Archive for
July, 2005

Canada’s Nationalistic Internationalism

by Julian Ku

Despite my lame attempt to make my blogging hiatus mysterious, I’ve decided to admit that I’ve spent the last two weeks in the least foreign foreign country that exists in the world for most Americans: Canada. Indeed, for many foreigners, Canadians and Americans have indistinguishable accents and might as well be compatriots (an idea that I’ve broached previously here ).

To be sure, Canadians are different from Americans in subtle ways, as I’ve discovered over the past two weeks. It turns out that the average Canadian really does like donuts, hockey, and the phrase “eh?” more than even Americans from New England. Canadians also have seamlessly adopted the metric system and the Celsius temperature scale. Young Canadians appear to speak French in alarming numbers. Oh right, they are in love with their government-guaranteed health care system and cheerfully fork over sales, income and property taxes at levels that would cause populist revolts in most American states.

Most importantly, from an international relations perspective, Canadians do not exactly follow an aggressive or muscular foreign policy (their recent ridiculous kerfuffle with Denmark notwithstanding). Canada has a long and glorious military tradition joining up with Britain in the First and Second World Wars and following the U.S. lead into Korea and NATO. Modern Canada, however, is very suspicious of foreign adventures, especially adventures led by Americans. Indeed, the biggest foreign policy difference with its neighbor to the south is almost certainly Canada’s instinctive faith in liberal internationalism and international institutions.

Unlike the U.S., Canada is a founding member of the International Criminal Court, a party to the Kyoto Protocol, and a vigorous supporter of the U.N.’s peacekeeping missions. Canada balked from joining the Coalition of the Willing in Iraq (and its usual partners the U.K., the U.S., and Australia) largely due to the lack of U.N. authorization (in contrast, Canada has sent troops to Afghanistan pursuant to both U.N. and NATO resolutions).

In other words, Canada is the liberal internationalist country much of the rest of the world (or at least much of the international law world) wishes the U.S. would become.

What is interesting about Canada’s internationalism, however, is that it co-exists with a surprisingly fierce nationalism as well. Canadians are very proud of being Canadian, even if they are not sure what that means, as long as it means they are not Americans. There is no quicker way for an American to annoy a Canadian than to lazily suggest that Canada is just like America. Although the American is thinking that he has just paid the Canadian a compliment, he is more likely to have offended him.

In other words, Canadians don’t seem to mind giving up some measure of sovereignty, as long as that sovereignty is not being transferred to their irritating Yankee neighbors. In fact, the best way to understand Canada’s love affair with liberal internationalism is as the result of Canada’s never-ending quest to remain something other than America. Ironically, then, it is Canadian anti-American nationalism that is the ultimate source of its relentless internationalism today. And I don’t think this dynamic of nationalistic internationalism is limited to Canada. Other countries like France or China play this game as well, with far more dangerous consequences.

The Insidious Wiles, Redux

by Peggy McGuinness

Yesterday’s dispatch from Elizabeth reads, in part, like a section of an amicus brief for future constitutional challenges against state laws in the US banning gay marriage — a section that might be called “European and North American Practices in Protecting the Rights of Same-Sex Couples.” It certainly goes a long way to demonstrating that the nations that share our Christian-Judeo heritage (the heritage that opponents of gay marriage lean on heavily in their arguments for why the definition of marriage should not change) are moving toward broad civil rights — including the rights afforded heterosexual married couples — for same sex couples.

Should what Switzerland, Canada or Spain do on this question matter? We have had ongoing discussions on this blog of the topic of foreign sources in domestic jurisprudence (see this discussion from June — read the whole string). In what way did the practices of Europe and decisions of the ECHR matter in the Lawrence (striking down homosexual sodomy laws) and Simmons (striking down the juvenile death penalty) cases? In his majority opinions in both cases, Justice Kennedy’s references to foreign practices and international court opinions took the position that we should care about what certain countries do, particularly those countries with whom we have, more or less, a shared religious and cultural history. On the other hand, Elizabeth’s “Venus-Mars” characterization of differing trends in the US and Europe would, in many ways, support Scalia’s position (and echoes his dissents in Lawrence and Simmons): we wouldn’t dream of following European political practices when it comes to abortion rights, why would we do so for gay rights? On the other hand, if the main justification for denying marriage rights to gays is rooted in religious and cultural understandings of marriage, the developments in Canada and Europe (not to mention Massachusetts) demonstrate just how contingent those religious and cultural understandings may be.

ACS Conference note: The use of foreign and international sources in domestic law is one of the many interesting panels at this weekend’s ACS convention in Washington, DC. I am sorry to be missing it, but for anyone in the DC area over the next few days, the conference has much to recommend it, including a panel on interrogation, torture and the war on terrorism.

Geneva Dispatch #2: Switzerland Approves Same-Sex Partnerships

by Peggy McGuinness

In addition to the vote on Schengen/Dublin discussed previously, the Swiss also voted on June 5 to allow registered partnerships, providing same-sex couples with some of the rights of marriage. Fifty-eight percent of voters and nineteen of twenty-six cantons voted yes. I admit I was somewhat surprised by the support for this measure, given Switzerland’s longstanding social conservatism. (It was, after all, the last European country to give women the right to vote in nationwide elections, in 1971. The last Swiss canton to allow women to vote in cantonal elections did not do so until 1990.) Since registered partnership laws already exist in several cantons, however, perhaps extending federal legal recognition was not viewed as particularly controversial. In addition, the new law maintains a distinction between registered partnerships and marriage, perhaps making it more acceptable. The decision grants gay couples who register their partnership the same financial rights and obligations as married couples. A registered partnership does not, however, provide the right to carry the same family name, adopt children, or undergo fertility treatments. In addition, a foreign member of a registered partnership will not have the right to a Swiss passport or to expedited naturalization. The new law will come into effect on January 1, 2007.

In this, Switzerland joins a growing number of European countries, including Norway, Sweden, Finland, Denmark, France, and Germany, which provide some form of registered partnership for same-sex couples. The UK also recently enacted a registered partnership act that will come into force in December. In addition, three European countries — the Netherlands, Belgium, and most recently Spain, which did so in early July — have legalized same-sex marriage with the same rights and obligations as heterosexual marriage. (Canada also enacted a federal same-sex marriage law in July, although it was already allowed as a matter of provincial law in most of Canada’s provinces.)

