment involving the international obligations of the U.S. government.

And yet, the Court “DIGged” (dismissed, certiorari being improvidently granted) this potentially momentous case, which essentially means they are saying, as a formal matter, that they should not have taken the case in the first place. (For my early semi-correct predictions on dispositions, see here). Moreover, the Fifth Circuit’s lower court decision denying Medellin federal habeas appellate jurisdiction for his treaty-based claim has been upheld. This is essentially what Texas wanted in the first place, so in this view, Texas “won” this case. Moreover, the Court did not grant Medellin’s rather unusual request for a stay of the Supreme Court proceedings, so Texas “won” here as well.

On the other hand, the Court’s opinion “DIGging” the case almost certainly relied in part on the President’s unusual intervention here issuing an order preempting inconsistent state law in order to implement a World Court judgment. Medellin has already filed his new appeal in state court, based on the President’s order, and he should have a decent chance of success of winning a new hearing based on his treaty claims. In fact, my original reaction was that the President’s order should give Medellin a clear victory, but Texas is going to fight this order and they might make some headway. In any event, Medellin has “won” in a somewhat limited sense. He did not overturn the Fifth Circuit opinion, but he did strongly improve his chances of winning the case in Texas by forcing the President to issue the order.

In this sense, given where Medellin started, he has made some real progress in advancing his case. The argument that the federal courts should directly enforce an international court order was always going to be difficult to win, although it was the most interesting one. The President’s order now transforms this case into more of a garden-variety federalism/separation of powers case. This may dismay internationalists who want to create precedents for judicial incorporation of international court judgments, but it should make Medellin’s task a lot easier. Instead of attempting to convince Texas judges to follow the judgment of 15 judges in the Hague, they can simply wave President Bush’s order at them. It is still no slam dunk, but it is certainly better than the desperation three pointer at the buzzer that Medellin faced just a year ago.

Much Ado About Nothing? Medellin is Dismissed

by Julian Ku

The Court today dismissed the petition in Medellin holding that certiorari was improvidently granted. Basically, this means that they are holding that they should not have accepted the case in the first place. Thanks to SCOTUSBlog for the pointer. I’ll have much more to say later today. For a reminder on the issues raised by a challenge to Texas’ administration of the death penalty involving foreigners, the effect of an International Court of Justice judgment, and the intervention by the President, see here.

The End of War? Who Should Get the Credit?

by Julian Ku

Gregg Easterbrook has another great and contrarian piece in the TNR this week explaining that “war” has actually been in sharp decline over the past 15 years. He relies on an academic study by two political scientists, Monty G. Marshall and Ted Robert Gurr, who have done a series of empirical studies demonstrating that violent conflict has been steadily decreasing since the end of the Cold War.

Not convinced? Well, you will have to look at the Easterbrook piece, or the original study, which measures “war” in a variety of ways: number of violent conflicts, numbers of war-related deaths, risk of death from war as compared to other causes, global military spending. The upshot? All of these measurements have shown a steady decline in the last 15 years.

Assuming this study is accurate, the important question becomes: what is the cause? Easterbrook throws some love to the UN, writing that, in addition to peacekeeping,

Peacekeeping is just one way in which the United Nations has made a significant contribution to the decline of war. American commentators love to disparage the organization in that big cereal-box building on the East River, and, of course, the United Nations has manifold faults. Yet we should not lose track of the fact that the global security system envisioned by the U.N. charter appears to be taking effect. Great-power military tensions are at the lowest level in centuries; wealthy nations are increasingly pressured by international diplomacy not to encourage war by client states; and much of the world respects U.N. guidance. Related to this, the rise in “international engagement,” or the involvement of the world community in local disputes, increasingly mitigates against war.

This is certainly possible. But Easterbrook’s review of possible causes curiously overlooks one important alternative. The U.S. has been calling itself the world’s only superpower for about, oh, 15 years. Some have already proclaims this period a potential Pax Americana or American Imperium. The reduction in great power military tensions might reflect better diplomacy or it could simply reflect the overwhelming supremacy of U.S. military forces.

It is likely that all of these factors, and more not discussed here, have led to the comparative reduction in wars over the past 15 years (assuming that is really happening). The important question going forward then, is to figure out how best to keep the trendline heading downward.

International Committee of the Red Cross and the Problem of Emblems

by Peggy McGuinness

“Red crystal” may not roll of the tongue as easily as “red cross” or “red crescent,” but there is a movement afoot to replace the current emblems of ICRC and the International Federation of Red Cross/Red Crescent Societies with a non-religious and less politically charged symbol. (See this picture here for the red diamond/crystal design.) ICRC Legal Director Francois Bugnion wrote this account of the history and the problem a couple of years ago.

What’s all the fuss about? For its entire history, the International Federation of the Red Cross and Red Crescent Societies have restricted the symbols of its movement and national societies to be either a red cross or red crescent. Most accounts of the background on the emblems indicate that the origination of the use of the red cross star or red crescent against a white field was not explicitly religious or political. But nonetheless, they have come to be viewed as such. The Jewish star is used as the emblem of Magen David Adom, the emergency assistance organization in Israel that corresponds in almost all respects with other national Red Cross/Red Crescent societies except one: It is not a member of the International Federation. This is because the Federation may not, under the Geneva Conventions, recognize a society that does not adopt either the cross or crescent. Adopting a new, non-religious, symbol would permit those countries — like Israel — who do not wish to use the cross or crescent symbols to enter the Federation under the no-religious red crystal. This should be easy. All it requires is amending the Geneva Conventions to replace the cross or crescent with the red crystal, or, alternatively, to approve the red crystal as an available third option.

