Archive for
June, 2005

Suing Iran’s President: Never Say Never?

by Chris Borgen

In my original post I stated that, legally speaking, the embassy hostages issue was pretty much a closed case, and that a suit is unlikely to be successful against the President-elect of Iran. Julian put some meat on the bones of this statement in his post concerning the Algiers Accords and statutes of limitation. Upon more reflection, I think we might have missed the key issue. Although I still think that think that a suit against the Iranian president-elect in his personal capacity would probably not survive, I want to revisit why that is the case and also set out how I think there may be at least a possibility of a suit going forward.

As I understand it, the Algiers Accords would bar suits by the hostages against Iran but not against Ahmadinejad for his actions as an individual. (The most recent example of former hostages unsuccessfully trying to sue Iran itself is the Roeder case.) The only way the Accords would sweep in Ahmadinejad and bar actions against him would be is if we view the hostage-takers as having been an “instrumentalities” of Iran as opposed to merely “nationals” of Iran. The Algiers Accords bars suits against Iran and, for the purposes of the Accord, instrumentalities of Iran are part of the definition of “Iran.” That is not the case regarding “nationals.” So, while instrumentalities cannot be sued by U.S. nationals or by the U.S. government outside the Iran-U.S. Claims Tribunal (for actions related to the hostage crisis), I do not think there is any such bar against suing nationals.

So, were the hostage-takers instrumentalities and thus immune to suit? Viewing the individuals as instrumentlaities of Iran would go beyond the ICJ’s findings in the Diplomatic and Consular Staff Case, which found that the hostage-takers were not agents of the Iranian state. (However, responsibility for the hostage crisis could still be imputed to Iran based on Iran’s obligations of diplomatic protection. See especially paragraphs 56-61 of the Judgment.) One could argue that if the hostage-takers are not instruments of Iran, then claims against them on a personal basis are possibly not precluded by the Algiers Accords.

But, what about the statute of limitations?

As Julian correctly observed, a suit against Ahmadinejad would still have to overcome the statute of limitations of the statute under which the suit arose. However, I do not think the relevant statute would be the Alien Tort Statute, as that would apply only to a suit by an alien. Rather, we would look to U.S. antiterrorism laws and, there is now a move to remove statutes of limitations from the most serious offenses in these statutes. (I am not sure whether these amendments have been enacted.) Where time limitations still exist, they are in the five to ten year range. So, if the acts of Ahmadinejad were those that fall into the “most serious offenses” category of certain terrorism laws, and if the statute of limitations had been removed, then the suit may not be time-barred. Otherwise, it is barred as Julian argued. But the relevant statute of limitations would likely be based on an anti-terrorism statute, not the Alien Tort Statute.

Let’s say that there is no applicable statute of limitations. Does the suit survive? Probably not at this time. The litigants would face the possibility of Head of State immunity. The President-elect would likely be found to have such immunity for his term in office. This leaves a possibility of a suit after he leaves office for any alleged crimes he committed before he was in office but, while he is in power, he would probably have immunity from judicial proceedings.

So I think that, at the end of the day, it is unlikely that a suit will be maintained. But I don’t think the reason is based on the Algiers Accords or the Alien Tort Statute but rather the statute of limitations of an anti-terrorism statute and Head-of-State immunity. And, depending on whether or not a relevant statute of limitations actually exists, I think there may be a slim chance that a suit can be maintained, though not until after Ahmadenijad leaves office.

Can Former Hostages Sue Iran’s New Leader?

by Julian Ku

Just to follow up on Chris’ post on Iran’s new leader. Ordinarily, the former hostages might have been able to sue the new Iranian prez in U.S. courts under the Alien Tort Statute. But they would face innumerable obstacles including a 10-year statute of limitations. But most importantly, it appears that the 1981 Algiers Accords, which resulted in the release of the hostages in the first place, bars any such claim. Here is the key language:

11. … the United States will promptly withdraw all claims now pending against Iran before the International Court of Justice and will thereafter bar and preclude the prosecution against Iran of any pending or future claim of the United States or a United States national arising out of events occurring before the date of this declaration related to (A) the seizure of the 52 United States nationals on November 4, 1979, (B) their subsequent detention, (C) injury to United States property or property of the United States nationals within the United States Embassy compound in Tehran after November 3, 1979, and (D) injury to the United States nationals or their property as a result of popular movements in the course of the Islamic Revolution in Iran which were not an act of the Government of Iran. …

Moreover, former hostages can’t even go to the Iran-U.S. Claims Tribunal because that tribunal’s jurisdiction is limited to claims that : “arise out of debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriations or other measures affecting property rights, excluding claims described in Paragraph 11 (see above).”

This language looks pretty airtight to me. Moreover, even though the Algiers Accords are merely an executive agreement, and not a treaty, the Supreme Court has ruled that they do have domestic legal effect.

So, sadly, the former hostages are out of luck here.

Was the Iranian President-Elect One of the Tehran Embassy Captors?

by Chris Borgen

CNN reports that several former hostages of the 444-day US embassy hostage crisis in Iran believe that Iranian president-elect Mahmoud Ahmadinejad as one of their captors. Other reports stated that he was believed to have acted in a capacity akin to chief of security for the hostage-takers. The aides of the president-elect have denied the allegations and former members of the hostage-takers have also denied his involvement.

Although, as a legal matter, the US and Iran had viewed the Iran hostage crisis as a closed matter (but for the claims being resolved before the Iran-US Claims Tribunal), as a political matter this may further sour diplomatic relations and make some sort of detente more difficult.

Stay tuned…

First Step Toward a North American Union?

by Julian Ku

Some folks get excited about “global governance” and “world government”. But while there are some trends toward global integration in the form of free trade and greater international cooperation, I sometimes think the more likely trend will be toward regional integration. The recent setbacks for the EU notwithstanding, regionalism is more likely to occur because of competition from other regions. Hence, the growth of the EU might force the U.S. to get more serious about integrating with Canada and Mexico. Such integration might push the Latin American countries to bind themselves together more. And then the Africans respond by tightening the African Union, etc. etc.

At least in the short term, there seems little prospect of greater North American integration as U.S.-Canadian relations remain at an all time low and anger of illegal Mexican immigration grows in the U.S. There has been a lot of chatter in the thinktank world about a “North American Community” modeled on the E.U. (say bring in the Central American and Caribbean countries, create a North American Trade Court and integrate labor and environmental laws), but I think this remains a bit of a pipe dream for now, especially as the threat of deeper E.U. integration recedes.

The three countries have currently eschewed steps toward a more formal union and have instead settled on a “Security and Prosperity Partnership ” that simply pushes inter-agency cooperation along a number of lines: public health, intellectual property, regulatory streamlining. While this and future initiatives might be the first step toward a “North American Union”, the fuzzy non-binding aspect of the SPP might also signal that integration has reached its limits.

Borgen on Treaty Conflicts

by Chris Borgen

Just in time for beach reading season, I have just posted to SSRN my newest article, Resolving Treaty Conflicts, which is coming out in the George Washington International Law Review.

I grapple with the question of what States should do when they are signatories to multiple treaties (such as, say, a trade agreement and an environmental agreement) that frustrate each other’s goals. While there are rules that States have written to resolve these conflicts, I argue that the rules are not really followed much. In a world where treaties are rapidly proliferating, is there any principled way that these conflicts can be solved? And, if there is not, can one say that international law is a coherent legal system?

The abstract and download are available here.

Treaty Interpretation Equals a Political Question? DC Circuit Dismisses "Comfort Women" Suit Against Japan

by Julian Ku

In an important decision on treaty interpretation and the political question doctrine, the D.C. Circuit yesterday affirmed the dismissal of a lawsuit brought by a number of Korean, Taiwanese, and Filipino women who alleged rape, torture, and other abuse at the hands of Japanese soldiers during World War II. The lawsuit was brought under the Alien Tort Statute and had been originally dismissed by the district court on sovereign immunity grounds. The Supreme Court remanded, however, for reconsideration and the D.C. Circuit has a new reason for dismissal: “the case presents a nonjusticiable political question: namely, whether the
governments of the appellants’ countries foreclosed the appellants’ claims in the peace treaties they signed with Japan.”

As I’ve noted earlier, Japan is still facing serious fallout in Asia from its WWII behavior, especially in S. Korea and China. And my own belief is that Japan is still responsible in some way for the serious crimes their army committed in the WWII. But, as a legal matter, both Korea and China (and Taiwan and the Philippines) may have waived any claims by their nationals via peace treaties with Japan.

What is interesting here is that the D.C. Circuit refused to resolve whether or not the claims have in fact been waived by the treaties. Instead, it has invoked the always murky “political question” doctrine to dismiss the case on the theory that interpretation of the treaties here would interfere with the executive’s conduct of foreign affairs. Usually, the question of treaty interpretation is a matter of deference to the executive branch’s interpretation, at most, but here the D.C. Circuit went farther. It noted that if it adopted an interpretation of a treaty between two other countries like a treaty between Japan and Korea, it might unduly upset foreign relations with one or both of those countries. Here is the key graf from the decision by Chief Judge Ginsburg:

Is it the province of a court in the United States to decide whether Korea’s or Japan’s reading of the treaty between them is correct, when the Executive has determined that choosing between the interests of two foreign states in order to adjudicate a private claim against one of them would adversely affect the foreign relations of the United States? Decidedly not.

I’m sympathetic to this approach, although I wonder how far the court or future courts will push this application of the political question doctrine. Why shouldn’t any treaty interpretation by courts which the “Executive has determined … would adversely affect the foreign relations of the United States” become a political question? The answer, I think, is that treaties the U.S. has signed are “Laws of the United States” under the Constitution and therefore different. I suppose this is the distinction, but it is not an entirely satisfying. If I were the U.S. government, I would definitely invoke the political question to try to limit the use of the Geneva Conventions in the Guantanamo cases currently being appealed to this same court.

Timor-Indonesia Standoff: U.N. Panel Calls for New International Tribunal

by Julian Ku

A U.N. Commission of Experts has recommended that the Security Council push Indonesia to re-open trials of individuals suspected of committing war crimes in the Timor-Leste (East Timor). Indonesia has conducted prosecutions via an ad hoc tribunal, but according to the commission, these prosecutions were little more than sham trials.

I haven’t seen the report which is not available online, but I’m not exactly sure what more the U.N. can really do here. (The article in the Guardian oddly suggests a referral to the International Criminal Court, which wouldn’t have jurisdiction however since most of the alleged crimes took place in 1999). As I noted earlier, Indonesia and Timor-Leste have agreed to create a Truth and Friendship Commission. The UN Commission appears to find that commission problematic. But will the U.N. really intervene to upset the attempt by the two parties to settle their war-related claims? Should it?

WTO Watch: U.S. Cotton Farmers Brace for WTO-Mandated Subsidy Cuts

by Julian Ku

This very interesting piece from the St. Louis Post Dispatch notes that the U.S. is obligated to announce its measures for implementation of a March WTO decision requiring cotton subsidy cuts by Friday (July 1) and that many cotton farmers are understandably nervous about the expected cuts.