Compared to the high emotions in the debate on same-sex partnership and marriage in the US, the Swiss treatment of this issue, both in the run-up to the election and the vote itself, seemed remarkably tame. The Swiss government and most political parties supported the measure, except for two small religious parties and the right-wing SVP (although the SVP’s leader, Justice Minister Christoph Blocher, toed the government line and called on voters to back the law). The Roman Catholic Church opposed the proposal, but the Federation of Protestant Churches supported it. The campaign was not particularly heated. An analysis of the June 5 vote recently released by Bern-based GfS Polling Institute shows that voters considered the vote on Schengen/Dublin more important than the one on same-sex partnerships. That conservative Switzerland would feel and vote this way, and that Catholic Spain would enact same-sex marriage, underline for me just how far apart European and American views are on this question. One only needs to compare these events in Europe with the 2004 US election: then, all eleven states where the issue was on the ballot – both red and blue – enacted by large majorities constitutional amendments banning same-sex marriage, eight of which also banned same-sex civil unions. (Similar measures previously existed in six states, plus the Defense of Marriage Act at the federal level.) This seems to me to be yet another instance where Americans are from Mars and Europeans are from Venus.

–Elizabeth Kandravy Cassidy

JAG Memos on DoD Interrogation Tactics Released

by Peggy McGuinness

Marty Lederman has this excellent analysis and the full text of the finally released JAG memos at Balkinization. What do the memos represent? The military lawyers on the United States vigourously objected to analysis by the Dept of Justice that the President is not bound by the Geneva Conventions — or domestic criminal statutes — when it comes to interrogation techniques against enemy combattants being held outside the United States:

The JAGs warned that if DoD embraced this clever strategy, in which there’s a technical legal justification for ignoring every presumed legal restriction, “the American people will find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values,” which would “affect our ability to prosecute the Global War on Terrorism.”

Compensating Iraqi Victims of the US Military

by Peggy McGuinness

One of the items on the agenda for US Secretary of Defense Rumsfeld’s meetings today with the new Iraqi leadership was the future legal status of US forces, either under an extension of the current UN Security Council resolution authorizing the US presence or a new Status of Forces Agreement (SOFA) between the US and Iraq. Both would create immunity from prosecution for US troops; the troops would only be liable under US law, the Uniform Code of Military Justice. The Iraqi government is rightfully concerned about negligent (and in some instances intentional) killings of Iraqis — both in and out of US custody. The US military has for some time been making quiet compensation in some of these cases. Casey seemed to confirm that this will continue to be standard procedure in Iraq. This from today’s WaPo:

The immunity of U.S. forces from Iraqi courts could be sensitive because of Iraqi concerns about innocent civilians being accidentally killed. On Wednesday, Jafari told reporters he had asked Casey to investigate cases of “wrongful killing” by American troops and to offer compensation and an apology. Casey confirmed that he had written the prime minister a letter stating that the military would investigate any such incidents that occurred within the past 60 days. He also said he would consider refreshing training for troops and considering more routine compensation not only for accidental killings but also for property damage.

Ongoing trials of American and British soldiers who have engaged in unlawful killings send an important signal that, despite the immunity from Iraqi law, we take seriously our obligation to investigate and prosecute criminal activity during war. (In the case of the UK trial, they are doing so in accordance with the complementarity provisions of the ICC statute.) By additionally compensating victims for criminal killings and for those in which no criminal charges are brought, we convey a sense of responsibility and remorse in terms that are culturally understood. But better to “refresh” training so that fewer mistakes are made in the first place.

In the case of detainees, as I argued earlier this week, having clearly defined parameters of treatment — set down by congressional statute, as opposed to vague and shifting notions of necessity emanating from the executive — would go a long way to ensuring that we have political accountability.

Terrorists as Pirates?

by Peggy McGuinness

Douglas Burgess has this take in Legal Affairs. He argues the Declaration of Paris offers a good model for a potential international treaty defining the crime of terrorism:

TO UNDERSTAND THE POTENTIAL OF DEFINING TERRORISM as a species of piracy, consider the words of the 16th-century jurist Alberico Gentili’s De jure belli: “Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law.” Gentili, and many people who came after him, recognized piracy as a threat, not merely to the state but to the idea of statehood itself. All states were equally obligated to stamp out this menace, whether or not they had been a victim of piracy. This was codified explicitly in the 1856 Declaration of Paris, and it has been reiterated as a guiding principle of piracy law ever since. Ironically, it is the very effectiveness of this criminalization that has marginalized piracy and made it seem an arcane and almost romantic offense. Pirates no longer terrorize the seas because a concerted effort among the European states in the 19th century almost eradicated them. It is just such a concerted effort that all states must now undertake against terrorists, until the crime of terrorism becomes as remote and obsolete as piracy.

Geneva Dispatch #1 Switzerland and the EU: Another “Ever Closer Union”?

by Peggy McGuinness

To relatively little notice, the proposed European Constitution has garnered several more approvals this summer, following the well-publicized French and Dutch rejections in late May/early June. Latvia, Cyprus and Malta ratified it by parliamentary vote on June 2, June 30, and July 6, respectively. And, in the first popular referendum since the French and Dutch elections, on July 10 voters in Luxembourg approved the draft, with 56.52 percent voting yes. These decisions bring the number of approvals to thirteen.

In addition, here in Switzerland, voters in June approved closer ties in several respects with the EU, including joining the Schengen passport-free travel zone. This does not necessarily mean that Switzerland is abandoning its traditional Euroskepticism, however. Another EU-related referendum, more controversial than the June vote, will take place this fall. On September 25, Swiss voters will decide whether to extend the free movement already allowed to workers from the fifteen original EU member states to workers from the ten states that joined last year.

Membership in international institutions has been controversial in Switzerland. Despite hosting many of its offices and agencies in Geneva, Switzerland did not join the United Nations until 2002. Similarly, despite being surrounded by EU countries and the fact that, aside from the US, its major trading partners are all EU members, Switzerland has not joined the EU. In fact, Swiss voters rejected moves toward EU membership in both 1992 and 2001. The Swiss government supports eventual membership, but the decision requires voter approval and public sentiment remains opposed. The main concerns are that EU membership would be inconsistent with Swiss neutrality, would undermine the cherished system of direct democracy, and would cost the country, whose economy is in better shape than those of its EU neighbors, more than it stands to gain.