The American Red Cross has stepped up the pressure on the International Federation to make the change. (It has apparently been withholding part of its dues owed the Federation in protest for the past 5 years.) I agree with the sentiments of a recent editorial in the IHT noting that the ICRC and the Federation would be on stronger ground urging compliance with international humanitarian law by all states, if they were open to membership by all states on equal footing.

How to Sue Burma in the ICJ for Genocide

by Julian Ku

This IHT report documents horrific human rights abuses in Myanmar/Burma gathered by an Englishman who has been sneaking in Burma over the past five years. Of course, the real story here is that these abuses, if true, are going on. But the practical question: Is there any remedy for foreign governments, consistent with existing international law, to stop the abuses. (Note: The U.S. still has as many sanctions on Burma as I believe is possible. But I don’t think China is nearly as scrupulous).

Well, I suppose Kosovo and maybe Iraq provide some precedent for armed intervention (don’t hold your breath). And the ICC could in theory get involved, via a Security Council referral (but China stands in the way, as well as the U.S. maybe). The article also suggests at least one remedy: a “civil” suit in the International Court of Justice under the dispute resolution provisions of the Genocide Convention. Article 9 allows for:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Burma is a signatory to the Genocide Convention so it appears the ICJ would have jurisdiction in such an application, as long as that application was brought by another government. The pending case between Bosnia and Serbia is just such a case. What would be the point of such a lawsuit? Well, it might well force Burma to try to defend itself and put the facts of the Genocide Convention violations in the public record. On the other hand, the factual record is likely to be tricky since even Darfur may or may not violate the Genocide Convention. Still, a judgment by the ICJ that Burma is violating the Genocide Convention, in theory, obligates the Security Council to act (there is that whole China-veto problem again though).

In the end, an ICJ lawsuit is not much of a weapon against Burma. Ask Bosnia-Herzegovina, which will finally get their day in court in February 2006, a mere 13 years after it filed its initial application against Serbia. But since the U.S. and other countries have already tried economic sanctions, and I presume no support for military intervention from either the right or the left, an ICJ lawsuit may be the least worst option and slightly better than doing nothing at all.

The ICJ v. WTO: The EU’s Compliance with One Treaty May Violate Another

by Julian Ku

Here is a neat international law puzzle. Caricom, a trade association including most Caribbean nations, is threatening to bring an action against the EU in the International Court of Justice for violating its agreements to support the Caribbean sugar industries by purchasing their sugar at preferential prices. The catch? The reason the EU is changing its policy is mostly as a result of a recent WTO decision finding its sugar preference system in violation of the WTO rules. The EU can’t win here, it seems. So what should the legal effect of this provision of the updated EU-African Caribbean Producers agreement be?

ARTICLE 91
Conflict between this Agreement and other treaties

No treaty, convention, agreement or arrangement of any kind between one or more Member States of the Community and one or more ACP States may impede the implementation of this Agreement.

There is traditionally a last in time rule for treaties, with the later in time treaty prevailing over the earlier in time one. This would seem to favor the EU-ACP Treaty since it entered into force in 2000, 6 years after the WTO Agreement. Strangely enough, then, it appears the Caribbean countries have a case.

Which doesn’t mean they will win anything. The ICJ is unlikely to have jurisdiction here, and even if they did, I wonder if the EU countries will choose to comply with the sanction-less ICJ over the sanction-empowered WTO. Still, it is an interesting example of what may be a more and more common phenomenon in coming years: conflicts between countries’ international treaties and conflicts between the dispute resolution systems that resolve them.

General Andrew J. Goodpaster (1915-2005)

by Peggy McGuinness

General Andrew J. Goodpaster died this week at the age of 90. In the months following my graduation from college, but prior to my joining the Foreign Service, I had the great privilege to work briefly under his leadership at the Atlantic Council of the United States — a non-partisan think tank dedicated to support of the Transatlantic relationship. He was already well into the second decade of his (second) retirement from his long and illustrious career in the US Army. His obituary reads like a history of the great events in US foreign and military policy in the latter half of 20th Century. But he was no Zelig. He was a soldier (West Point ’39; WWII; Deputy Commander Vietnam; SACEUR), diplomat (on the negotiating team at the Paris Talks), a scholar (Phd Princeton, taught at the Citadel) and a public servant (coming out of retirement to save the reputation of West Point in the aftermath of a notorious cheating scandal). He was also a gentleman of the old school. All of us junior staffers at the Council adored and respected him.

Among his many posts, Goodpaster served as military aid to President Eisenhower, and was present for many of the early negotiations with the Soviets on reduction of testing and other controls on nuclear weapons. Goodpaster liked to tell this story about Ike’s negotiation style:

A group of arms control experts from the State Department came in to brief Eisenhower on a series of items on the table and give him their advice on which were most likely to be agreed to by the Soviets. They counseled caution, advising Eisenhower not to push on those issues most likely to encounter resistance. As Goodpaster told the story, Eisenhower listened politely, and then replied to the group, “Well, boys, how about we go in and negotiate OUR agenda?”