This may make the WTO seem fairly powerful, but in reality, the U.S. could ignore this WTO ruling. It won’t because, among other things, Brazil’s Congress is poised to pass retaliatory legislation if the U.S. doesn’t comply to the extent Brazil believes is required. And because it is a policy commitment of the U.S. that international trade, even as interpreted by the WTO, is better than the alternative. After all, the U.S. wins as much as it loses, as it did yesterday in its apple claim against Japan and in its defense of chip duties against S. Korea.

To be sure, this policy commitment is beginning to falter, and surely there will be payback against the White House and the Congress if they do cut the farmers’ subsidies. And maybe a future U.S. government will give it up and say the WTO isn’t worth it anymore. But because that is always an option, it is important to remember that in the end cuts will ultimately be the responsibility of the WH and Congress, not the WTO.

New Blog on UN Documents and Information

by Chris Borgen

The reference library at the UN has sent out an announcement stating:

Dag Hammarskjöld Library at the UN Headquarters in New York is announcing the creation of a new blog called “UN Pulse: Connecting to UN Information.”

The blog focuses on just-released UN system-wide online information, major reports, publications and documents and we have included a category called “International Law.” Created and maintained by a team of reference librarians at the United Nations headquarters in New York, UN Pulse is updated as new information is published and received.

Considering how difficult it was to get UN documents just a few years ago, this blog (and its links to documents) could greatly simplify UN research and keeping up-to-date on UN-related issues.

The John Bolton Question

by Chris Borgen

David Bosco, the Senior Editor of Foreign Policy Magazine and an international lawyer, has a thoughtful piece on John Bolton in the Bulletin of Atomic Scientists. I think it is worth reading by Bolton apologists and critics alike because it gets away from the heated rhetoric from both sides and uses the Bolton nomination to ask some tough questions about what we as American citizens want our foreign policy to look like.

Bosco argues that while Bolton may have a distasteful personality, he brings up many arguments that resonate with many Americans, such as a concern that international law is idealistic and does not address the realities of power and that various international institutions are undemocratic and threaten U.S. civil liberties. In part, Bosco tries to rescue Bolton’s argument from Bolton’s personality.

However, Bosco does overreach at times, such as his echoing concerns over whether the US would be bound by a hypothetical customary international rule banning the death penalty. This argument is a chimera often brought up by conservatives critical of international law’s effect on domestic civil and political rights. Inasmuch as the US has consistently objected to such a rule, it would not be bound. Conservatives, however, have been relatively mute in opposing (or have actually been enthusiastic in supporting) the enforceability of customary rules that protect property rights, such as norms against expropriation.

Bosco also considers the hyperbole and the streak of “nationalist paranoia” entwined in Bolton’s views on the ICC and the weird mix of cold nationalism and hot moralism that you can get from Bolton on a variety of issues.

But, while Bosco turns the Bolton nomination into a prism that splits the spectrum of American foreign policy thinking, this does not mean, in my opinion, that Bolton would be a good representative for the US at the UN. Bosco gets around this by asking too easy a question: how many Americans can remember their recent UN representatives? Well, we can also ask how many American can name all nine Justices of the Supreme Court; the fact that polls show most Americans cannot does not mean that each Justice isn’t very important. The Secretary of State is not the day-to-day dealmaker at the UN, the US Ambassador is.

The real question is what does the Administration want to get done through the UN and what kind of diplomat can achieve those goals? The US needs to rally the allies to help in our efforts in Afghanistan, in Iraq, in the War on Terror. We need someone who could muster support for possible future UN resolutions concerning North Korea or Iran or Syria or some other yet-to-be-determined hotspot. And we need someone who can manage a large staff and focus their strengths on issues such as Security Council reform. Can John Bolton do this? Does he even believe working through the UN is a worthy exercise? Are we nominating him to make the UN effective or because we don’t like the UN?

I appreciate Bolton as a prism. I am very concerned about Bolton as a diplomat.

U.S. Admits To Torture?

by Julian Ku

This report from Agence France Press suggests that the U.S. has broken new ground in admitting to torture when it filed its report to the Committee Against Torture, a report that is required by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Here is the triumphant reaction by UN officials:

‘They are no longer trying to duck this and have respected their obligation to inform the UN,’ the Committee member said. ‘They they will have to explain themselves (to the Committee). Nothing should be kept in the dark,’ he said.

I’m not so sure this is a big deal. The report, which is posted here, is filed because, well, the U.S. is obligated to file them and has been doing so since 2000. Moreover, it sticks to the U.S. policy that President Bush and Secretary Rumsfeld keep repeating, but that none of their critics seem to believe. Here is the bottom line from the U.S. report:

The United States is aware of allegations that detainees held in U.S. custody pursuant to the global war on terrorism have been subject to torture or other mistreatment. The President of the United States, as noted above, has clearly stated that torture is prohibited. When allegations of torture or other unlawful treatment arise, they are investigated and, if substantiated, prosecuted. These issues are addressed in detail in this report and its annexes with a view to conveying the seriousness of the commitment of the United States
on these issues.


The actual acknowledgments about Guantanamo, Iraq, etc. are contained in Annex 1 to the Report. But there is no news here. All the report does is summarize the results of U.S. investigations into abuse in Guantanamo, Iraq, and Afghanistan. These investigations have already been made public (and have already been rejected by many critics of the U.S. administration). There are no new admissions, as far as I can tell, and there is no departure from U.S. policy here.

So, all we have here are some anonymous U.N. officials in Geneva blowing some smoke to puff up their organization’s importance. Big surprise…

Pax Sinica? China Beats U.S. in European Popularity Contest

by Julian Ku

Wow! According to this survey, China is more popular among the public in 16 Western European countries than the U.S. This proves that anti-Americanism is remarkably widespread and deep in Europe. And it also suggests that the public, even in liberal democratic Western Europe, don’t care very much about human rights violations, as long as they occur in other countries far far away or unless they are committed by the U.S.

OK, OK, that last bit is a little unfair. The same survey actually shows some improvement in the U.S.’s image and that the European public is not thrilled about the idea of China becoming a military rival to the U.S. Moreover, it also reflects the effectiveness of China’s diplomatic and PR machine.

But the bottom line: China is not a liberal or democratic country. It is currently imprisoning a lot more people indefinitely in its laogai camps than the U.S. could hope to squeeze into Guantanamo. It has missiles pointed at Taiwan and continues to maintain a quasi-military occupation of Tibet. Oh yeah, they have the death penalty and the use it even more frequently and unfairly than Texas. So why do the European publics have such a favorable view of China?

Answer: Because Europeans do not really care all that much about U.S. human rights abuses, etc. What they really resent is American power and dominance and they would prefer anyone, even China, as a counterweight in order to teach those Americans a lesson. This is understandable. But careful what you wish for. Pax Americana may not be much fun, but I’m fairly confident a Pax Sinica would be far worse.

Some Really Cheap Tokyo Real Estate

by Julian Ku

While Japan has been scheming to overturn IWC limitations on its whaling activities, it has also been finding new ways to annoy its neighbors. The most hilarious of these is Japan’s attempt to establish Okinotori, an uninhabited series of rocks/islands in the Pacific. Japan has done this by assigning Okinotori a Tokyo address thereby making it part of the municipality of Tokyo. The address is: No.1, Okinotori Island, Ogasawara Village, Tokyo. Of course, Okinotori is just a bit farther from Tokyo’s downtown than most Tokyo suburbs. In fact, it is over 1700 km south of Tokyo. This is ridiculous. It’s like the City of New York establishing an address on Bermuda.

Of course, the whole point of this is that if Okinotori is an island that is part of Japan, Japan also gets the undersea economic development rights around the island pursuant to the Law of the Sea Treaty. China’s reaction actually has been relatively muted.

This whole dispute seems a very good candidate for an international court or arbitral tribunal. While there is a bit at stake, it’s not something that the two countries are probably willing to fight over. Plus, the legal determination seems like an interesting one: is a rock that is merely two miles long at high tide an island within the meaning of Article 121 of the Law of the Sea. And an agreement to refer to an international tribunal would be a good confidence-building measure in a relationship that needs plenty of confidence-building. But we’ll see.

The Case for Not Inviting the UN Human Rights Commission to Guantanamo

by Julian Ku

All the major media has picked up an announcement by “UN Human Rights experts” that they have reliable allegations of torture or mistreatment at Guantanamo Bay and that the U.S. has been “stalling” and denying them access to the base.

Putting aside the merits of their allegations for the moment, it is worth pointing out that the U.S. has no legal obligation to allow the UN experts to visit and, further, that these “UN experts” have been dispatched by the much-derided UN Commission on Human Rights. Of course, none of the media reports have made this clear.

Technically speaking, the UN expert in question is a Special Rapporteur appointed by the Commission to investigate allegations of torture. Special Rapporteur’s mainly make news by making “special visits” to countries to investigate allegations. Here’s the catch: they can only make visits if they are invited. But there is no legal obligation to invite them under U.N. human rights treaties or the UN Charter. It is purely discretionary among member states, and members states often don’t even bother responding to these requests for invitations.

The U.S. in particular might reasonably exercise this discretion against invitations given their track record. Special Rapporteurs have carried out six visits to the U.S. in the past to investigate allegations of “extrajudicial executions” (e.g. why the U.S. should give up the death penalty), “suppression of religious freedom” (if anything, the problem in the U.S. is too much religion), and the “right to education” (the U.S. should spend more money on education), etc., etc. These reports are not horrible, but they don’t reflect any particular expertise or insights on anything other than very broad notions of what international law requires.

Let’s be honest. The Commission is very close to a laughingstock right now, and its special rapporteurs are annoyed because everyone (not just the U.S.) ignores them. What better way to raise the Commission’s profile, and that of its rapporteurs, then holding a press conference to accuse the U.S. of stalling in allowing a visit to Guantanamo. Very smart, and it just might work .

Whale Wars (Cont’d): Japan Loses, But Plans to Eat as Many Whales as It Wants Anyway

by Julian Ku

Contrary to what news reports were suggesting earlier, Japan has lost its attempt to shift IWC rules on the number of whales it can catch under a 19 year old moratorium. Instead, it has announced that it will expand the number of whales it catches under the “scientific research” exception to the IWC moratorium.

…any contracting government may grant to any of its nationals a special permit authorising that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the contracting government thinks fit…

If this exception always existed, one wonders what all the posturing in the IWC is about. As I suggested earlier, Japan will probably eventually leave the IWC (it has apparently threatened to do so today). But why? It seems Japan gets most of what it wants without leaving.

In any case, keep an eye out for the newest addition to your local sushi bar’s offerings: Whale sushi, anyone?