The Swiss government has, however, negotiated a series of bilateral agreements with the EU and Swiss voters have so far approved these agreements (including the one whose extension is at issue in September). Most recently, on June 5, 54.6 percent of Swiss voters said yes to joining the Schengen and Dublin accords, which provide for passport-free travel and increased cooperation on security, immigration and asylum. As a result, as of 2008, there will no longer be systematic identity checks at borders between Switzerland and the EU, although checks at airports will remain. (Customs controls at Swiss-EU borders will also continue, as Switzerland is not part of the European Customs Union.) Swiss police will gain access to EU criminal and immigration databases, and Switzerland will become part of a European-wide system coordinating asylum proceedings.

Swiss and EU officials, worried about a possible domino effect from the French and Dutch no votes, breathed a sigh of relief over the Swiss yes. They may have done so too soon, however. While some last-minute polls showed support for Schengen/Dublin slipping, many Swiss voters had cast their ballots by post before the French and Dutch elections. Thus, the impact of the French and Dutch no votes on Swiss voters may not be seen until September. Moreover, the issue of extending freedom of movement to workers from Eastern Europe is more controversial than the issues around Schengen/Dublin. Given that the June margin of victory was rather narrow, the parties favoring extension in September are facing a tough fight. A recent poll by the Demoscope Institute for the Swiss magazine “Facts” showed 30 percent favoring the extension, 26 percent opposed, and 44 percent undecided.

The right-wing Swiss People’s Party (SVP) opposed joining Schengen/Dublin, arguing that it would cede decisionmaking power to EU bureaucrats and cause a flood of undesirables (criminals, illegal immigrants, cheap labor) to pour into the country. The SVP not surprisingly also opposes the proposed September extension. The campaign is likely to be, depending on one’s point of view, either colorful or demagogic. The SVP’s tactics before the June election included taking a Trojan horse around Switzerland and handing out handcuffs to passers-by on the streets. In the run-up to the June vote the SVP also played on fears of Swiss job losses, citing the specter of “Polish butchers,” who they argued would flood in through the open borders. This argument, the counterpart to the oft-cited “Polish plumbers” of the French no compaign, is sure to figure prominently in the fall. It will be interesting to see if their arguments resonate more, or less, this time around.

Typically, German-speaking Switzerland, particularly the rural east, has opposed increased integration with the EU and French-speaking Switzerland has supported it. This held true in June, when the German cantons, except for the urban centers of Zurich, Bern, Basel and Zug, voted strongly against Schengen/Dublin and the French cantons voted strongly in favor. However, this time around, the SVP’s argument that jobs will be lost to cheap Eastern European labor may find sympathetic ears in the French-speaking canton of Geneva, which has by far the highest unemployment rate in the country – 7.6 percent in June, compared to 3.6 percent nationwide. Also, French-speaking Switzerland may be less inclined in favor of Europe after the French no.

A Swiss no vote in September could have implications beyond the free movement of labor, both for Swiss-EU relations and for the EU more broadly. The EU still must ratify Swiss participation in Schengen/Dublin, and the EU foreign affairs commissioner cautioned after the June vote that this depended on the results in September. And with Euro-nerves on edge after the French and Dutch votes, politicians around the continent may look to the Swiss vote as a sign of whether the momentum toward an “ever closer” Europe can be reestablished.

–Elizabeth Kandravy Cassidy

Dispatches from Geneva: Elizabeth Kandravy Cassidy

by Peggy McGuinness

I want to welcome Elizabeth Kandravy Cassidy to Opinio Juris. Elizabeth is an American attorney currently living in Geneva who will offer a comparativist perspective to our musings. She has taught comparative and constitutional law overseas (Univ. of Namibia) and employment, gender and family law in the US (Princeton and Seton Hall). Over the next two weeks she will be providing a number of dispatches on developments afoot in Geneva and Switzerland — reporting, if you will, from the mothership of international law. Welcome, Elizabeth!

Will the Bush Administration Oppose Humane Treatment of Detainees?

by Peggy McGuinness

For months, the Bush administration has relied on its own legal analysis (bolstered now by the DC Circuit’s opinion in Hamdan) that the Geneva Conventions do not apply to detainees in Guantanamo. Nonetheless, President Bush claimed in 2002 that, despite this legal conclusion, all detainees in custody at Guantanamo and elsewhere would be treated “humanely” and consistent with the principles of the GC. Well then, if the law is changed to require define who is and who is not entitled to humane treatment, what the bounds of that treatment are, and how commissions should constitutedted to review those issues, that should not be a problem, right? It would conform exactly with what the President said was his policy. Not so. VP Cheney’s statements last week that the White House will block the attempts by the Senators McCain, Warner and Graham to amend the current defense appropriations bill with language that would require the armed forces (notably, the intelligence services are not included) to treat detainees humanely. Andrew Sullivan and Marty Lederman, are, as usual, on the case. with these terrific posts.

Let’s set aside the White House’s objection to Senator Levin’s separate proposal of an independent commission to investigate detainee treatment (it took two years for the opposition to make such a basic request for accountability?) and focus on the McCain amendment. At bottom, there can be only two rationales for the objection: (1) that this White House will oppose any checks on executive powers — even those carried out by Congress acting within its constitutionally committed power; or (2) the administration thinks treating prisoners inhumanely is good policy.

We are now out of the realm of international law skeptics advising the president that he is not, in carrying out the war on terrorism, bound by treaties to which the US is a party. We are squarely in the arena of domestic power sharing. It is one thing to say that the courts, absent contrary express congressional authority, should not weigh in on how the country wages the war against terror. It is quite another to say that the executive should not be restrained by the wishes of the majoritarian political branch. Here, we are not even talking about party politics. It is Republicans (one a notable former POW) who are pushing for the United States to spell out in the law what should be obvious to all: That the United States as a matter of policy does not abuse detainees.

WWJRD (What Would Justice Roberts Do) with International Law?

by Peggy McGuinness

In the midst of the pre-confirmation feeding frenzy over Judge John Roberts, it is worth considering (okay, wildy speculating about) how he would approach the use of foreign judicial opinions, legal sources and the more complex questions about how international law is brought into effect through the federal courts. If, as the FT op-ed by David Garrow suggests, Roberts will be another O’Connor, will he step into her shoes as chief diplomat of the Court as well as chief legal pragmatist?