It’s still the best negotiating advice I’ve ever heard.

Counting the Dead in Darfur

by Peggy McGuinness

The NY Times ran this piece this morning on the challenge of coming up with estimates of the total dead as a result of the conflict in the Darfur region of Sudan. The problem is common in the face of mass humanitarian disasters: how to estimate death tolls in a place with no birth or death certificates or accurate census data, where complete villages have been destroyed, and where the size and conditions on the battlefield are such that actual counting of bodies is next to impossible. Moreover, survivors are often so traumatized that they cannot be relied on to recount precisely what happened to their family or neighbors. In Darfur, many of the deaths are caused by malnutrition and/or disease arising as a consequence of conflict and displacement. So we have a range of death estimates: the US says 60,000-160,000; one NGO observer, the Coalition for International Justice, puts it at 400,000. Even at the low end, the numbers are horrifying. Ironically, the UN Commission investigating whether genocide had been committed in Darfur was confident in its conclusions that the acts committed did not meet the legal definition of genocide, but refused to estimate an overall count of the dead. The magnitude of the death toll — by violent or non-violent means — should be enough to overcome whatever technical legal arguments can be made to oppose more robust outside intervention. (Compare reactions to Darfur with responses to the Tsunami.) Sadly, the discussion of numbers — large or even larger — doesn’t appear to making too much difference:

[W]hen Darfur’s violence mercifully ends, a number will be agreed upon. That number, like the figure of 800,000 for the Rwanda massacre, will be forever appended to the awful events. The rest of the world, slow to react to Darfur, will then have plenty of opportunity to think about it, and wonder why it was able to grow as large as it did.

The Real Star Wars: If Only They Had Lawyers

by Julian Ku

Just in time for the arrival in theaters of the Revenge of the Sith, The NYT reports that the Air Force is seeking a presidential directive endorsing an aggressive policy to develop weapons that can be used in outer space. Like the Law of the Sea, outer space is a logical place for international law to play a role. Indeed, there is a United Nations Office for Outer Space Affairs that administers the five main treaties governing the conduct of nations in outer space (is that a cool-sounding job or what? Note also the cool acronym “OOSA”).

As the article notes, the U.S. has agreed to refrain from putting any weapons of mass destruction in outer space or on the moon per the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the “Outer Space Treaty.”) Everything else though appears to be fair game, which is what the Air Force apparently wants.

Expect some international lawyers, however, to pop up and claim that there is a some sort of customary international law principle prohibiting any kind of space-based weapons. After all, no state has done so yet, so maybe this has hardened into international law. And the General Assembly has passed a bunch of declarations. But only five states (if you count Brazil) have even space launch capability, so does the fact that the other 175 refrain from weaponizing space really matter for international law purposes?

Space will be developed and used, whether or not there is an worldwide treaty regulating such use. I think the law can be useful here, but let’s not get carried away. The key to how outer space will be developed will lie in decisions by folks like President Bush and President Putin, and not in the world of international lawyers.

Free and Fair: How to Monitor an Election

by Peggy McGuinness

What is it election monitors do, anyway? Slate has this useful primer. But it doesn’t explain how last Sunday’s elections in Ethiopia could, as the US has concluded, be “marked with irregularities” but at the same time not amount to election “fraud.”

Women Win the Vote in Kuwait

by Peggy McGuinness

In a vote that appears to have surprised even themselves, the Kuwaiti Parliament yesterday approved a bill to grant women the vote and the right to stand for office. Women will be eligible to be candidates in the 2007 parliamentary elections. Admittedly, the range of issues subject to democratic review in Kuwait remains narrow and tightly controlled by the royal family, but this is nonetheless a sea change — and one that won’t go unnoticed next door in Saudi Arabia, one of the few countries left that denies women the vote. (See this list compiled by a New Zealand news organization.) Congratulations to all the women’s rights activists in Kuwait for this hard won and important victory. Of course, the Islamist leaders who opposed women’s suffrage are already claiming that the Kuwaiti government gave in to pressure from outside countries.

My Mizzou faculty colleague (and former AALS President) Dale Whitman recently returned from his second visit to Kuwait this year as part of an ABA site team at the University of Kuwait Law School. (Yes, it turns out the stamp of approval from the ABA has currency overseas.) He shared with me his view that Kuwait has all the right ingredients in place — most notably lots of money — for strenghtening of the rule of law and democratic governance. And it seems to be taking steps in the right direction. More broadly, training lawyers — male and female — will continue to be an important element in successful democratization in the Middle East, and Kuwait is taking that charge seriously. Here is a link to the law school.

Thornburgh Supports Immunity for UN Investigators

by Peggy McGuinness

Former US Attorney General Richard Thornburgh wrote this op-ed in today’s Washington Post supporting confidentiality and immunity for the documents, witnesses and investigators appointed by Secretary General Annan to the Commission investigating the oil-for-food scandal. I posted earlier on the basis of immunity for UN officials implicated in the probe — immunity which is set forth in the UN Convention on Privileges and Immunities and codified under US law in the International Organizations Act. Thornburgh argues that the Convention also applies to witnesses and staff of the Commission, that such immunity is analogous to broad executive immunities in the US system, and the TRO issued by a federal court last week (which Julian discussed here) prohibiting a former Commission investigator from disclosing Commission documents was therefore correct and completely in line with US practice.