Richard Goldstone: The Opinio Juris Interview

by Peggy McGuinness

Opinio Juris is pleased to publish the first in an ongoing series of blog interviews with preeminent practioners, scholars and jurists in international law. We are honored that our first interview is with Justice Richard Goldstone. Justice Goldstone’s stepped down last year as a Justice of the Constitutional Court of South Africa, on which served from its establishment in 1994 until 2003. He was Chief Prosecutor for the International Criminal Tribunals for Former Yugoslavia and Rwanda from 1994-1996. From 1991 – 1994, he served as Chairperson of the South African Commission of Inquiry regarding Public Violence and Intimidation, which came to be known as the Goldstone Commission and which played a key role in the transition from apartheid to democracy. Since April 2004, he has served as a member of the UN Secretary General’s Committee To Investigate the Iraq Oil-for-Food Program. He has been a visiting professor of law at NYU, Fordham and Harvard.

International Criminal Tribunals for Former Yugoslavia and Rwanda

OJ: You were the first prosecutor at the ICTY with joint responsibility for the ICTR, the first truly international criminal tribunals with jurisdiction to prosecute war crimes and crimes against humanity. Looking back over the past ten years of the ICTY and ICTR, what have been the greatest achievements and successes of those courts?

RG: In my opinion the greatest success of both tribunals has been to put an end to the denials that were so widespread before they were established. The evidence of hundreds of witnesses in both The Hague and Arusha has established a history that will be taught in those regions in the future. This, I would suggest, lessens the prospects for a repetition of the egregious violations of human rights that accompanied the events that were investigated.

OJ: What have been the biggest disappointments?

RG: The greatest disappointment has been the failure to arrest Karadzic and Mladic and send them for trial in The Hague.

OJ: What is your assessment of the Milosevic trial?

RG: From a forensic point of view, the trial has been impressive in the evidence presented by the Prosecution. My criticism relates to the excessive leniency shown to Milosovic by the judges during the prosecution case. He was allowed to demean the court and the judges and to use the trial as a platform to propagate his nationalistic politics and play to his supporters at home. The judges only too late began to curb his misuse of his right to defend himself.

OJ: Will the ICTY be deemed a failure of Milosevic is not convicted?

RG: If Milosovic is not convicted, an unlikely event, I do not believe that is relevant to the reputation of the ICTY. Indeed, it would demonstrate the fairness of the proceedings.


International Criminal Prosecutions

OJ: The ICTY and ICTR set the groundwork for the creation of the International Criminal Court. You have been a strong supporter of the ICC since before the ratification of the Rome Treaty. Many rationales have been laid out for the existence of an ICC, among them ending impunity for war criminals, deterrence of future crimes, permitting closure for victims. Those opposing the court have expressed concerns about selective or politically motivated prosecutions and also interference with amnesties and peace processes necessary to settle armed conflicts. What do you see as the most important rationales for the court? How do you respond to the critics?

RG: The main rationale for the ICC is the end of impunity for war criminals. That is in the interests of all democratic nations. The United States has led the movement to establish the UN ad hoc tribunals for the former Yugoslavia and Rwanda and indeed also for the ICC. Its main objection to the latter is the US inability to have a veto over the investigations of the ICC. It wished the Security Council to hold the sole trigger to commence investigations. When that was rejected by the overwhelming number of nations in Rome, it turned its back on the ICC.

OJ: What is your assessment of their current work?

RG: It is still too early to judge the current work of the ICC.

OJ: Is it a coincidence that the only referrals to date have been on questions relating to conflicts in Africa?

RG: I suppose it is a coincidence that the first four cases have come from Africa. It is a good thing, however, that Africa leads the number of nations having ratified with 27 compared to 25 from Europe.

OJ: The ICC Prosecutor is currently being pressured by Ugandan NGOs to suspend its investigation of Ugandan rebels during pending peace negotiations? Do you think that the ICC Prosecutor should have the ability, once a referral has been made, to grant guarantees of non-prosecution to aid in the completion of a peace settlement? If not, how would you advise the ICC prosecutor to act here?

RG: With regard to the Uganda prosecution, in my view the Prosecutor should not become part of the political process. If a suspension of the prosecution is considered desirable for peace negotiations to proceed, then the Security Council should be approached to make such an order – it is entitled to do so under Article 16 of the Rome Statute.

OJ: The United States, of course, is not a party to the ICC statute. How does the absence of the US affect the ICC? Can it be a success without the US?

RG: Without the support of the US, the ICC is obviously weakened. It was the economic and political clout of the US that assisted the ICTY and ICRT is so many material respects. I do believe, however, that the ICC will be able to succeed without that support. It is my sincere hope that in the not too-distant future the US will lead the Assembly of States Parties.

Use of Foreign and Comparative law in US constitutional cases

OJ: There is a great deal of controversy in the US today over the use of foreign case law and international law sources in the interpretation of US constitutional law. Justice Kennedy’s reference to the European Charter of Human Rights and discussion of European laws in Lawrence v. Texas and to several international human rights treaties and to foreign practice on the question of the juvenile death penalty in Roper v. Simmons come to mind. In both cases, Justice Scalia dissenting, marshalling arguments that what foreign parliaments and courts do is of no moment to US interpretation of the US Constitution. When you were on the Constitutional Court of South Africa, that Court cited to foreign and international sources of quite often; indeed, the South African Constitution explicitly permits reliance on international and comparative sources. What do you make of the debate in the US?

RG: The debate on the use of foreign law in the US Supreme Court is linked directly to the “originalist” philosophy associated with Justice Scalia. His real objection is to modern law rather than to foreign law.

OJ: Should it make a difference if a constitution explicitly incorporates international law into its text, like the South African and other constitutions do, versus the U.S. Constitution?

The use of foreign law by the South African Constitutional Court has been of great assistance. For a new constitutional state, without any precedents, the position is very different from that in an older democracy such as the United States. So, the debate is a very different one.

Legal Studies and Practice

OJ: You have had an impressive career in law, public service and more recently legal academia. What has been your favorite job to date? How would you advise students interested in a career in public international law approach their studies?

RG: My favorite job to date has been sitting as a Justice of the Constitutional Court of South Africa. A close second has been teaching in US law schools during the past 18 months.
I have enjoyed in particular teaching international humanitarian law. Together with other aspects of international law it has become of daily relevance. I would certainly advise students who are not required to study international law to elect to do so. Our world is contracting rapidly and few areas of the law have not become trans-national.

Fear and Loathing in Brussels

by Chris Borgen

Maybe April is the cruellest month, but May and June haven’t been so great for the European Union, either. First there was the collapse of the EU Constitutional process at the hands of the French and the Dutch. And now there is a budgetary debacle that redoubles the perception that the “European project” is in crisis.

In short, negotiations over the EU’s seven-year budget crashed under the anger and recriminations over the state of Europe. The immediate problem was a bitter argument between France and Britain. France wanted Britain to decrease some of the $6 billion it receives in a rebate each year from the EU. According to Chirac “The United Kingdom refused to contribute its fair and reasonable share to the cost of enlargement.” Moreover, as the NY Times reported on Saturday:

Germany’s chancellor, Gerhard Schröder, stood behind Mr. Chirac. He attributed the impasse to “the stubbornness” of Britain and the Netherlands, and in particular he accused Britain of “not helping the new countries.”

The UK, for its part, responded that it would not do so until France was willing to decrease the $13 billion it receives each year from the EU in agricultural subsidies. This is not open to debate as far as France is concerned.

Of course the debate is really about much more than this. In part, what was really going on is a blame game over the current state of European affairs. France’s President Chirac is probably trying to deflect some of the heat he’s facing over France’s “No” vote by focusing on Britain’s refusal to reduce its payments from the EU. This aspect led to the embarrassing turn of events that the ten newest members of the EU (largely relatively poor from Eastern and Southern Europe) agreed to give up some of their EU aid to help balance the budget and allow the rich countries to keep receiving most of their EU aid. Let’s repeat that: the poorest countries would give up some of their EU benefits so that the richest could keep theirs. According to the Sunday edition of the NY Times:

…for the older members, it was a humiliation. “When I heard one after the other, all the new member states – each poorer than the other – say that in the interest of an agreement they would be ready to renounce part of the money they are due, I was ashamed,” Jean-Claude Juncker, Luxembourg’s prime minister and the departing European Union president, told journalists after talks collapsed.

But no one was ashamed enough to actually accept the deal.

That is because this argument is not just about money. It is about defining what the EU will look like now that so much is up for grabs after the collapse of the draft constitution.

Tony Blair wants to push Europe away from the statist “social” model of Europe preferred by the Continental powers. France and Germany are trying to keep alive the system of financial redistribution and a social safety net (remember much of the French “No” vote was attributable to fears that the draft constitution was too “Anglo-Saxon” and not “social” enough).

And now Luxembourg, one of the champions of the social model, is leaving the EU rotating presidency and the presidency is being passed to… Britain. But I don’t know how much one can expect in terms of a new direction for the EU. While Tony Blair is supposedly working up a comprehensive vision to revitalize the EU with more market-oriented policies, according to the NY Times,

…the feelings against Britain among some other members are so raw that even Mr. Juncker, who is passionate about collegiality, said that he would “not be listening” when Mr. Blair outlines his priorities to the European Parliament next week. He said he would hand over the presidency “without comment and without advice, because clearly my advice is not appreciated.”

Regardless as to whether they listen to each other or not, this is a defining moment for Europe. I think that some form of deeper European integration is probable (largely due to the monetary union that has already occurred) but whether significant deepening is delayed by a decade or two may be decided by what Tony Blair, Jacques Chirac, and Gerard Schroder do in the next year.

Whale Wars: Why Does Japan Bother with the IWC?

by Julian Ku

I’m back! Not that anyone would have missed me, with all those great Roger Alford posts from India. Still, nothing lasts forever. So back to my wacky idiosyncratic interests…

Japan may have gathered (or bought) enough votes on the International Whaling Commission to lift a moratorium on whaling that has been in place for the last two decades. As I discussed before here, this is a fairly important political issue in Australia, where the opposition party is calling for Australia to sue Japan in the ICJ to stop the whaling (although the basis for such a suit continues to elude me).

The “new” Japan continues to act more aggressively overseas to protect its interests, although here it is working through an established international organization. It apparently convinced three new countries (Togo, Gambia and Nauru) to join the IWC and support its position, probably by reminding those countries of how much development aid Japan doles out every year. On the other hand, this is a game two sides can play. In recent years, the UK and Australia have been recruiting anti-whaling countries from Europe to the IWC (Austria, Luxembourg, Mali and Mongolia).

This trend in vote-buying is probably not healthy. The IWC has been a fairly successful international organization largely because it is a small, narrowly directed organization reflecting the mutual interests of its members. The whaling countries (Japan, Iceland, Norway) get to whale, but their numbers and methods are overseen by the IWC, and can be adjusted to reflect new data on whaling populations, etc. It is not an organization that is trying to ban whaling; rather it reflects the interests of its members, many of whom want to continue to whale, but want to accommodate the interests of other members that have stopped whaling and now oppose it. Even convincing the whaling countries to limit their whaling in the past two decades is a great triumph, all things considered.