We have only two high-profile cases from Roberts’ time on the DC Circuit to draw on: Acree (dismissing a tort suit brought by US POWs against the Republic of Iraq on the grounds the ATS does not authorize suits against foreign governments. See Julian’s earlier post here.) and Hamdan (upholding the administration’s use of military commissions at Guantanamo. See posts here and here.) Roberts drafted the Acree opinion and joined Judge Randolph in the Hamdan case. As Julian has already noted, Judge Randolph cleverly avoided appearing to grant too much deference to the executive in constituting the military commissions by holding that the congressional authorization to use force following 9/11 granted the administration the power to constitute these commissions and trials. But the jurisprudential posture of Hamdan read together with Acree (in which the adminsitration filed a brief arguing against the POWs claim), could be construed as one that grants broad deference to executive decision-making in foreign affairs, with only a narrow role for the courts.

Professor Oona Hathaway shares some thoughts on additional Roberts cases at the ThinkProgress blog:

In a much less heralded case decided last month, TMR Energy Limited v. State Property Fund of Ukraine, Roberts signed onto an opinion (again authored by another member of the court) that takes the strong position that “[n]ever does customary international law prevail over a contrary federal statute” and cites a controversial new book on international law for the point that “political branches have the final say about whether and how [customary international law] applies in the United States and whether or not the United States will comply with it.” These issues are not nearly as settled in the case law as the opinion makes them out to be. They are instead the subject of vigorous debate and disagreement.
The only case I could find in which Judge Roberts signed onto an opinion that enforced international law was in Robertson v. American Airlines . In that case, the Court of Appeals (in an opinion again authored by another member of the panel) held that the two-year statute of limitations provided by international law applied to the claim of the litigant rather than the more generous three-year rule that generally governs in the District of Columbia and hence the litigant’s suit was barred.

Memos drafted by Roberts while in the Reagan White House Counsel’s Office (published online at the WaPo) Roberts drafted while in the Reagan White House on the Grenada invasion and the detention of the Mariel boatlift asylum seekers. As noted in the Post:

In a memo dated Jan. 13, 1984, he summarily dismissed retired Supreme Court justice Arthur Goldberg’s concerns, expressed in a private letter to the White House, that the 1983 U.S. invasion of Grenada was unconstitutional. “Goldberg is correct that the constitution vests the authority to declare war in the Congress,” he said. The president, however, “has inherent authority in the international area to defend American lives and interests,” an authority that “has been recognized since at least the time President Jefferson sent the marines to the shores of Tripoli. While there are no clear lines separating what the president can do on his own and what requires a formal declaration of war, the Grenada mission seems to be clearly acceptable.”

Roberts adopted a similarly expansive view of presidential powers in his review of the proposed Immigration Emergency Act. The bill was drafted in response to the 1980 Mariel boatlift crisis that brought 125,000 Cuban refugees to U.S. shores. Roberts noted that the legislation would have allowed the United States to “flexibly detain” illegal immigrants as well as “freely transport them between detention facilities.” He said: “It is a broad grant of emergency powers to the President, but I cannot conclude that it is too broad in light of the Mariel experience.”

On the question of whether foreign practices laws and decisions should be used in constitutional decision-making, we’ve got pretty much nothing in the Roberts record. Though I can’t imagine that asking whether European human rights decisions should be consulted on questions of homosexual rights or the death penalty — regardless of the legitimacy of such a practice — is a winning strategy for Democrats on the Senate Judiciary Committee.

While this kind of tealeaf reading can be counterproductive, particularly where there are so few leaves to read, Roberts appears comfortable with an expansive view of presidential authority under both the commander in chief and foreign affairs powers, including on the controversial question of whether the president has sole power to determine the scope of US obligations under treaties, and whether customary international law can ever be binding on federal courts. But he does not appear to be a Robert Bork on the fundamental question of whether international rules exist in a way that is justiciable.

Of course, if Roberts is confirmed and serves several decades on the Court, he is likely to be exposed to more foreign law, foreign judges and international travel than in any of his prior professional positions. Whether he becomes a Blackmun or Kennedy as a result of that exposure remains to be seen.

Tamanaha on "Legal Niceties" and Iraq

by Chris Borgen

My St. John’s colleague Brian Tamanaha has an interesting post at Balikinization about the World Tribunal on Iraq and “legal niceties.”

First Charges Against Saddam Hussein

by Peggy McGuinness

The Iraqi Special Tribunal, constituted to try Saddam Hussein and members of his former government, announced Sunday that the first case against Saddam had been referred for trial. The referral is akin to indictment in the US criminal justice system, and will allow the trial to be scheduled. The first case involves Saddam’s massacre of over 150 Shiites in Dujyal in 1982. (The largest known massacre by Saddam against Iraqi nationals was the gassing of over 5,000 Kurds at Halabja in 1988; charges in that case are likely to be forthcoming.) The Dujyal case appears to be well-documented, relatively straight-forward, with witnesses who are readily available, all of which make it suitable to be the first case heard against Saddam. A tribunal established with limited jurisdiction and purpose needs to establish credibility in the early cases.

Whatever one’s position on the US-led invasion of Iraq, prosecution of Saddam is important. The special tribunal was constituted more or less by an outside power (the CPA, though it technically ceded power to the Iraqi Governing Council for the purpose of official establishment of the court) but has come to include Iraqi judges and be governed by a combination of Iraqi law and international criminal law (for war crimes, crimes against humanity). This makes it different from, say, prosecution by the ICC — the wisdom of which I continue to doubt. The tribunal has faults, but it can serve an important function in discrediting Saddam apologists and giving voice to the many tens of thousands of victims of Saddam and his brutal regime. But it is equally important that the trial be perceived as independent of both the US and the current Iraqi government, fair, and impartial (or at least as impartial as possible under the circumstances). If it succeeds at that, it can, like many of the successful national prosecutions that have taken place in post-conflict/post-regime societies, play an important role in putting Iraq on a firm path toward the rule of law and democracy.

For those interested in monitoring this case and other investigations, the tribunal has a website, though it doesn’t appear to be updated very frequently.