It’s easy, and perhaps fashionable, to dismiss this legal maneuver by the investigating committee as an example of stonewalling meant to protect embattled U.N. Secretary General Kofi Annan. But in fact, in its most recent report, the investigation — led by former Federal Reserve chairman Paul A. Volcker — found Annan to have been deficient in investigating potential conflicts of interest between his son and a company that was bidding for a major contract with the Iraqi humanitarian program. Furthermore, the committee has uncovered information that Benon Sevan, the U.N. bureaucrat responsible for the oil-for-food program, may have made money on the deal; that the United Nations’ selection of the program’s prime contractors did not conform to its own rules; and that Annan’s former chief of staff shredded potentially relevant documents even as Volcker’s investigation was getting underway.

The real basis for the Volcker committee’s action, and for the temporary restraining order granted by a federal court, is something more important than protecting U.N. officials. It is the need to defend a principle held sacred and regularly exercised by all investigators — including congressional probers — namely, confidentiality for witnesses and investigators.
To put it simply, the Volcker committee, like all official investigations, would be crippled if it couldn’t guarantee its witnesses that their confidential testimony and even their names won’t end up on the nightly news. The materials obtained by the committee include highly sensitive interviews with many people who live in dangerous parts of the world, such as Iraq, and who spoke only on the condition that their interviews would remain private and that their identities would be protected.

If accountability at the UN is going to work, then it seems pretty clear that this kind of protection of witnesses and sources should be the rule.

Justice Kennedy: "The (Legal) World is Flat"

by Julian Ku

Justice Kennedy is just looking for a fight with conservatives in Congress annoyed by his increasingly frequent citation to international and foreign law in the interpretation of the Constitution. In a speech to the 11th Circuit Judicial Conference, he remarked:

“It’s really quite wrong to say that the Supreme Court ignores international law and doesn’t understand it,” he said.

Referring to the title of a book by New York Times columnist Thomas Friedman about increasing globalization, Kennedy said “the world is now flat, and the U.S. is beginning to be involved in international law.”

(Thanks to Orin Kerr for pointing out this speech).

I am not a huge fan of Friedman’s metaphor, mostly because I have no idea what it means. So I have even less idea of what Kennedy means here by invoking it to refer to U.S. involvement with international law.

Assuming this quote is accurate, I am struck by the silliness of Kennedy’s suggestion that the “U.S. is beginning to be involved in international law.” This will be news to the folks at the State Department, who are cranking out hundreds of executive agreements and treaties a year, and who advise the different parts of the U.S. government on how to interpret and apply U.S. international law obligations. Or the U.S. Congress, which approves and implements these treaties and agreements by advise and consent or through implementing legislation. And what about the zillions of international organizations that the U.S belongs to (and funds).

What is “beginning” is aggressive judicial invocation of international law (even international law that the other branches have rejected) to interpret the U.S. Constitution. This is new stuff, and I don’t think (based on his own use of it in Lawrence and Roper) that Justice Kennedy himself has come up with an explanation of why it is so important to cite international treaties when interpreting the Constitution. No justice has offered a particularly impressive defense of this practice (see discussion of Ginsburg here and Breyer here). It’s too bad that the Justice can’t do better than simply telling us that the “world is flat”.

Settling Territorial Disputes Without Going to Court

by Julian Ku

As I’ve frequently noted, Asia is a hotbed of territorial disputes, mostly involving Law of the Sea issues, and with very large economic stakes. In the past two days, two of the trickier disputes, which might have been litigated in an international tribunal, have “settled”.

First, Australia and East Timor are expected to announce an agreement on a boundary settlement that will give Australia rights to develop undersea mineral deposits in exchange for a payment of royalties to East Timor. As I discussed previously, Australia pushed East Timor into this settlement by withdrawing from the ICJ’s Law of the Sea compulsory jurisdiction just two months before East Timor gained independence.

Second, Malaysia and Singapore have settled their dispute over Singapore’s land reclamation project. Although this dispute did go to the International Tribunal for the Law of the Sea (ITLOS), the key to the settlement was improved bilateral relations that resulted in a settlement agreement.

None of this means that actual or threatened international court litigation doesn’t matter in these sorts of territorial disputes. But the rather self-interested actions of these Asian countries in resolving their disputes should remind us that the key to resolution is as much a political and diplomatic question as it is a legal one.

WTO Watch: A Frenchman Will Head the WTO

by Julian Ku

It looks like former EU Trade Commissioner Pascal Lamy of France will be the next head of the WTO. Oddly enough, this is probably a good thing for the U.S. because, as I suggested, Lamy’s predilections will almost certainly coincide with the U.S. on most issues.

Can U.S. Mayors Implement Kyoto? (and Can Pres. Bush Stop Them)?

by Julian Ku

This NYT article details efforts by local and state governments to comply with the Kyoto Protocol despite that treaty’s rejection by the President and Senate. Along with various corporate efforts to battle global warming, these efforts further confirm that not everything in foreign affairs starts with the federal government.