The old IWC was literally composed of the various countries with whaling industries. The idea was to work out mutual agreements to divide up whaling populations and limit their whaling. The new IWC, with landlocked countries like Luxembourg on board that obviously have no whaling industry, is increasingly attempting to become a regulatory body. But in the long run, this won’t succeed. why should Japan subject its whaling methods to oversight by Austria and Luxembourg? So far, Japan has accepted pretty stringent regulations. But why should that continue as the IWC increasingly become a body of countries all devoted to ending the practice of whaling? If things continue to go this way, I imagine Japan will eventually quit the IWC.

Thanks to Roger Alford; More to Come

by Chris Borgen

On behalf of the three of us, I wanted to thank Roger for his stint–hopefully the first of many–guest blogging at Opinio Juris. We will have other guest bloggers in the weeks and months (and years?) to come. I doubt many will be blogging while travelling around India, though.

Thanks again, Roger, and we hope you blog again with us in the near future.

Response from Kontorovich on Foreign and International Sources

by Peggy McGuinness

Professor Eugene Kontorovich has kindly sent along the following comments to my earlier post:

I was happy to read the thoughtful discussion here of my Green Bag article. In that article, I took issue with proponents of using foreign law in constitutional interpretation who quote as originalist support for their position the Declaration of Independence’s reference to a “decent respect for the opinions of mankind.” I showed that “decent respect” did not refer to following the opinions of others, but merely explaining to them our actions – and even then only when doing so might gain concrete political benefits for America. Professor McGuinness responds with several points, which raise interesting questiosn. I’ll discuss each in turn.

I’ll begin with clarifying a point from my article that Prof. McGuinness mentions. My article acknowledges that the Framers used the Declaration in part to secure the international law benefits of recognition and trade relations. I would not make too much of this fact in the context of the present debate. The point is distinct from the Founder’s invocation on the “opinions of mankind,” and also from the question of looking to foreign law. Members of the Congress believed a formal announcement of the birth of the new nation was needed because it is a prerequisite to recognition and treaties; that is why they agreed to issue the Declaration. But that motivation behind the Declaration is also distinct from the primary motivation of convincing Britain’s enemies that the Colonists break with their mother country was irreparable. It was the latter purpose that gave rise to the phrase “a decent respect to the opinions of mankind requires that they declare the causes” of their revo
lution. Securing the “international law” benefits could be done by a simple pronouncement of independence; convincing others that we were serious about it required a recitation of unpardonable sins of Britain.

Professor McGuinness suggests that the Founder’s selective definition of “mankind” – basically, France and Spain – undermines my argument that one of the dangers of using foreign law is that judges will use it selectively. What’s wrong with the Justices looking only to the laws of our “friends” to gain their “respect” if the Framers appealed to the opinions of potential allies? If the Framers tried to ingratiate us with other nations by convincing them of our determination to fight Britain in the Revolutionary War, what’s wrong with the Court ingratiating us to allies by showing our distaste for the juvenile death penalty today?

This rather gets to the heart of the matter. The difference is the Declaration was written by Congress, Roper by the Court. Trying to ingratiate America with foreign countries is a matter of pure foreign policy and is not a goal that the Court is constitutionally authorized or institutionally capable of pursuing. Ingratiation has costs – here, the abandonment of an instrument of criminal punishment. Whether those costs are worth the benefits in increased “respect” is surely a determination for the political branches. I, for example, predict that this increased “respect,” if it has in fact been won by Roper, is worth little in itself to all except a small American elite, and certainly will not make any practical difference to our foreign relations. Maybe I’m wrong, and the internationalist turn in constitutional interpretation will make us popular where we previously were not, and open the door all sorts of foreign relations benefits. But the question is clearly debatable, a
nd it is not a debate for lawyers or judges to be involved in. It is purely a policy matter. In other words, Congress and the President can look over the crowd of nations and pick out our friends. The Court is not even in position to determine the political question of who is a friend, and the even more political question of which friends’ respect we should try to gain. (Saudi Arabia, for example, is a “friend,” but surely the Court would not try to hard to win its respect by adopting Saudi notions of punishment.)

I agree with Professor McGuinness that the Eighth Amendment can, in principle, be distinguished from others in terms of the appropriateness of looking to foreign law. I’m not sure I agree with this view, but it is certainly plausible to argue that the word “unusual” invites a comparative analysis. However, while this distinction can be made, I do not think it has or will be made by the Court. The Court’s recent use of foreign law has not been limited to the Eighth Amendment – Lawrence was a Due Process case, and with that door open, its hard to see how the other ones will be kept shut. In my Green Bag article, I focused on Roper simply because it was more recent and used foreign law more extensively, but the scholarly and judicial push for internationalist interpretation is not confined to such cases.

Certainly some of the scholars who I criticized in for misquoting the Declaration, like Harold Koh, make far broader claims for the usefulness of foreign law in constitutional interpretation. Justice Ginsburg, in her speech at the ASIL meeting, suggested that foreign and international sources are relevant to all questions of constitutional interpretation, and even reminded the audience that she upheld Michigan’s affirmative action policies partially on basis of an “international understanding” that such policies are benevolent. Professor D’Amato, in comments to the earlier post, suggests that one reason to look to foreign law is that we are “physically and economically embedded in the world,” and thus should be legally embedded. That goes for beyond the Eighth Amendment.

A final word about confusing foreign and international law. They are of course different creatures, and to conflate them is sloppy practice. I intentionally referred to both in my article, because Roper invokes both the practices of particular nations and provisions of international conventions to which the U.S. had not consented. It seems that the invocation of the importance of the “opinion of mankind” in constitutional interpretation (the narrow subject of my article) argues just as much for using foreign as international law, especially if one believes international conventions particularly embody the “opinions of mankind.” Also, my sense of the internationalist arguments is that using both is equally valid.

Signing Off From India

by Roger Alford

I had the opportunity to speak to the Madras Bar Assocation today and while I was at the High Court I came upon this quote which I liked. It is from the first Indian Judge to ever sit on the Madras High Court, Sir Muthuswamy Aiyar (1878-1895):

“The Court of Justice is a sacred temple, the judges presiding over it are, though men, the humble instruments in the interests of truth and those who enter this holy edifice with unholy thought or desecrate it with unworthy actions, are traitors to their country. Those of you who may rise to the Bench should recollect that the power you may be called upon to exercise in the name of your sovereign is according to one of your ancestors a Power Divine. You should remember, if you desire to preferential eminence, that the law is both a science and an art and that success whether at the Bar or on the Bench, will depend upon the clearness with which you pass through complicated mass of facts in the midst of animated and often eloquent addresses, taking in as it were by intention each fact, referring to it its appropriate principle, and estimating its legal value within a given time. The study of law, as has been well said, is in a higher sense the study of philosophy of social life. The art you have to practice is a noble one.”

I have enjoyed blogging from India.

More on Foreign Influences

by Roger Alford

That is very helpful Peggy. I think you raise some interesting arguments regarding selective appeal to foreign opinion and provide a useful critique of Kontorovich.

This underscores for me yet again what is most interesting in the debate about originalist appeals to reliance on foreign opinions in constitutional adjudication. It is that the internationalists have been quite successful in using this one passing reference in the Declaration as a critical vehicle to frame the debate. We thus debate the motives of the draftsmen of that document and try to analogize from their motives what our motives should be in dealing with foreign opinion today.

My point in citing to Washington’s Farewell Address is that reliance on the Declaration’s language is no more legitimate (indeed arguably is less legitimate) than reliance on Washington’s Farewell Address. The Declaration was a 1776 appeal to foreigners to support the American revolutionary cause. Washington’s Farewell Address was a 1796 appeal to Americans for support in the American republican cause. It was a valedictory speech by Washington (and the original draftsman Hamilton) to his fellow Americans on how they should run the country now that he was exiting the stage. Washington’s message, as discussed at length in Joseph Ellis’ book, His Excellency, was that Americans should be very suspicious in foreign relations. Why? In large part because in his view their motives are not pure and their conduct is intended solely to further their own national interests, not the American cause. (I’m not suggesting that is my view of foreign relations today, but it most certainly was our Founding Father’s view.)

I should again emphasize that I do not think it is appropriate to rely on either the Declaration of Independence or Washington’s Farewell Address to help us decide whether we should rely on foreign opinion in constitutional interpretation. Had the Constitution provided some guidance on the question, that would be another matter. But unlike some modern constitutions, our Constitution gives us precious little guidance.

Thus, I am not suggesting that nationalists should use the Farewell Address as an originalist appeal to advance the cause of non-reliance on foreign opinion in constitutional adjudication. But they could use it to rebut the internationalist assertions of founders’ intent based on proof-texting from the Declaration of Independence.

Distinguishing the Death Penalty in the "Opinions of Mankind" Debate

by Peggy McGuinness

Prompted by Roger’s post (and also by some edits to a comment about Justice Blackmun’s “internationalism” that I have been working on), I took a look at Eugene Kontorovich’s essay in Green Bag about misplaced reliance by jurisprudential internationalists on the phrase “Opinions of Mankind.” (I am not sure the phrase has become “a staple of the internationalist argument” as Kontorovich contends, but it certainly has popped up here and then — even on this blog!) Kontorovich’s main beef appears to be that, whatever its rhetorical flourish, the phrase was not intended by the drafters of the Declaration of Independence as respect for other nations’ opinions in the sense of learning from others and emulating them, but rather was intended to reflect the founders’ desire to inform others of their reasoned declaration of separation and their hope to affect events in other nations.

Kontorovich does, however, acknowledge that the founders saw the practical effects of gaining respect and recognition from the other nations states in the international system at the time of the declaration — including trade relations, defense and commercial treaties and, perhaps most important, the availability of credit. But, he argues, it was a limited appeal to a small number of European states who could be helpful in those regards, not to the broader “international community” of the day. He cheekily suggests, for example, that we should therefore only listen to those states “views” on such issues as the death penalty when those states can lend us troop support for Iraq. (My cheeky response: Okay, so how about listening to England? They supported us AND are death penalty abolitionists.)

I do not know enough about the primary documents Kontorovich references to take issue with his argument. It seems right that, if indeed the founders intended to merely submit their rationales to the rest of the world, using the “opinions of mankind” to include the views of foreign states and NGOs about our own constitutional practices is misplaced. But if he is right about the selectivity the founders intended to attach to the “opinions of mankind,” he undermines the centrality of the argument with his conclusion that one of the dangers of judges looking to foreign law is that they will use it selectively. Indeed, he cites Scalia’s dissent in Roper: “All the Court has done today … is to look over the heads of the Crowd and pick out its friends.” Well, so long as those are true friends (trading partners, members of NATO, supporters of the war in Iraq) why not look to their practices?