Hamdan: Does Common Art. 3 Apply?

by Peggy McGuinness

Marty Lederman has posted this excellent analysis of the Hamdan case over at Balkinzation.com. As Julian pointed out in his original post, the DC Circuit’s conclusion that the Geneva Conventions do not apply to the current conflict with al Qaeda is vulnerable on appeal to the Supreme Court. Lederman probes deeper into the question of whether Common Art. 3 of the GCs (pertaining to conflicts “not of an international character”) should apply to Guantanamo. I happen to agree with Judge William’s dissent on this issue: Common Art. 3 was designed to apply to all conflicts that could not be categorized as between two sovereign states. Internal conflicts, insurgencies, and yes, cross-border terrorism and counter-terrorism, seem to all fit within the category of non-international.

As Lederman notes, the DCC opinion may have greater impact than Julian suggests. If Common Art. 3 does not apply at Guantanamo, then there is no treaty-based requirement of humane treatment. So while Hamdan is about the constitution of the military commissions, it has broader implication in the debate over treatment of detainees. Will this be enough to prompt congressional efforts to codify Common Art. 3? Lederman sees this as a distinct possibility. It would certainly shift power away from the executive to a more accountable branch.

I hear, in Lederman’s discussion of Senate discomfort with certain administration positions, echoes of the Israel Supreme Court opinion in the Public Committee Against Torture Case (38 ILM 1471, 1999) in which it held that, if the GSS wished to use certain physical means of interrogation (shaking, and certain other methods that “impinge on the suspect’s dignity, his bodily integrity and his basic rights”), it could only do so with parliamentary authorization:

This having been said, there are those who argue that Israel’s security
problems are too numerous, and require the authorization of physical
means. Whether it is appropriate for Israel, in light of its security
difficulties, to sanction physical means is an issue that must be decided
by the legislative branch, which represents the people. We do not take
any stand on this matter at this time. It is there that various considerations
must be weighed. The debate must occur there. It is there that the
required legislation may be passed, provided, of course, that the law
“befit[s] the values of the State of Israel, is enacted for a proper purpose,
and [infringes the suspect’s liberty] to an extent no greater than required.”
What about whether the protections of Common Art. 3 applies as a matter of customary international law? The fact that the Bush Administration changed over 5 decades of US government practice on the applicability of Common Art. 3 — and its status as customary international law — appears to be a significant (if not determinative) fact in this case. Indeed, why else would the administration have gone to the trouble of changing the policy if it intended to actually extend the minimal protections of Common Art. 3 to the Guantanamo detainees? If it is the case that the President is always acting constitutionally when he determines whether the US is bound by an international custom, challengers will continue to lose on this question.

The 2005 ICRC restatement of customary humanitarian international law was not cited by the DC Circuit. My own (admittedly, cursory) reading of those volumes suggests that while there is room to debate whether the terms of Comm. Art. 3 are meant only to apply to those conflicts that are geographically non-international (i.e. civil wars), its protections extend — through practice and through incorporation of other international human rights instruments — to all detainees.

But even it SCOTUS decides that the GCs and Comm. Art. 3 apply and create justiciable grounds for a habeas challenge, it doesn’t result in instant victory for the plaintiff. As the DCC notes, if Comm. Art. 3 applies, the federal courts may still require that detainees exhaust all of their remedies through the military justice system before brining a collateral challenge under the Geneva Conventions. Even the most generous reading of customary international humanitarian law will not get plaintiffs out of the exhaustion requirement.

Ku Retreats to an Undisclosed Location

by Julian Ku

My blogging will be very light over the next two weeks as my wife and I retreat to a more or less undisclosed foreign location. We’ll see whether I can stay away for long…

Sandra Day O’Connor: Chief Diplomat

by Julian Ku

It looks like Justice O’Connor is not going to slow down much in retirement. As this article notes, she spent last week attending a conference of the Central and Eastern European Legal Initative (CEELI) in Istanbul. Apparently, Justice O’Connor is passionate about building and promoting independent judiciaries in the former Eastern Bloc and Soviet Union. Interestingly, she herself apparently first gained notice from former Chief Justice Burger by attending an international conference in the UK way back when. So the Court is not only losing an associate justice, but probably its “Chief Diplomat” as well.

D.C. Circuit Upholds Military Commissions

by Julian Ku

As I predicted back in April, a panel of the D.C. Circuit unanimously rejected constitutional and treaty-based challenges to a trial of alleged terrorists by military commission. The decision reversed a lower court’s finding that the whole military commission system is a violation of the Geneva Convention. The D.C. Circuit’s key holdings:

  • The Sept 11 Resolution for the Authorization of the Use of Force, combined with prior statutory authority, authorizes the President to try detainees in military commissions.
  • The 1949 Geneva Conventions are not judicially enforceable in federal court.
  • Even if they did apply, Hamdan (the detainee) would not qualify for protections as a prisoner of war nor would he find protection in Common Article III because he is an unlawful enemy combatant.
  • The Court also held that any judicial remedies, if they exist, must occur after the petitioner has exhausted his military remedies
  • Finally, the court holds that military commissions do not violate the Uniform Code of Military Justice.

The first two holdings are by far the most important. By tethering the military commissions to the September 11 Resolution, the D.C. Circuit avoids all the talk of presidential unilateralism by shifting responsibility to Congress. Moreover, by finding the Geneva Conventions judicially unenforceable, the Court has dispensed with all the nitty gritty battles over what those conventions require.

I think the first statutory authorization point is very strong and should withstand appeal. But the question of the judicial enforceability of the Geneva Convention is quite complicated. The Court here relied heavily on a previous Supreme Court’s reading of an earlier version of the conventions. This holding may prove vulnerable on appeal, although I think it will be ultimately upheld.

Suppose the D.C. Circuit is upheld on appeal? Can we live with this result? Well, I can. We are not talking about torture here folks. Rather, the question is what kind of procedures will be granted to detainees charged with committing terrorism or war crimes. The Administration would have wide, but not unlimited, discretion to carry out military commission trials. This seems like a sensible result to me. At least there is an effort to punish the detainees rather than just hold (and maybe abuse) them.

Japan v. China: Why Not the ICJ?

by Julian Ku

This week Japan granted undersea gas drilling rights to an area also claimed by China. This is a separate dispute from Japan’s attempt to convert a rock into a Tokyo address. But it is another serious irritant in what is an increasingly contentious and dangerous relationship.