On the other hand, these efforts do raise an interesting domestic U.S. law questions. Under recent Supreme Court precedent, the President can preempt state and local laws that he deems inconsistent with a clearly established national policy? President Bush relied on this authority, in part, when he invalidated (or tried to invalidate) Texas laws denying certain rights to foreign defendants on death row? Could he do the same here? Declare these various local laws in violation of the express U.S. policy not to comply with the Kyoto Protocol?

This sounds absurd, and as a political matter it may be so, but as a legal matter, this is not so crazy. I think the Supreme Court’s precedent in this area allows for this possibility. We’ll see.

Amending the U.N. Charter: Why Does the "Unilateralist" U.S. Care?

by Julian Ku

This NYT article suggests the U.S. will oppose granting any new permanent members of the Security Council a veto power that is currently shared by the Big Five. I have to admit that I am a big surprised at this opposition. If the U.S. really doesn’t think the UN Security Council matters very much, then why should the U.S. care if there are more vetoes? On the other hand, any one who wants a more effective Security Council, namely, the U.N. bureaucrats, should oppose handing out more vetoes. Yet they appear to be supporting the new members? Strange.

From a strictly legal point of view, I am stunned that anyone thinks UN Charter reform is going to happen very quickly or at all, because 2/3 of all UN members, including all of the members of the Security Council, must ratify any amendments through their domestic constitutional processes (See Article 108, U.N. Charter). Yikes. That means 67 U.S. senators must approve any new U.N. arrangement with new Security Council members. Good luck!

Off to Moldova….

by Chris Borgen

I will be in Moldova for the next week and a half, taking part in a project sponsored by the Association of the Bar of the City of New York. In all likelihood I will not post to Opinio Juris while I am away but I hope to share some impressions from Eastern Europe when I return…

Voinovich on Bolton: The United States Can Do Better

by Peggy McGuinness

The John Bolton nomination drama is entering a new phase, with Republican Senator Voinovich stating that he will not vote for Bolton, nor will he prevent the nomination from being considered by the full Senate. With the Republicans holding 55-45 majority in the Senate, it is not clear Bolton’s nomination will lose on a floor vote (though a fillibuster might do it.) The money quote from the Washington Post:

“After hours of deliberation, telephone calls, personal conversations, reading hundreds of pages of transcripts, and asking for guidance from Above, I have come to the determination that the United States can do better than John Bolton,” Voinovich said.

Indeed.

International Legal Citation Project

by Peggy McGuinness

Students at the Washington University Global Studies Law Review are developing a guide to international legal citation, apparently intended as a “gap filler” for areas not covered by the Bluebook. I’ve not studied it closely, but it looks to be an extremely useful tool for student editors at international law journals. The guide includes a brief summary of the governmental structure and legal system of each country and examples of how to cite from specific sources. (See, e.g., this page on Slovenia.) Because the guide is still in development, they are taking comments. The link is here.

Testing Turkey’s Commitment to Europe: the European Court of Human Rights Rules that Turkey’s Trial of Kurdish Leader is Unfair

by Julian Ku

The European Court of Human Rights issued a ruling today finding that Turkey’s trial of Abdullah Ocalan, the former leader of the Kurdish independence group the PKK (which many Turks view as terrorist), violated the European Convention on Human Rights’ guarantees of a fair trial. The trial of Ocalan is a big deal in Turkey and this ruling is not going to make the EU and joining the EU system any more popular. Still, in a remarkable display of the EU’s attraction for Turkey and maybe the ECHR’s authority, there seems no doubt, from this report, that Turkey will comply with what will no doubt be a very unpopular ruling.

Rep. Sensenbrenner on Foreign Law and Constitutional Interpretation

by Julian Ku

Rep. James Sensenbrenner, the chairman of the House Judiciary Committee, gave a speech on Monday at Stanford that has drawn some criticism for its vaguely threatening reference to an Inspector General of the federal courts. What is interesting about the speech hoever, is that one of Sensenbrenner’s main beefs with the judiciary is its citation of foreign and international law in constitutional interpretation. This suggests that this issue is not going to go away and is becoming a central part of the “judicial activist” critique that is already being levelled at the federal courts.

Now it is easy to dismiss this as overwrought and overblown, but I think Sensenbrenner’s speech actually touches on the most objectionable part of the judicial fad for citing foreign law in constitutional cases.

Federal courts have increasingly utilized foreign sources of law, as well as international opinion to interpret the United States Constitution. If this trend takes root in our legal culture, Americans might be governed by laws of other nations or international bodies that Congress and the President have expressly rejected. Inappropriate judicial adherence to foreign laws and tribunals threatens American sovereignty, unsettles the separation of powers, presidential and Senate treaty-making authority, and undermines the legitimacy of the judicial process.

. . .

To support the Court’s invalidation of the law of 20 states, the Roper majority cited among other things, the U.N. Convention on the Rights of the Child, a treaty in which the United States government expressly reserved “the right . . . to impose capital punishment on any person (other than a pregnant woman) . . .” when signing. Even more troubling is the fact that the United States Senate never ratified this Treaty. As a result, the Court was expressly citing a Treaty to which the United States has never formally assented. Remember the first 3 words of the Constitution’s preamble: “We the People.” Public servants swear an allegiance to uphold the Constitution of the United States, not to look to French popular opinion or the ruling of a court in Zimbabwe.