Buth the core problem with the analysis is that Kontorovich overlooks what to me is the central point distinguishing Roper from uses of foreign or international law sources in other contexts (and yes, he conflates international law with foreign sources, as Tony D’Amato is correct to point out in his comments to Roger’s post): The reason Justice Kennedy spent a lot of time discussing foreign practices and international agreements in Roper is because it was an 8th Amendment case. Eighth Amendment cases have, at least since Thompson v. Oklahoma, looked at the “evolving standards of decency” of the civilized world in determining whether the punishment at issue is “cruel and” — importantly — “unusual.” So, when it tried to figure out whether executing juveniles is “unusual,” the Missouri Supreme Court looked to the practices of other states of the US, to other nations practices, and to the international instruments that, in effect, represent the collectivity of certain other nations’ practices. ** In his opinion, Kennedy did the same. It seems to me fair enough to oppose such analysis as means of standard-setting — as Scalia so forcefully did in his dissent, objecting, for example, to including any states that had abolished the death penalty in a statistical analysis of states that oppose the juvenile death penalty. But, ironically, the picking and choosing of “civilized” nations whose practices we wish to emulate on the death penalty seems to fit in nicely with Kontorovich’s vision of whose “opinions” would have mattered in the kind of instrumentalist calculation he ascribes to the founders.

I generally agree that appeals to what the founders thought about any of these issues are not, at the end of the day, terribly useful. The fact that we find ourselves discussing it at all– and much more often than I would like — is a mark of the success of those promoting the return to “originalism” over the past decade or so. Kontorovich’s essay just demonstrates how misleading the references can be whether they are deployed on behalf of conservative or liberal arguments.

**(I am setting aside the more difficult argument that, even though the US has not signed the ICCPR Optional Protocol abolishing the death penalty, the protocol may nonetheless bind the US as customary international law. To me, that’s a non-starter.)

"Insidious Wiles of Foreign Influence"

by Roger Alford

As noted here at the Volokh Conspiracy, Eugene Kontorovich has an excellent essay in Green Bag on misusing language in the Declaration of Independence to support reliance on foreign opinion in constitutional adjudication. Kontorovich argues that the function of the internationalist appeal to the Declaration is to “show that this approach has the most ancient and noble pedigree, that the Founding generation would be sympathetic to what is now considered an innovative and controversial practice.” However, he argues (quite convincingly) that the appeal to the Declaration is a “misquotation” by scholars who are “playing fast-and-loose with our founding documents.”

Which got me thinking, if one side of the debate is playing fast-and-loose with the Declaration of Independence, why not have the other side do the same with other founding documents, say George Washington’s Farewell Address of 1796. It would seem as relevant as the Declaration for the current debate on the role of foreign opinions in U.S. adjudication. The other team should invoke the admonition of George Washington that:

“…The nation which indulges towards another … a habitual fondness is in some degree a slave… A passionate attachment of one nation for another produces a variety of evils…. [I]it gives to ambitious, corrupted, or deluded citizens … facility to betray or sacrifice the interests of their own country … gilding, with the appearances of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation. As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils… Against the insidious wiles of foreign influence … the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government….”

If Thomas Jefferson is the team mascot for those who wish to “pay decent respect to the opinions of mankind,” then the other team should adopt George Washington as their mascot to warn against the “insidious wiles of foreign influence.”

Of course, in the current debate I would advocate playing fast-and-loose with neither the Declaration of Independence nor Washington’s Farewell Address.

It Takes a Progressive to Have a Realistic Foreign Policy

by Chris Borgen

In a response to my earlier post on Ikenberry’s views on progressive versus conservative foreign policy thinking, an anonymous commenter wrote:

I don’t buy either Ikenberry’s superficial presentation in this post, or the underlying superiority of the liberal order as defined as “commitment to multilateralism and rules-based relations,” which again is simplistic in the extreme. Clinton wanted to build “liberal” order? I’d like to see substantive evidence of this accomplishment. And to lump FDR, Truman and Kennedy into one basket, as to foreign policy in promoting democracy abroad, is ill conceived.

In terms of the construction of the liberal order during the Clinton Administration, consider the effects that the ICTY and the ICTR have had on international criminal law or that NAFTA and the WTO have had on trade law, investment protection, and economic dispute resolution. While it is true that some institutions didn’t achieve the goals of their founders (the Asia-Pacific Economic Conference, for example), the point is that there was a concerted effort at strategically building and/or using international institutions to respond to our foreign policy needs.

Clinton’s eight years in office saw more international institution building in America’s interest than probably the previous thirty years combined. That is partially a function of (a) the end of the Cold War, (b) the recognition of new threats, and (c) the increased possibility of greater international cooperation with Russia and China. But these factors would have come to nothing if it were not for American leadership in building or using international institutions and supporting treaty systems (like the Convention Against Torture).

Note that some of these institutions (the WTO and NAFTA in particular) were not supported by the far left or the far right but rather by moderate Democrats and Republicans with a progressive world view. I tend to think that the extremes of both parties, while making for great headlines and fun blog posts, have historically contributed very little to America’s actual foreign policy. We’ll see if the current administration changes that or if it moves towards the center. And, while Ikenberry’s post isn’t perfect, it has an insight as to fundamental differences between conservatives and progressives. And the progressives have tended to do the heavy lifting in maintaining international security and economic stability.

FDR, Truman, and Kennedy have far more in common with each other (and with George H.W. Bush, for that matter) than with George W. Bush. FDR and Truman conceived of and/or built the UN, GATT, NATO, the ICJ, the World Bank and the IMF. Kennedy extended GATT and deftly applied the UN and the OAS in crises in Cuba and elsewhere in the Caribbean and the world. These Presidents were not identical in ideology or execution but they are part of a continuum.

What have the conservatives got to show? To turn around the query of the anonymous commenter: I would like to see some substantive evidence of their accomplishments. Not a “democratic wave” (the critique of Ikenberry and others) and not a new world order or even a stabilized old world order. War, yes, I’ll give them that. But getting to war is easy; securing peace is hard.

What’s Wrong With This Syllogism?

by Roger Alford

If (1) Justice Breyer thinks reference to foreign law is appropriate to understand structural guarantees; and (2) Congress is constitutionally authorized to regulate the jurisdiction of federal courts; then (3) Justice Breyer should rely on foreign law to shed light on this structural power.

If this syllogism is correct, then I suppose that if (1) a foreign constitution grants the legislature the absolute right to remove any matter from judicial review; and (2) Congress resolves to preclude federal court reliance on foreign law; then (3) Justice Breyer should rely on this foreign law to lend support for Congress’ authority to preclude judicial reliance on foreign law.

What am I missing? Just curious.

Ricardo in Bangalore

by Roger Alford

I teach international trade and my students have often struggled to understand Ricardo’s theory of comparative advantage. They should visit Bangalore.

The modern era of free trade is premised on Ricardo’s theory, which presumes that each country should specialize in the production of the goods and services in which it has a comparative advantage and then trade with other countries for goods and services in which they have a special advantage. This is great for consumers worldwide, but creates huge risks and opportunities of worker displacement.

While exploring the streets of Bangalore this weekend, I was overwhelmed at the application of Ricardo’s theory in practice. My host, a bright enthusiastic young pharmaceutical salesman, spent the day explaining life as a young professional in Bangalore. Several completely anecdotal and unrefined (if you want refined see here and here) thoughts on life in Bangalore:

First, it is hard to describe the construction and development that is occurring in Bangalore. The amount of construction resembles the phenomenal construction era of past decades in the boom towns of Dallas, Atlanta and Houston. This is on top of numerous industrial parks already built. Clearly thousands of foreign corporations have wagered that there is a long-term comparative advantage in placing jobs in Bangalore.

Second, the salary of an Indian IT professional is dramatically lower than an American counterpart. My host guessed that his friend who is a top young gun working at Microsoft in Bangalore is making about $45,000. Most make less, much less. But the cost of living is dramatically lower as well. The Indian rupee trades at about 45 to $1 but in my view the buying power feels like approximately 10 to 1. That is, a typical casual sit down lunch will set you back $1.50, compared with $15 in Los Angeles. Any American who has traveled to London knows the sticker shock of nearly every product costing twice as much. Imagine the sticker shock of most things costing 10 times less. Now imagine what this price differential does to concentrate the mind of a cost-cutting foreign corporation.

Third, one can scarcely describe the number of upwardly mobile Indians in Bangalore. Sunday night at the brand new Forum Mall in Bangalore is like December 24th in an American mall. Wall-to-wall shoppers in the thousands. Since the 1990s, there is a new economy clustering effect taking place, and these professionals are at the high value chain in the Indian IT industry. They are yuppies who yearn for rupees to burn. It appeared that these rupee yuppies were thirsting for all things Western (especially American). My host could not yet afford to travel abroad, but if he could his first stop would be New York. At the multiplex cinema at the Forum Mall every showing of every movie was sold out (including disappointing ones like this). Every American fast food outlet were packed to overflowing (KFC, Pizza Hut, Subway, and McDonalds (featuring the McVeggie)). In some cases it appeared that it did not matter if the product was American as long as it looked American. For example, at the Tommy Hilfiger store – a quintessential American store with an Americana theme – the young sales clerk was curious to know if the Tommy Hilfiger brand was sold in the United States. Moreso than Chennai, the young women in Bangalore are increasingly trading their saris for Wranglers. The result is that American goods and services are being sold to upwardly mobile Indians in overwhelming numbers. Their mobility is our opportunity.

But the result is also that many fungible American service jobs are quite clearly at risk to the competition from these young professionals. Their mobility is our risk. A day in Bangalore will underscore for any American service sector employee the danger of being replaceable. Woe to the fungible. As Tom Friedman put it, we no longer should be telling our kids to finish their dinner because there are people in India who are starving. We should be telling our kids to finish their homework because there are people in India who are starving for our jobs.

Well, actually we should be telling our children both, as my visits to the bonded laborers in the remote villages of Tamil Nadu and to the gilded laborers of Bangalore confirmed.

Ikenberry on Democracy and International Order

by Chris Borgen

John Ikenberry has a great post over at America Abroad entitled “Democratic Enlargement versus Liberal Order.” I think it neatly contrasts the world views of conservatives and liberal internationalists (and by “liberal” I don’t mean “left wing”). I’ll write on this more in the coming days. For now, here’s a few excerpts from Ikenberry’s post (but the whole post is worth reading):

…Bush’s vision is distorted and incomplete. The big difference between Bush
and the great liberal internationalist presidents is that Bush wants to promote
democracy and freedom and Wilson, FDR, Truman, Kennedy, and Clinton wanted to build liberal order. More precisely, they believed that you can’t really have
one without the other – to spread democracy you must also deepen the liberal
democratic order.