Why can’t Japan and China agree to submit their dispute to the ICJ like Benin and Niger did? The dispute should be resolvable under principles derived from the UN Convention for the Law of the Sea.

I think the answer is that the two countries don’t really trust outside institutions like the ICJ to resolve matters that are very important to them. Again, this is odd. Note that both Japan and China have had judges serving on the ICJ whereas Niger and Benin have not. But maybe familiarity breeds contempt?

Srebrenica: Justice, Peace and Reconciliation

by Peggy McGuinness

The papers this week have been filled with discussions of the ten-year anniversary of the Serb massacre at Srebrenica. Two articles well worth reading are Christopher Hitchen’s post at Slate, and this one in the Economist (sub. req’d). I also read with great interest the comments to Julian’s post on the broader question of deterrence and international criminal law. While some (like Professor Rosa Brooks) may look back on the past ten years as marking progress in bringing criminals to account for atrocities and crimes against humanity, an equal case can be made that the decade has represented abject failure — of both law and policy.

Srebrenica was a nadir for lawyers, for the United Nations, the EU and the entire international community precisely because the massacre took place under the harsh light of publicity (remember when the war in Bosnia led the news almost every night?), within a UN-mandated and NATO-protected “safehaven,” during a UN-mandated peacekeeping operation. It is also important to recall that it took place when the ICTY had already been created and was finally gaining some momentum in its early investigations and indictments. (Admittedly, more robust intelligence cooperation from the US and UK came later.) There was, in other words, a court with jurisdiction over the territory, actors and the crimes that would take place in Srbrenica. But it didn’t make a difference. Despite an engaged international community, a court with jurisdiction to prosecute crimes, troops on the ground with a mandate to protect the very people at risk, it happened. In Europe.

And, as Hitchens points out, the shame that we all share does not end there. The two men responsible — Radovan Kradic and Ratko Mladic — are still at large. In Europe. Hiding, as it were, in plain sight. How can anyone claim victory for the idea (or ideal) of prosecution in this case? If the European supporters of the ICC really believe in prosecution, there should be a daily drumbeat of pressure on Serbia and Bosnia and on the EU, whose troops took over the Bosnia peacekeeping mission from NATO last year.

Part of the explanation for why these atrocities continue to happen lies outside politics and law. International human rights and criminal lawyers have begun to look beyond strict international legal doctrine to take into account the unique psychological and sociological conditions in which mass atrocities take place. In the cases of Rwanda and Bosnia, studies have demonstrated that conditions for mass murder can be created. And if conditions can be created, they can be monitored by the international community for the purpose of preventing future acts.

As we have discussed on several occasions on this blog, I share Julian’s general skepticism that international criminal law is a deterrent of the types of crimes it is designed to prosecute. To be fair, as some of the comments to his post note, the deterrence argument has largely been abandoned in debates over the ICC. Retributive justice, truth telling, and political reconciliation are additional values that can be promoted through prosecution. But sometimes the latter two values are better promoted through non-prosecutorial mechanisms (truth commissions, peace agreements, institutional power-sharing, post-conflict education). Retribution is often all that is left.

Srebrenica offers some important lessons for international dispute resolution as well. It was, arguably, the nadir of the Srebrenica massacre (taken together with the 1994 Rwandan genocide) that finally jolted the US and, most important, the Europeans, to real military intervention to end the war in Bosnia. It certainly altered the terms of the broader debate over military interventionism in cases of mass atrocity — bringing together the neocon interventionists with the liberal humanitarian interventionists. The memory of Srebrenica loomed large when Kosovo started to unravel in 1998-99; those arguing against intervention at that stage had little moral ground to stand on. But memory is short within the international community. International human rights and humanitarian law place individual life at the center; international politics do not. Conflict prevention, like liberty, requires eternal vigilance. As I have argued in the cases of Darfur and Uganda, prosecution should not be used as a way to excuse effective outside engagement in conflict resolution.

But neither intervention nor prosecution address the most vexing problem: Long-term peace and reconciliation. Some of the comments have noted that the ICC is intended to assist and complement national legal processes. Accepting that the ICC (and the ICTY and ICTR) can have an impact by developing jurisprudence from which national courts can borrow, how else does an international prosecution contribute to peace and justice? Japan and Germany are still grappling with their own histories in very real ways that affect their societies, culture and domestic and international politics. Where will Bosnia, Rwanda and Kosovo be in 50 years?

Should the U.S. Transfer Control of the Internet to the U.N.?

by Julian Ku

While some (mostly right-wing) groups continue to worry about the transfer of “sovereignty ” to the UN in treaties like that for the Law of the Sea Treaty, there is a far more important international struggle afoot: control of the internet.

As CNET reports, a recent meeting of the U.N.’s Working Group on Internet Governance turned into a gripe-session where various emerging powers like China and Brazil explained that they are getting fed up with U.S. control of Internet addresses. The U.S. government controls root addresses and a non-profit private entity ICANN controls actual addresses. China, Brazil, and other developing countries have called for ending U.S. dominance and transferring internet governance into a UN framework.

It would be easy to dismiss these calls as ridiculous. If the UN can’t administer its own internal matters, how could it regulate the internet? But I can understand why it would annoy various countries that the master file for root addresses sits in some computer in the U.S. Commerce Department.

But international regulations are not the answer here. Rather, control of the internet is a classic coordination problem best handled by a central administrative body, such as the International Telecommunications Union. But there is really no need to fold internet regulation into the already byzantine UN bureaucracy.

Nationalist-type might ask: why bother? As long as the U.S. remains in control, what is the big deal? As the article points out, however, countries like China do have some recourse: They can create their own root addresses and create a fragmented internet. Both the U.S. and China have strong reasons to work together to avoid such a situation. But some sort of compromise is probably necessary in the long term.

More on the Effectiveness of International Criminal Justice

by Julian Ku

I just wanted to thank those readers who have added very thoughtful comments to my post on deterrence and international criminal justice here. For those of you who haven’t seen the comments, I hope you find time to take a look and maybe drop a few comments yourself.

ICJ Watch: Niger Wins (Sort of)

by Julian Ku

A Chamber of the ICJ issued a decision today (only the summary is available so far) in the long-running border dispute between Niger and Benin. The Court awarded Niger 16 out of 25 disputed islands, including the largest island, lying in the Niger River on the border between the two countries. The two countries have been squabbling over the islands, sometimes in violent clashes, since they both gained independence from France in 1960. Compliance seems assured because both countries have already announced they will comply.