Now I don’t agree with everything Sensenbrenner is saying, but he does have a point about the judicial citation of treaties that the U.S. government has expressly rejected. This doesn’t violate “sovereignty” (whatever that means) but it does seem to run into serious separation of powers concerns. Effectively, the Court is bringing the U.S. into compliance with an international treaty that the Senate has refused to endorse. No wonder Congress is mad.

How to Fight Global Warming (Without a Treaty or a Statute)

by Julian Ku

A coalition of institutional investors and other non-govermental organizations are calling on U.S. corporations to disclose (or be required to disclose) economic risks from climate change and global warming. The highlights:

  • A New Climate Risk Disclosure Initiative will be aimed at enhancing corporations’ climate risk disclosure. The effort will focus on disclosure of corporate emissions, climate actions, scenario analysis, strategic analysis, and plans to address climate risks and opportunities.
  • UNEP and the UN Global Compact, working with leaders in the institutional investment community, are developing Principles for Responsible Investment.
  • A New Forum for International Investor Cooperation in Addressing Climate Risk will promote collaboration and information sharing among investors internationally about actions to address the financial risks and investment opportunities posed by climate change.

This f0llows the announcement last week ( noted by Peggy) that private banks of environmental standards governing their lending. Although I’m not necessarily in love with this attempt to pressure corporations, I think this sort of market-based, non-government attempt to address a potential environmental problem has go to be superior to the command-and-control approach espoused by treaty regimes like Kyoto.

More on the East Timor-Indonesia Truth Commission

by Julian Ku

The International Herald Tribune has a nice report on the increasing criticism of the East Timor-Indonesia Agreement to set up a Truth and Friendship Commission, which we discussed here. Here again we see a clash between the UN and human rights NGOs (who think the agreement could lead to impunity for human rights offenses) and efforts by two countries to settle lingering disputes from a very brutal civil war.

One interesting legal question: Can the UN force a war crimes tribunal on East Timor? The current agreement arguably violates UN Security Council resolutions requiring both countries to bring war crimes perpetrators to justice. The key player here (as always) will be the U.S., which is already trying to push the Truth Commission to get a little tougher and play ball with the UN.

UN Plans Move to Brooklyn

by Julian Ku

This is not a joke. According to this report in the NYT, the UN is considering moving temporarily to Brooklyn while its Manhattan headquarters is renovated. While some may see this as a step down for the UN, others (quoted in the article) suggest that the embattled UN will fit right in with Brooklyn’s underdog image. Maybe in the old days. But Brooklyn is hardly the hardscrabble borough folks imagine. In fact, some parts of Brooklyn are barely less tony, and maybe more so, than Turtle Bay.

Still, I can’t wait for the datelines: “This is the BBC, reporting live from UN Headquarters in…Brooklyn?”

And Now For Something Completely Different: the Arab/ South American Summit

by Chris Borgen

Arab and South American states are finishing a summit meeting to discuss methods of cooperation on a broad range of issue areas. (Reports by the BBC and by Le Monde.) Co-Chaired by the Presidents of Brazil and Algeria, the summit hoped to find a “coalition on cultural, economic, and political” issues between two key blocs of the “South.” My snappish title to this post notwithstanding, there has of course been many other instances of South-South coordination across geographic and cultural divides, perhaps most famously in the attempted New International Economic Order (or “NIEO”) from the 1970’s. Whether such attempts at political coordination actually amounted to significant changes in world politics or international law is another matter.

According to some reports, the U.S. is a quite concerned about this summit. The BBC reports that Washington asked to send an envoy with observer status but was rejected. Note to Arab and South American states: When Washington is actually willing to take part in an international conference, you should not shut the door. This just reinforces the view that this conference is about counterbalancing US power (which of course it is; and that’s a perfectly fine, realist, maneuver) but then you had better make sure that you are successful, otherwise all you’ve done is just ticked off the hegemon. (More on this in a moment.)

However, the U.S. has also had a bone-headed approach to this. Arab diplomats report that the U.S. has been lobbying them not to attend. We’ve gone from encouraging allies to build regional organizations to discouraging them from getting together and talking with each other. Just what do we fear will happen when our allies get together to talk without us? It makes us look paranoid. Such a strategy is a lose-lose for us: if we dissuade a delegation, then that country really resents us and the next time we need their cooperation (think: War on Terrorism) it is likely to cost dear. And if we don’t dissuade a delegation (and it looks like we didn’t dissuade a single one) then we just look weak and they all get together and really laugh at us. And we still look paranoid.

But, like I said, this gaffe may be overtaken by the Summit’s slamming door on the U.S. because, like I said, the U.S. will remember this and, unless the Summit is politically unified, the U.S. can simply split off sub-groups of states and deny the Summit their issues. So what are their issues? Take your pick, here’s a sample from the BBC report and from Le Monde:

“We’re seeking fair and just trade free of subsidies imposed by rich countries that ensures that poor countries receive the benefits of globalisation,” Brazilian President Luis Inacio Lula da Silva said…

The talks will end on Wednesday with a declaration that is expected to criticise Israel and back Syria.