The Bush – and neo-conservative – view seems to be that you can do democratic engagement without building liberal order. One reason seems to be that, in their view, the character of regimes matters more than the institutions, treaties, and other aspects of international community that sit atop and bind together democratic states. If all the states of the world are democratic, you don’t need a lot of international rules and institutions – you will get peace without a lot of international superstructure…

…Wilson’s view and that of the more “realist” liberal internationalist presidents – FDR, Truman, Kennedy, and Clinton – has been that democratic enlargement and liberal order must go together. One reason is that democracies share values and aspirations that can only be fully realized through a thriving liberal international order. Democratic “man” is a free individual and a citizen with civic sensibilities and responsibilities that cut across national borders. Secondly, and perhaps more importantly, liberal order is needed so as to generate the collective resources and cooperative efforts to sustain the long-term democratic enlargement agenda. Indeed, this is increasingly true: The “easy” cases of democratization have been achieved. After each wave of democratic enlargement, the remaining laggard states are increasingly tough cases – requiring the democratic world to concert their efforts. Democratic enlargement requires a “democratic village.” Thirdly, the absence of an American commitment to liberal order – i.e. a commitment to multilateralism and rules-based relations – imposes too high a cost on the U.S. in terms of encouraging balancing, resistance, and free riding by other democracies — and it undermines the legitimacy of the broader commitments to international and domestic liberalism.

U.S. Gulf Allies Cited for Human Trafficking

by Roger Alford

On June 3, the United States issued its 2005 Trafficking in Persons Report and demoted from Tier 2 to Tier 3 some of our closest allies in the Gulf, including Saudi Arabia, Kuwait, Qatar, and United Arab Emirates. This opens these Gulf allies to U.S. sanctions if they do not improve their record in human trafficking.

For a useful discussion of the TIP report and its impact on Saudi-U.S. relations, see here. For excerpts from the report on U.S. efforts to combat human trafficking, see here. For excerpts from the report addressing Saudi Arabia, see here. On Saudi Arabia, the report concludes:

“The Government of Saudi Arabia does not comply with the minimum standards for the elimination of trafficking and is not making significant efforts to do so. Saudi Arabia has moved from Tier 2 to Tier 3 because of its lack of progress in anti-trafficking efforts, particularly its failure to protect victims and prosecute those guilty of involuntary servitude. . . . The government should consider adopting comprehensive anti-trafficking legislation that would punish traffickers, provide for the protection of victims, and facilitate prevention programs.”

I suppose this report is not exactly what is to be expected for those who view the U.S. government as in “cahoots with the oil and armaments industries” and “murderously indifferent to the value of non-American life.

What Is Wrong With The U.S.?

by Roger Alford

While on the train to Bangalore this morning I read an especially bad op-ed piece in the Hindu on what is wrong with the United States. Money quote:

“After the invasion of Iraq, the collective punishment of Fallujah, the abuses of Guantanamo, Abu Ghraib and Bagram, the reckless insistence on the right to pollute the planet and the systematic asset-stripping of the developing world, people in other countries have every reason to look at the USA with fear and anger. Add on to that the current pre-eminence in Washington of right-wing Christian fundamentalists in cahoots with the oil and armaments industries, and no wonder the world is worried.”

So let’s see, the problem with the United States is that it is ruled by a Christian fundamentalist elite in partnership with a military-industrial complex that is regularly committing acts of torture, degrading the environment and systematically exploiting the Third World. Glad he cleared that up for the readers of India’s national paper. I guess he forgot to mention that we imprison our political dissidents in gulags too.

Why Withholding UN Dues Makes No Sense

by Peggy McGuinness

Suzanne Nossel over at Democracy Arsenal has posted this excellent analysis about why the US House of Representatives’ current move (voted out of the International Relations Committee Wednesday) to condition or withhold US dues to the UN will be counter-productive. It includes a lot of detail about the US dues crisis of the late 1990s and how then-US Ambassador to the UN Richard Holbrooke used what we lawyers like to call “creative problem solving” to reach compromise with the Hill and the United Nations. Kofi Annan has put a pretty full panoply of reforms on the table for this September. And the bill, as Nossel notes, repeats many of the already sound reform proposals being discussed in New York. Her take:

The problem with the newly approved legislation is that it requires withholding of 50% of U.S. assessed dues to the UN unless the requested reforms are implemented. But the breadth and depth of the reforms are such that its almost impossible to imagine that all will be quickly or completely agreed. The result is that after a four year truce with the UN over finances, the U.S. will once again start accumulating substantial new arrears.

This is a bad mistake, and one that the Bush Administration rightly insists must be corrected. The U.S. can be effective in negotiating reform without holding the UN to ransom. John Bolton proved that when he got the organization to rescind its Zionism is Racism resolution in 1991. He prides himself on having accomplished this through aggressive diplomacy, not by withholding U.S. dues. The implementation of the 2000
Brahimi recommendations involving far-reaching reforms to UN peacekeeping was likewise accomplished without the threat of withholding U.S. dues.

Let’s hope the administration prevails on this one. And for those keeping count, annual dues of the US to the general budget of the UN are in the neighborhood of $450 million (compare that with, say, the almost $300 billion the US has spent so far in Iraq).

Speech That Outrages Modesty or Ridicules Immodesty

by Roger Alford

I have long found it curious that those who favor constitutional comparativism often fail to appreciate the particular cultural distinctives that imbue different legal systems. It is rare that comparative scholars will outline those differences, many of whom wish to deny that they exist or diminish their importance.

It was therefore of great interest to me today when I came across a fascinating line of Indian Supreme Court cases that impose criminal sanctions on sexually suggestive speech. Article 509 of the Indian Penal Code provides that “whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.” Last year the Indian Supreme Court reaffirmed the test for outraging the modesty of a woman to include “any act done to or in the presence of a woman” that is “clearly suggestive of sex according to the common notions of mankind.” Mahale v. State, 2004 AIR (SC) 1677. This test was used by the Bombay High Court to acquit a defendant who made insulting remarks to a woman, but only because those remarks were not sexually suggestive enough and therefore did not “violate the concept of feminity.” Kshirsagar v. State, 1991 CLJ 410. There is no discussion in any of these cases regarding a constitutional right to free speech, which is not surprising given that that right in Article XIX of the Constitution expressly permits the State to impose “reasonable restrictions … in the interests of … public order, decency or morality…”

Coincidentally, today I also happened upon a book review of Judges in Contemporary Democracy edited by Justice Stephen Breyer and Robert Badinter, former President of the Constitutional Council of France. See 80 NYU Law Review 694 (2005). The book review includes an excerpt of a dialogue between Ronald Dworkin and Minister Badinter addressing the question of when a French judge may restrict political advertisements that ridicule a political opponent:

DWORKIN: …[Y]ou cannot accuse your opponent of a crime. But can you show a picture of him picking his nose?

BADINTER: No, no, that would not be appropriate.

DWORKIN: What stops that?

BADINTER: That would be the judge.

DWORKIN: Now, under what regulation?

BADINTER: The general statute on defamation and ridicule.

DWORKIN: But this is not defamation. There is no lie; there is no falsehood. You are simply using your time to show an ugly picture of your opponent. . . . Is there anything in a judge’s power that can stop this kind of ad?

The dialogue concludes with Dworkin and Badinter conceding that ultimately cultural differences anchor the legal differences. Badinter was of the view that the American approach to political advertising was “horrible” and “shocking.” Many Americans may well agree, but would find the French system of prior restraints on political speech even more offensive.

Query what utility these two experiences from India and France offer the United States in defining its free speech protections. Speech that outrages the modesty of a woman or ridicules the immodesty of a politician should be subject to prior restraint or even criminal sanction? I frankly can find very little utility in these comparative experiences. They simply underscore the cultural divide. I’m not suggesting they are necessarily wrong for India or France. But they would be lost in translation if they were borrowed for comparative reference.

Which raises the larger question of whether it is better to try to find a common consensus on what is acceptable speech or is it better to simply admit that sometimes on some things different cultures are so foreign that “common notions of mankind” do not exist and should not be pursued?

Darfur Update: ICC Opens Investigation, NATO to Support African Union Troops

by Peggy McGuinness

I am back on the blog after some out-of-town travel and have been reading with great interest Roger Alford’s dispatches from India. Welcome, Roger! I’ve also been catching up with developments this past week. On June 6, the ICC Chief Prosecutor announced that the ICC would officially open an investigation into the situation in Darfur. This comes after the Security Council referral of the Darfur situation to the ICC in March. The ICC has, apparently, based its decision to investigate on the report issued by the International Commission of Inquiry on Darfur earlier this year. That report, you may recall, concluded that the ongoing atrocities there did not constitute genocide, but did meet the definition of “crimes against humanity.”

Earlier today, NATO agreed to lend logistical support (mostly in the form of airlifting troops from West Africa to Sudan) to the African Union, which is planning to double its troop presence in Darfur in the next month. This is no substitute for a NATO force, but is a small step in the right direction.

We have blogged a great deal about Darfur over the past few months, including here, here, and here. I have advocated for stronger humanitarian intervention — including a NATO-led force — and have been skeptical of the value of pressing for prosecutions prior to resolving the ongoing conflict and stopping ongoing crimes. I’d like to be wrong about that.

Along with the Uganda case, the Darfur investigation (one, interestingly, not opposed by the United States after it allowed the UN referral) will be an important test of the viability and potential future value of the ICC. And the NATO agreement will be a test of the seriousness with which the outside world takes the commitment to stop crimes against humanity. As we often say at Opinio Juris, stay tuned.

If The World is Flat…

by Roger Alford

New York Times columnist Thomas Friedman, in his new book The World is Flat, argues that the global playing field is being leveled and that as a result the world is now flat. He argues that, “it is now possible for more people than ever to collaborate and compete in real time with more other people on a more equal footing that at any previous time in the history of the world…. [W]hat [this] flattening of the world means is that we are now connecting all the knowledge centers on the planet together into a single global network which … could usher in an amazing era of prosperity and innovation.” (p. 8).

Among the forces that Friedman argues is flattening the world is outsourcing. He discusses at length the impact of outsourcing manufacturing and service jobs to India and China. Friedman argues that “no matter what your profession – doctor, lawyer, architect, accountant – if you are an American you better be good at the touchy-feeling stuff, because anything that can be digitized can be outsourced to either the smartest or the cheapest producer.” (p.14).

During my time here in India I have thought quite a bit about Friedman’s argument that the world is now flat and that American legal service providers risk the outsourcing of their work to smart and cheap labor abroad. But far from being outsourced, it strikes me that there is a remarkable opportunity for American lawyers to engage in “reverse outsourcing.” Many jobs that could be done locally in foreign countries could also be outsourced to American lawyers. Put simply, for matters such as international human rights litigation, American lawyers are among the smartest and cheapest producers of this commodity in the world. Among the smartest because we have a sophisticated bar that has been at the vanguard of developing human rights litigation. Among the cheapest because this bar includes the (i) pro bono practices of major American law firms, (ii) the contingent fee practices of the plaintiffs’ bar, (iii) the legal work of human rights NGOs and law school clinics, and (iv) the invaluable input of professional academics. All of these service providers do their human rights work for virtually nothing. They are very smart and very cheap.