This case is a great example of the ICJ acting in its classic role as a special arbitration commission. Both Benin and Niger agreed in 2002 to submit this dispute to the ICJ by special agreement rather than by simply acceding to the compulsory jurisdiction of the Court. Moreover, each country appointed one member of the 5-member chamber (not surprisingly, the Benin-appointed judge dissented on almost the whole judgment). By sending it to a chamber, the two countries also probably saved themselves some time as the ICJ managed to issue its decision about three years after the initial case was filed.

The Court’s decision is highly technical and it draws heavily on traditional international law governing boundaries. In particular, it follows the somewhat controversial principle of uti possidetis juris, whose “primary aim” (according to the Court) “is . . . securing respect for the territorial boundaries at the moment when independence is achieved”. In other words, this principle instructs international lawyers to respect the boundaries largely created by the colonial administrations rather than attempting to go back to pre-colonial claims. It’s somewhat controversial because, of course, the colonial boundaries were often drawn for colonial administrative purposes rather than as a reflection of pre-existing cultural, political, or geographic units.

Applying this basic principle, and digging through lots of historical documents from France’s colonial administration, the Court decided to draw the boundary at the river’s most navigable channel, because that was where the local authorities (e.g. French colonial administrators) seemed to draw the line in the past. Of course, the full judgment is a lot more complicated than that, but this is the gist of the decision from what I can tell.

I think this is another example of how international law and international courts can be very useful. Although the moral attractiveness of using French colonial practice to draw a line between two sovereign states is somewhat questionable, it is usually better to have some rule rather than no rule. Moreover, the ICJ served a very useful purpose here, providing a relatively speedy and effective resolution of an international dispute that seems acceptable to both sides.

Diplomatic Deadbeats: New York City Collects Back Taxes on UN Missions

by Julian Ku

Sometimes, international law wanders far afield from questions of international criminal justice and basic human rights. Sometimes, it is just about collecting some money. Case in point: the City of New York has apparently won a judgment in federal court clearing the way for it to collect a total of $25 million in back taxes from the governments of India and Mongolia. The taxes are owed on two properties in New York City used to house staff at the governments’ U.N. missions.

The decision for the court here is simply whether the two governments have sovereign immunity under the Foreign Sovereign Immunities Act. The court ruled that an exception to sovereign immunity applied where “rights . . . in immovable property in the United States are in issue.” (28 U.S.C. §1605(a)(4)).

Interestingly, the two governments did not argue that they have immunity from taxes under either the Vienna Convention for Diplomatic Relations or the U.N. Headquarters Agreement. I’m not familiar enough with those treaties to know if some further protections might exist, but I believe those protections extend only to the ambassador-level (and neither of the properties house ambassadors to the UN).

There probably isn’t anything profoundly important going on here. Just a run-of-the-mill dispute that international law, in this case in the form of a federal statute, provides a sensible rule of decision.

Does International Criminal Justice Deter Criminals?

by Julian Ku

UVA lawprof Rosa Brooks has a measured op-ed in Sunday’s LA Times surveying the progress of efforts to prosecute serious violations of international human rights on the 10th anniversary of the massacre at Srebenica. Unlike some advocates of international criminal justice, Prof. Brooks is restrained in her claims for the benefits of international tribunals like the International Criminal Court. Even so, her justification for expanding the scope and powers of international criminal courts has some problems. She writes:

But though it’s only a distant second-best to preventing atrocities, punishing perpetrators is still important. It acknowledges the suffering of the victims and in the long run could help deter future abuses by forcing the bad guys to ask themselves if the abuses are worth it, given the increasing likelihood of ending up in jail somewhere down the line.

I don’t doubt there are many good reasons to punish perpetrators who have committed serious abuses and that, in some cases, international institutions are necessary to carry out this punishment. But I don’t think Prof. Brooks, or any other scholarly supporter of the ICC, has bothered to offer support for her claim that international punishments create a “deterrent” to future abuses by other potential perpetrators.

The strength of the deterrence effect of certain kinds of criminal punishment is very difficult to determine. But, as many of the same human rights advocates have pointed out in battles over the use of the death penalty, it is possible, and even probable, that the threat of capital punishment does not deter many criminals from committing murders or other serious crimes. So isn’t it plausible that potential war criminals will not be deterred in any meaningful way by international courts? This is not to say we shouldn’t punish war criminals or execute murderers. It just means that it is possible, or even likely, that such punishments will have little if any deterrence effect.
Why does this matter? Because much of the argument between the U.S. and supporters of the ICC rests on the deterrence rather than the retribution rationale. The U.S. supports international criminal courts set up to punish specific sets of crimes occurring in a particular place. The ICC is a permanent court with wide jurisdiction. The main superiority of the ICC is that it supposedly creates a deterrence effect that ad hoc courts set up after the fact (as in Yugoslavia and Rwanda) cannot.
But if there is not much of a deterrence effect, why shouldn’t we rely on ad hoc criminal tribunals, as the U.S. has suggested?

UN Reform Conference Call

by Peggy McGuinness

The ASIL international organizations interest group has forwarded the following information about a conference call tomorrow, July 9, at 1:00 pm EDT, with Ed Mortimer of the UN and Don Kraus from Citizens for Global Solutions. For those of you interested in the reform agenda and the upcoming September summit, this sounds like a good opportunity to get up to speed on some of the central issues with two people closely involved in the process.

UN REFORM AND THE SEPTEMBER SUMMIT
This Saturday, July 9, 2005 1:00 PM Eastern time
Dial Toll Free: 800-391-2548

Verbal password: V A 3 1 7 8 5 5

War or Crime? Some Thoughts on the 7/7 Attacks in London

by Julian Ku

I didn’t want to seem wholly unaffected by the horrible terror attacks in London, but I didn’t feel like I had anything useful to add from an international legal point of view. But where a cautious lawprof blogger fears to tread, lawyer Andrew McCarthy does not, in this blistering National Review Online piece.

McCarthy’s basic point is that the UK, unlike the U.S., has generally embraced the “law enforcement” approach to the war on terrorism. As McCarthy notes, the UK has:

  • adhered to Protocol 1 to the Geneva Conventions, which make it more difficult to classify someone as a unlawful combatant.
  • tossed out tough new anti-terrorism laws as a violation of EU human rights standards
  • released British nationals detained in Guantanamo Bay not because they did not believe those detainees were dangerous, but because they had no legal basis to prosecute them.