The summit declaration is also expected to uphold the right of people to resist foreign occupation.

Argentina is seeking support for its claim to sovereignty over the Falkland Islands.

Le Monde reports that the Arab states are looking for South American support for a permanent Egyptian seat on the UN Security Council.

Le Monde also reports Brazil hopes to get one as well and would want Arab support in that quest.

A summit can promise all things to all people because it is more political theater than policymaking. Policies are hashed out in preparatory and follow-up committee meeting, in working groups and coordinating bodies. Whether this summit becomes an example of effective South-South cooperation will depend on follow-through and a willingness to horse-trade and compromise. The president of the Arab League has proposed a series of follow-up meetings and ongoing political coordination. Having started this endeavor with an antagonistic attitude towards the U.S., they will need to be tightly coordinated if they want to turn their wish list into political reality.

So, what are the chances that the conglomeration of South American and Arab states will be tightly coordinated? Let the bookmaking begin…

NAFTA Watch: Testing the Environmental Side Agreements

by Julian Ku

NAFTA included a set of side agreements intended to alleviate concerns about the environmental effects of the trade regime. One of the results of these side agreements, the Commission for Environmental Cooperation, has agreed to review a proposal for a Liquified Natural Gas project off the coast of Tijuana and San Diego. The complaint is brought by citizens’ groups, not the governments of NAFTA. The Commission, like a similar one created by DR-CAFTA, is advisory only so it is unclear how important this will be. But I suppose the Commission is a prototype for integrating environmental issues, and non-state parties, into the trade dispute resolution process.

ICJ Watch: You Only Have to Wait Three Years for a Preliminary Hearing

by Julian Ku

Not to beat a dead horse, but the ICJ’s announcement yesterday that it will hold public hearings in June to examine some preliminary aspects of a case filed in 2002 by the Democratic Republic of Congo against Rwanda further illustrates the slowness of the ICJ dispute resolution process. The original complaint was filed in the summer of 2002. These hearings on procedural issues (meaning that they will have to have another set of hearings if they want to reach the merits) will occur three full years after the original complaint was filed. Maybe it’s not the ICJ’s fault. But surely the legal and procedural aspects of this case (which do not involve any fact-finding) can be completed in fewer than three years???

UN Strengths and Weaknesses

by Peggy McGuinness

I promised a couple of weeks ago (before the end-of-semester crunch and some out of town travel) to follow up on a host of UN reform issues. Further posts are coming, but I wanted to bring attention to Suzanne Nossel’s “Top Ten Things the UN Does Well” over at Democracy Arsenal. I generally agree with the list — with the notable exception of “War Crimes Prosecutions.” It is perhaps overstating it to claim that there is general agreement that the ICTR, ICTY and Sierra Leone tribunals have been broad successes. Nossel’s riposte to herself, “What’s Wrong with the UN,” over at DanielDrezner (where she is guest-blogging) notes those things the UN has failed at. The list of weaknesses is remarkably short. And it begs the central question, which is whether some of these issues should be on the UN agenda in the first place.

Volcker Commission Wins TRO Quashing U.S. Congressional Subpoenas

by Julian Ku

The United Nations Independent Inquiry Committee investigating the UN Oil for Food Scandal (better known as the Volcker Commission) won at temporary restraining order today from the U.S. District Court in D.C. quashing congressional subpoenas ordering one of Volcker’s former investigators to turn over documents from his investigations. The TRO will apparently last 10 days allowing the Volcker Commission can make its legal case that the congressional subpoenas are not enforceable.

The law here is not nearly as clear as it might seem (although I haven’t seen the papers filed). The Volcker Commission’s position appears to be that the Convention on the Privileges and Immunities of the United Nations protects its staff, and even its former staff, from “legal process in respect of words spoken or written and all acts performed by them in their official capacity” under Section 18(a)’s grant of immunity for UN officials. Alternatively, the Volcker Commission might be deemed as “Experts” under Section 22’s narrower protection for “papers and documents”. (see here for the Volcker Commission’s letters to Congress and to attorneys for its former staffer who has already turned over docs to Congress.) Having just looked at this briefly today, I think the problem for the Volcker attorneys is whether Volcker staffers are UN officials or experts within the meaning of the Convention. This would depend on whether the UN has designated the Volcker Commission as “officials” and whether that designation is proper. There doesn’t seem to be much caselaw in the U.S. on this point.

My guess is that the UN wins here, but as a practical matter, the decisive factor would usually be the State Department’s views on the proper interpretation of the treaty. It seems unlikely, however, that they will get involved in a fight between the UN and Congress. So it may be that we may witness a rather unusual spectacle of a legal battle between the UN’s lawyers and Congress’s lawyers without Executive intervention. This might tip the balance toward Congress. We’ll see.

The Legality of the Iraq War: The UK Lawsuits

by Julian Ku

I wasn’t around last week to note these potentially interesting international law-based challenges to the UK’s involvement in the Iraq War.

First, a group representing the families of UK soldiers has filed a claim against the UK government (timed no doubt in an attempt to further influence the UK elections on Friday) under Article 2 of the European Convention of Human Rights. This is a very clever way to shoehorn the “illegality” of the Iraq War under international law into European law. Still, based on the plain text of Article 2, this seems like a fanciful claim at best:

Article 2
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.


Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;

c in action lawfully taken for the purpose of quelling a riot or
insurrection.


I’m no expert in European law, but it doesn’t strike me that ordering UK military troops into combat in violation of international prohibitions on the use of force. But this is certainly a creative way to get the legality of the Iraq War before the UK courts and possibly the European Court of Human Rights.

On another front, UK anti-war groups have also filed a complaint with the International Criminal Court alleging UK military officials have engaged in war crimes in the conduct of the Iraq War (this actually follows up an earlier complaint filed in December). The text of the complaint is not public, and the ICC (interestingly) has not announced this complaint on its website. But according to the UK press, the ICC will seriously consider opening an investigation.

Although the ICC’s jurisdiction apparently does not include the crime of “aggression”, the UK complaint here appears to charge not only disproportionate use of force in violation of the laws of war, but also the use of force at all given the lack of weapons of mass destruction.

All of this should remind U.S. observers that a collision between U.S. foreign policy (endorsed by both political branches and via proper constitutional processes) and the ICC is not the overblown fears of right-wing crazies. It is a very real possibility, as the ICC proceedings here with the UK demonstrate. Now it may be a good thing to have the ICC supervise the legality of the U.S. conduct of war (and not just the conduct of the war, but the actual decision to go to war). But defenders of the ICC in the U.S. can no longer claim that the ICC poses no serious challenge to the conduct of U.S. foreign policy.

International Banks Adopt Voluntary Environmental Standards for Project Financing

by Peggy McGuinness

JP Morgan Chase recently adopted a comprehensive environmental policy that would subject its international project financing decisions to review for their impact on global warming. In so doing, JPMC followed in the steps of Citigroup, which earlier this year announced a policy that would screen financings for their impact on deforestation. JP Morgan’s policy is remarkable for its scope and its language. Here are some excerpts:

Protecting the natural systems upon which all life depends while lifting people out of poverty and advancing economic development are among the greatest challenges confronting humanity. These three pillars of sustainable development are central to the UN Millennium Development Goals adopted in 2000. We recognize that the policies and practices we adopt today will shape not only our lives but also those of future generations. We therefore have an opportunity to make a positive contribution to environmental and social concerns by enacting policies designed so that our business operations do not degrade the environment or cause social harm. Such policies not only indicate positive environmental stewardship, but also present business opportunities such as innovative financial products and investments in sustainable forestry and renewable energy. This will help us better manage our risks, attract and retain critical talent, develop expertise, and provide clients with solutions to evolving exposures.
. . .
The scientific evidence provided by the Intergovernmental Panel on Climate Change (IPCC), a body created by the United Nations and the World Meteorological Organization, concludes that climate change is linked largely to the emissions of greenhouse gases caused by human activity, from the burning of fossil fuels, and deforestation. While there remains uncertainty regarding the severity of impacts, we believe that it is appropriate to adopt a precautionary approach to climate protection by working to reduce greenhouse gas emissions today.

That’s pretty amazing language, invoking both the UN millennium Goals and the scientific conclusions (at least in part) of the IPCC, the same conclusions that in part form the basis for the Kyoto Protocol rejected by the United States. (We discussed Kyoto here and here.)

What’s going on? Has JPMC gone “green” in the face of pressure from NGOs and other stakeholders concerned with balancing profits with social effects? In part, yes. The policy, which environmental groups have applauded , demonstrates how global networks of corporations and NGOs can create and adopt voluntary norms to address important transnational problems like environmental degradation where the international community has failed to do so (or at least succeeded only partially). But something else may be happening. Many of the projects financed by the big banks are taking place in countries that, unlike the US, are parties to the Kyoto Protocol and who, under the treaty, have greenhouse gas reduction targets to meet over the next decades. What we might be seeing is how a binding multilateral treaty obligation can, together with coordinated interest group behavior, create market incentives with environmentally friendly results.

Not everyone is happy with the policy. Some groups concerned with racial and social equality have criticized the measure as placing environmental considerations above human development. (See this discussion from the WSJ.) Perhaps this is not surprising: when multinationals act like governments, they find themselves caught between conflicting interests that are often difficult to balance. While we won’t see the impact of such policies for years, it is a trend worth watching, not only from the perspective of corporate responsibility and practices, but also as a piece of transnational “norm creation.”

May 4th Remembered

by Julian Ku

Today is an important anniversary in modern Chinese history. In 1919, thousands of Chinese students marched in Beijing and throughout China to protest the terms of the Paris Peace talks that led to Japanese control of German concessions in China. The “May Fourth” movement was the seminal political and intellectual event of the early 20th Century.

Of course, the Chinese authorities today are well aware of this anniversary and they have shut down the public protests to prevent a revival of the anti-Japanese protests they encouraged last week. They remember, of course, that the last Chinese government to allow protests on May Fourth fell soon afterwards.

Internet Withdrawal

by Julian Ku

A couple of us are out of town this week, thus blogging has been slow this week. Apologies. I will be back to full-time blogging next week. Indeed, I have gone almost 72 hours without logging on to the internet. It is nearly killing me, but my wife tells me this is good for me. I’ll be back soon.