Thus far, most of their energies have focused on providing legal services to the American legal market. But they could be more effectively tapped by interested groups in foreign markets. In short, now that the world is flat, foreign consumers of this commodity could outsource a part of their human rights work to smart and cheap legal labor in the United States. To give you a concrete example, if a human rights group in India were interested in outsourcing legal services to the United States, they could readily do so. This includes not only questions of international law, but also the analysis of Indian law, which is as readily available to clinical law students in the United States as it is to Indian lawyers in Chennai. All major Indian cases are reproduced in one reporter series, the All India Reporter, available in most libraries and digitized on one affordable website, http://www.indlaw.com/. If they were interested in securing answers, a wealth of interested human rights groups would be happily willing to assist them. To the extent human rights law can be digitized, much of it can be outsourced to a smart and cheap labor pool in the United States. Friedman may worry that his tax returns will one day be prepared for virtually nothing in Bangalore. I am fascinated by the prospect that Indian sex trafficking laws could be researched and briefed for virtually nothing by attorneys in Baltimore.

Another force that Friedman discusses that is flattening the world is open sourcing. (p.81) He describes open sourcing as self-organizing collaborative communities in which either reputation or knowledge-enhancement is the reward. It is peer-reviewed and relies upon only trusted sources. Each contributor in open sourcing usually will offer his own minor contribution — a “patch” — that fills a particular void or addresses a particular deficiency in the system. Linux and Apache software are preeminent examples of open sourcing. Open sourcing has expanded to other communities, such as a group of scholars who have created a free, community-edited, online encyclopedia at http://www.wikipedia.com/. (p.95).

It strikes me that open sourcing is a force that the international legal community could utilize with much greater gusto. For example, if one were to view the human rights bar as a self-organizing collaborative community, one could develop answers to complex problems through open sourcing. If an Indian human rights lawyer is writing a legal brief on what constitutes slavery under Indian law and he has reason to believe that reference to Pakistani, Sri Lankan, English, or Canadian law might be useful to the brief, he should be able to request a legal “patch” and easily secure the answer. This patch provider does not necessarily have pre-knowledge of the answer, but he may be trusted to discover and deliver it. Perhaps specialized legal blogs are the beginnings of such open sourcing, although they rarely are used to provide legal “patches” in the manner I have described.

Outsourcing and open sourcing are forces that could change the way certain types of legal services are provided. Of course, these approaches are wholly inappropriate in many contexts. But if I am a struggling lawyer in India who would like to help a human rights victim who has a question that is morally challenging but pecuniarily insignificant, one would think that he should be able to outsource or open source the issue. And if the legal world is flat, he should be able to use these forces to secure an answer.

Reconsidering the Reconsideration of the ICJ

by Chris Borgen

There have been numerous posts on Opinio Juris concerning how it may be time to reconsider the role of the ICJ. One recent comment to the blog and another “out in the real world” provide a good counterpoint to this whole discussion.

Dr. Cesare Romano of NYU has posted an insightful comment to an earlier post on whether the ICJ needs reform. Given the interest in statistical analyses of the behavior of international tribunals, Romano does a nice bit in showing that, numerically speaking, the ICJ’s caseload is actually where you should expect it to be, given that its only potential clients are States suing each other. Perhaps then, we should be a little less concerned with how many cases the ICJ has than what it actually does with them.

Let me toss in another perspective I heard recently at a conference. One international lawyer who has a very active practice before the ICJ has quipped that as a court the ICJ is not very successful but as a legislature it is quite good. He argues that there are other international tribunals, such as the WTO Dispute Resolution Mechanism, that do much better jobs at resolving contentious cases. As has been observed here, the ICJ’s cases tend to take a long time to get resolved and many of them are somewhat “cold” even when they get to the ICJ. So, as a means of resolving a heated dispute, the ICJ isn’t especially strong.

But, according to this argument, the ICJ is better understood as a de facto legislature, anyway. The international system, unlike national systems, does not have an agreed-upon law-making body. There is no World Congress with legislative authority (the General Assembly passes non-binding resolutions and although the Security Council passes binding resolutions, the argument that it is a “legislature” raises a lot of hackles).

The ICJ, however, decides cases that often change the shape of international law (on everything from status of international organizations to how treaty reservations work, from how to delimit maritime boundaries to the rules for assisting insurgencies). The cases may be relatively few but their result is like legislation: reframing the rules in a given area of law. Technically, of course, a ruling of the ICJ is only binding between the parties but in fact decisions are not treated this way. And add to this the capacity of the ICJ to issue advisory opinions on broader legal questions and the result begins to look more legislative.

In considering this argument, one DC lawyer later noted that legislatures tend to do their jobs better when dealing with technocratic policy issues that some legslators have spent time mastering and yet hasn’t become overly politicized. Then law and policy, rather than politics, tends to be hashed out. But the high voltage political issues short circuit Congress and instead of discussion and deliberation you get rhetoric and recrimination.

Now consider the ICJ and technocratic issues (maritime boundaries, the rules affecting international organizations, border disputes) and its record is one of the careful elucidation and extension of international law in a way that is generally accepted by the States, as evidenced by their own subsequent practice. But when you ramp up the political quotient (the Israeli/Palestinian Barrier Case, for example) the result makes the ICJ seem less like a hallowed institution and more like a talking-shop whose results are easily dismissed as overly politicized, unrealistic, and irrelevant.

So is the ICJ actually the world’s legislature? Well, no, no one is actually saying that. But its evolving role may be better understood as more akin to a de facto law-making body than as a dispute resolution mechanism.

Spurred by these two (not necessarily consistent) perspectives, I think we should reconsider how we reconsider the ICJ.

Freed from Bonded Labor

by Roger Alford

According to the ILO, today in the world there are 20 million people (i.e., the population of Texas) who are currently in bonded labor. Bonded labor is a variation of forced labor that is little discussed and only vaguely understood by most Westerners. In its typical manifestation, bonded labor occurs when credit is advanced to an impoverished person and then he and his family work until they have paid off the debt. But with bonded labor, they almost never do. The employer pays far below minimum wages and issues new advances for “expenses” and “interest.” Underpaid and overcredited, these employees are locked into years of involuntary servitude. Bonded labor is a violation of international law and India’s Bonded Labour System (Abolition) Act of 1976. Under Indian law, the government will criminally prosecute the employers, cancel any debt of a bonded laborer, and compensate each bonded laborer 20,000 rupees ($460).

Today I joined caseworkers from IJM to visit dozens of former bonded laborers now living in small villages in the states of Tamil Nadu and Andhra Pradesh. These lower caste members (formerly called untouchables) all had served years as bonded laborers for rice mill owners. One family we met today had accepted an advance ten years ago from a rice mill owner to pay the dowry for her wedding. The cost of the advance was 6,000 rupees ($137). Her family of four then became bonded laborers and worked in the rice paddies 12 hours a day, six days a week for the next ten years to pay off the debt. They never did. At the time they were released last year, the family “debt” had quadrupled to 26,000 rupees ($600).

In another village, a small thatched-roof shanty in a remote part of Tamil Nadu, we met with over 50 children in a one-room school house. Until last year these children were “generational bonded laborers,” having spent their entire lives with families in bonded labor. With the government’s compensation of $460, and the supervision of IJM caseworkers, these former bonded laborers are buying tiny plots of land, building small permanent houses (4’ x 6’ one-room brick houses for a family of four), purchasing cows for revenue, insuring their investment ($3 annual premium per $200 cow), handling money for the first time, opening a passbook bank account, and taking steps toward educating their children. When we met with them they thrilled at small pieces of chocolate, sang songs to welcome us, and were transfixed at the site of their blond-haired, blue-eyed guests. When I asked how many of them liked going to school, every single child raised their hand. They particularly enjoyed the site of their own images on digital camera. These families now look forward to a less bleak future in which the revenue from cows’ milk will provide them up to $1,000 a year, just enough to live on.

Obviously there are problems with implementation of the Indian bonded labor compensation scheme, as Human Rights Watch has noted. But there also is a problem with the way we traditionally envision the work of international lawyers in securing human rights. Typically one does not associate human rights lawyers with facilitating the enforcement of domestic statutory rights for guaranteed government compensation in far-flung countries. But that’s exactly what IJM caseworkers are doing. And more of us should be and could be doing more of it. Which is the topic of tomorrow’s post.

Reply to Borgen

by Roger Alford

I think you will get conflicting views on your question. My hunch is that as a general rule the lawyers litigating human rights cases in Indian courts are motivated by international human rights norms but typically will argue domestic law to the judges, with healthy reference to persuasive authority from English courts. Unfortunately, it is extremely difficult to do legal research in India and therefore a firm conclusion on your question of judicial receptivity to such arguments is not possible. Certainly one can find repeated instances in which the Supreme Court of India relies on decisions of the House of Lords, as well as instances in which they are invited to apply international law standards (such as in defining what constitutes rape, see Sakshi v. Union of India, 2004 Indlaw SC 466 discussed here) but refrains from doing so. As for international law arguments, while I am not aware that it has adopted a doctrine akin to Charming Betsy, the Supreme Court of India in the case of Darusz v. Union of India, AIR 1990 SC 605, discussed here, has indicated that the fundamental rights in the 1949 Indian Constitution are in consonance with the rights embodied in the 1948 Universal Declaration of Human Rights and should be so interpreted. The timing of the two instruments is of course highly relevant to this conclusion.

Alford’s "Retail Human Rights Litigation"

by Chris Borgen

Welcome Roger and thanks for starting us off this week with a great topic.

IJM’s strategy is very interesting. While I don’t know of other groups applying litigation strategy exactly like IJM, I do note that U.S. civil rights groups have looked into ways in which human rights norms can affect U.S. litigation, even if you are not suing under a treaty. I am not referring to simply trying to get courts to cite to treaties as persuasive evidence (a topic we have hashed over repeatedly at Opinio Juris) but rather, suing under U.S. law and then making an argument that, under the Charming Betsy doctrine of statutory interpretation, the U.S. statute must be read, if possible, in conjunction with related treaties. The intended result is to have the statute interpreted in a manner as consistently as possible with international human rights norms and thereby allowing those norms to inform domestic adjudication. That’s the closest analogy I can think of to what IJM seems to be doing.

In either case, there needs to be an openness of both the litigators and the judiciary to referring to international norms even if the suit is technically not arising under a specific treaty or a statute like the Alien Tort Statute that opens the door to customary international law.

So a question I have for Roger is this: in the IJM model, how central is international law to the argument being made by the attorneys to the judges? Are the international attorneys motivated by international human rights norms, but only arguing domestic law to the judges and, as such, the judges aren’t cognizant of international law in writing their judgments? Or is it that the judges are learning about international legal standards and consciously adopting these standards in their reasoning? Both scenarios are interesting: the first focuses on the socialization of only the bar while the second has both that bar and the bench becoming more literate in international law.

Truth in advertising disclaimer: I am finishing an article on a related topic—whether transnational litigation and arbitration (that is, between a State and a subnational actor such as an individual or a corporation, and including poroceedings as varied as investor-State arbitration to an individual suing a country before the European Court of Human Rights) causes an influx of international norms into the domestic legal systems of transitional societies. Of particular interest is not whether such litigation or arbitration directly causes a change in the domestic law, but whether the process of such dispute resolution changes the habits of the bar and the bench such that they refer to and accept international norms to a greater extent than previously.

In these types of proceedings we see domestic lawyers and judges each becoming involved in a variety of ways (for example: domestic lawyers may argue claims before these tribunals or at times sit as arbitrators; domestic judges may sit as arbitrators or may be involved in proceedings to enforce an award, etc.). The question of who is getting socialized (judges and/or lawyers) can affect, in certain instances, whether the norms being described and applied in the transnational context become accepted principles in the domestic context.

So, in what you have seen, are the judges consciously picking up cues from international law or is it primarily domestic lawyers who are trying new tactics couched in domestic law, though inspired by international law? Do you think it is even necesary for the judges to be cognizant of the international legal argument, as long as the result is the desired outcome?

Dispatch From India

by Roger Alford

Thank you Julian, Chris, and Peggy for the opportunity to guest blog this week with Opinio Juris. I am writing from Chennai (Madras) India, a south Indian city teeming with 4.2 million residents, a quarter of whom are slum dwellers. I spent most of my first day here touring the city by car, overwhelmed by the masses of people who fill every nook and cranny in the fourth largest city in India. Safely cocooned in my air-conditioned, valet-driven van, my first impression is that of floating in a life boat on a sea of poverty. The reality is more complicated. Chennai is clearly on the move and making significant strides. The standard of living is increasing, mobile phones appear ubiquitous, new restaurants and hotels are thriving, and 86% of households own a television.

I am here at the invitation of the International Justice Mission, a Washington D.C.-based human rights organization that is at the cutting edge of a new trend in human rights litigation. While international lawyers typically have focused their energies on litigation before international human rights tribunals or United States courts under the Alien Tort Statute, IJM has taken a completely different approach. It stations a small cadre of American lawyers to train and supervise local lawyers to enforce local laws that reflect international human rights norms. The head of the IJM office here in Chennai calls it the second wave of human rights litigation: taking international norms that have been adopted throughout the world and training lawyers to enforce them at the retail level.

In India, IJM addresses human rights problems at every level, from discovering the abuses (particularly child labor, sex trafficking, bonded servitude, and child prostitution), documenting the crimes, tipping off the police, securing release of the captives, facilitating the (private and public) criminal prosecution of the wrongdoers, and providing aftercare to the victims. They are crime scene investigators, lawyers, and social workers all rolled into one.

The approach is clearly bearing fruit. Over dinner last night I heard inspiring stories from two effervescent young Indian lawyers who work in IJM’s Bombay (Mumbai) office. For decades child prostitution has been rampant throughout Bombay. Five years ago, IJM decided to target the trafficking of young prostitutes, some of whom were only five years old when they were taken from their rural villages and placed on the streets of Bombay. It documented the abuses, tipped off the police, and facilitated the criminal prosecution of the brothel keepers. Now child prostitution is in dramatic decline in Bombay, as other brothel keepers have heard about this NGO called IJM that is agitating for change. The young lawyers said that the market for young prostitutes continues unabated, but the work of IJM has dramatically curtailed the supply.

I find this new wave of “retail” human rights litigation utterly fascinating, bringing to reality on the ground the lofty aspirations of international conventions. And for the inspiring American advocates who are stationed here with IJM, I see the beginnings of a new human rights movement of “lawyers without borders,” offering the skills they learned at home to remote outposts throughout the world.

I am not aware of any other organization that has adopted this model of human rights litigation. If you are aware of another one, I would be curious to hear about it. Comments are open.

One Last Word on Amnesty International

by Julian Ku

OK, I’m not quite signing off yet. I just wanted to point readers to two more sharp (and in my mind, devastating) attacks on Amnesty International’s attempt to equate Guantanamo with “gulags”. (A comparison that they have not backed away from, as Jon Adler notes here). One is by Kenneth Anderson in the Weekly Standard, and the other is by David Bosco in The New Republic. Both pieces make the points I have been trying to make, more eloquently and powerfully than I can.

Opinio Juris Welcomes Professor Roger Alford

by Julian Ku

Opinio Juris is thrilled to welcome Professor Roger Alford, of Pepperdine University School of Law, as a guest-blogger, filling in (mostly) for me while I travel and catch up on a few other projects. Roger will be posting from India, where he is currently travelling for the next two weeks. Roger is a well-known scholar of foreign relations and private international law (check out his lengthy publication list here) including a recent article on theories of comparative constitutionalism which Ken Anderson discussed here. Roger is also the founder of International ADR.com, a comprehensive online international arbitration portal that provides information on relevant treaties, arbitration laws, arbitration institutions and rules, and arbitration awards and decisions.

Welcome to Opinio Juris. Blog away!

The Pentagon’s Report on China: Congressional Oversight of Foreign Policy in Action

by Julian Ku

The WSJ($) reports today on a draft Pentagon report on China’s military power that suggests the Pentagon is re-focusing its energy on China as a possible military rival to the U.S. The report supposedly has been the subject of inter-agency struggles between the Pentagon, which wants to discuss possible global conflict scenarios, and the State Department, which doesn’t want to offend or annoy China.

There is a lot going on in this report, which is required annually by Congress, as part of its condition for defense appropriations. As the article notes, the Navy and Air Force have a vested interest in building up China as a threat, given they have very little to do in Iraq these days. The State Department, which is trying to get China to control North Korea, is not happy. I imagine the Treasury Dept, U.S. Trade Rep., and Commerce Dept’s, aren’t thrilled with China-as-military-enemy scenario either.

But putting aside the substance of this year’s report, what is interesting from a broad legal perspective is that the report is required at all, and that it is required to be made public. You can find last year’s report here. It should remind us that Congress is not quite the patsy on foreign policy that it is often assumed to be. By requiring this report every year, Congress forces all of the relevant agencies to have a discussion and debate at an inter-agency level, and then gets to review the product of those discussions in public as well. In other words, Congress gets to oversee, and influence at the early stages, the formation of the U.S. government’s long-term foreign policy strategy.

The President may be, according to the Supreme Court, the “sole organ” of U.S. foreign policy. But that “organ” gets pushed around — a lot — by a Congress when it wields the power of the purse. And this democratic, relatively transparent approach to developing foreign policy, despite its messiness, is almost certainly a good thing.

Law of the Sea Treaty Ratified! (By the Interior Department)

by Julian Ku

I noted a while back that the Bush Administration is treating the Law of the Sea as essentially ratified, even asking for money to fund the Law of the Sea Tribunal. Yesterday, more evidence of the Bushies’ love of the Law of the Sea Treaty has emerged, strangely enough, in the context of the ongoing Louisiana-Florida battle of underseas oil development in the Gulf of Mexico.

According to the St. Petersburg Times, the Interior Dept. has promised to redraw Louisiana’s territorial waters to stretch farther toward Florida. The basis for the new lines is none other than the Law of the Sea Treaty, which, as the paper points out, the U.S. has thus far refused to ratify.

Actually, this is not as crazy as the Times believes. The U.S. has signed the treaty after all, and it has also recognized many of its provisions as customary international law. U.S. courts apply customary international law all the time in resolving territorial disputes between states, so it seems fine if an executive agency (which otherwise has that authority) wants to use the same law for that same purpose.

Indeed, the executive agency has arguably more freedom to do so than a court, because the agency’s decision to use the Law of the Sea is essentially a policy decision that can be overturned by Congress or a future executive. But a court would codify the Law of the Sea treaty in domestic law, which is quite a different situation.

John Keegan: Bad (International) Law and Just Wars

by Julian Ku

Legendary British military historian John Keegan weighs in with an insightful criticism of the effect of modern international law (and especially institutions like the International Criminal Court) on the ability of a military to operate effectively. Reviewing the upcoming prosecutions of UK soldiers in UK courts, and perhaps in the ICC, he writes:

The United States has been much denounced for failing to fall into line with other states, particularly in Europe. Recent events suggest, however, that the Americans may have been wise to withhold their consent. The British are discovering why.
….

The mobilisation of legal procedures within a law-abiding army, such as the British, against its own people, has the most undesirable effects. No one wants law-breakers to go unpunished. The reality is, however, that once military police and military lawyers start investigations, the normal understandings and assurances of mutual confidences on which normal army life subsists go out of the window.

Military lawyers, in the nature of their job, cast their net as wide as possible. Comrade is questioned against comrade. Suspicion is aroused. The law of self-protection sets in. Men who would never in everyday life impugn a brother in arms are driven to hint at wrongdoing. Worse, those in positions of command who would normally object to any accusations being levelled against their subordinates become affected by the desire to distance themselves from
criminal proceedings.

I must admit I’m not sure what I think about this particular criticism of the ICC-led movement to merge international human rights law and the law of war. And Keegan is obviously a pro-military institution kind of guy. But he also may be one of the greatest living military historian (writing in English) and has forgotten more about how military institutions operate than most of us will ever know. See a list of his books here. So his views are worth thinking about.

WTO Watch: Epic Battle Looms

by Julian Ku

This piece does an decent job of trying to unpack the WTO’s somewhat obscure dispute resolution system, which is now about to tackle the epic multibillion-dollar struggle between the U.S./Boeing and the EU/Airbus over aircraft subsidies.

The WTO dispute resolution system is a hybrid between binding arbitration and a permanent stand alone court like the ICJ. The panelists are, as the article suggests, picked for particular cases, although there is a permanent membership for the Appellate Body. Still, does anyone know who they are? Here’s as partial list. So there is little glamour, although lots of power (at least compared to other international tribunals).

One question to keep in mind as this process moves forward. Who will be the panelists for the initial dispute resolution panel? Given that both the U.S. and E.U. have a decent record of compliance with such decisions, and given the murkiness of trade law on these questions, the identity of the panelists could be crucial, if not decisive. Yet I doubt there will be no press coverage of the panelists, or of their deliberations, largely because the whole process moves into a far less public phase at this point. It is not obvious to me that the identities of the panelists are even known (except by the parties) prior to their decision. If someone can find the most recent list of panelists on the byzantine WTO website, please let me know.

The theory, I believe, is that none of this is relevant to outsiders — it is simply a matter between governments. But I’m not sure that is true anymore, given the stakes of this and other WTO cases that loom in the near future, for various important groups: e.g. sugar planters, aircraft workers, etc.

While Waiting for the Tally of the Dutch Vote…

by Chris Borgen

… on the EU Constitution, check out the discussion over at Transatlantic Assembly on the French vote and the state of the EU.

UPDATE

Le Monde reports a 63% “No” vote by the Dutch. The number will likely be adjusted slightly in the next hour or two as all the results are counted.