The larger sort of legalistic point is that the UK and many countries continue to see terrorism as a criminal law enforcement problem than a military problem. According to McCarthy, this hampers the UK’s ability to fight terrorism.

I’m sure McCarthy is exaggerating the extent to which these legal distinctions could have made a difference in the 7/7 attacks. But he does put his finger on the key political-legal battle over the war on terrorism.

Is it legitimate for countries fighting terrorism to adopt aggressive military tactics generally reserved for wartime: e.g. kidnappings and renditions, preemptive bombings/assassinations, preventive detentions, harsh interrogations? Or should countries stick to the basic law enforcement model that is more likely to protect citizens’ civil and political liberties? Or is there some third way that could balance these concerns?

My own take (for what it is worth) is that we need some sort of third way, but if I had to pick between the “war” approach vs. the “law enforcement” approach, I would have to go with the “war” approach as the lesser of two evils. It seems to me, though, that it is the responsibility of lawyers and policy makers to come up with some third way rather than simply take potshots at each other from their ideological bunkers.

Trends in Foreign Law Citation in U.S. Courts

by Julian Ku

Rising Washington & Lee lawprof David Zaring has a nice (and somewhat brave) post up at Prawfsblawg previewing some descriptive research he has done on the citation in foreign law by U.S. courts over a long stretch of time. Here is his main conclusion so far:

  • citation to foreign authority is hardly unprecedented, even in the modern era;
  • but such citation, when it does happen, is limited, supportable under a number of theories of judging, and rarely applied to constitutional interpretation.

A couple of clarifying questions:

What is “foreign law”? Does that include foreign interpretations of international law? Does it include British common law?

When was the first recorded instance in David’s research (1945-2005) of a court using foreign or international law to interpret the U.S. Constitution?

This sounds like a neat project, but I’m not exactly sure in the end what David is driving at. I’m not sure that critics of the current Supreme Court’s project of incorporating foreign and international law into constitutional interpretation argue that U.S. courts should never cite foreign law. If that is his goal, I think he will end up missing his target.

I do think that this kind of study might be useful in clarifying the different ways foreign law is used, but ultimately, I think I would want to see claims of causation or trendlines. For instance, the trendline toward more usage, or different kinds of usage (e.g. constitutional interpretation), might be important. Or there is some causation somewhere — resulting from the adoption of various private international law treaties or the increase in foreign trade, etc.

Anyway, I welcome David to the blogosphere and commend him for being willing to put his research ideas in progress on a blog for sniping by people like me. I think this is a great trend, although one I’m not yet ready to embrace.

WTO Watch: Bush Will Comply, but will Congress?

by Julian Ku

In yet another case of U.S. compliance with an international tribunal ruling, the Bush Administration has proposed legislative changes that would reduce U.S. cotton subsidies (by about $350 million) and bring the U.S. into compliance with a WTO decision won by Brazil. This action follows its announcement last week that the Administration would make certain administrative adjustments to comply as well.

Brazil has filed a request for WTO permission to retaliate, but appears ready to suspend this retaliation unless Congress refuses to enact the changes. And Congress, at least according to this report, is not exactly rushing to comply. Note how this is moving out of the President’s hands and into the tricky waters of congressional politics.

Keeping Score in the Great Game

by Chris Borgen

There are increasing reports about rising anti-Americanism in the Central Asian Republics and pressure by these republics for the U.S. to have an exit timetable for the troops stationed there. Contrast this with the argument of some strategists that the U.S. needs to establish a long term presence in these republics to (a) prevent terrorist training camps from taking root once again and (b) deter China from using long-range missile sites in Western China against Asian shipping or other potential targets. This latter point was made most effectively by Robert Kaplan in his Atlantic Monthly cover story, in which he argued the U.S. will need to be in the Central Asian Republics for the long haul. (But see also this critique of Kaplan’s argument by Praktike.) With the echoes of the 19th century intrigue in the region between the United Kingdom and Russia, this has inevitaby been termed the “New Great Game.”

It seems like the game just got a little tighter. The new Shanghai Cooperation Organization, anchored by Russia and China, brings together Kazakhstan, Uzbekistan, Tajikistan and Kyrgyzstan, in a loose regional grouping that is partially motivated by off-setting U.S. influence in the region. Russia, which had been the regional bad-guy, is now regaining favor in part because the leaders of the Central Asian Republics are upset over what was viewed as U.S. support for the popular uprising that overthrew the leader of Kyrgyzstan. And now the U.S. is critical of Uzbekistan’s government in the wake of the massacre there. And so the “wave of democracy” that people were recently cheering on may have a nasty geostrategic riptide.

Such an alliance is textbook balance-of-power behavior. The Central Asian Republics embraced the U.S.—and offered basing rights for the war in Afghanistan and for other operations—when they thought the U.S. could break Moscow’s bear hug on the region. But while U.S. money (and protection) is good, this democracy stuff may be more than they bargained for. So perhaps Russia and rising regional hegemon China should be invited back into the game to even up the odds.

Thus Russia and China have just firmed up each of their hands because the other players have tipped their cards.

The Central Asian Republics, for their part, are likely to keep using the major powers to balance each other.

But what will the U.S. do? Will the U.S. continue using the “spread of liberty” rhetoric or will it hush its criticisms in the face of retaining basing rights? Will there be other concessions in order to stay in the game? The U.S. also knows that while the Central Asian Republics don’t want the democracy rhetoric, nor do they want the U.S. completely out of the game. So George Bush gets to play the wild card, the Joker.

Justice O’Connor and the Complexities of International Law

by Chris Borgen

Justice O’Connor’s views on international law and foreign law are moderate, well-reasoned, and consistent. Julian points out two quotes and implies that, somehow, they don’t fit together in a “[]satisfying” world view. I disagree. On topics of international law, Justice O’Connor has consistently held that U.S. judges should, in certain instances, give persuasive authority to international tribunals. It is also her view that they do not have to do so as no international or foreign tribunal has been given judicial authority by the Constitution. It is not necessarily a view that some people (on the right or the left) like, but it is logically consistent and it hangs together.

Justice O’Connor chairs the Judicial Advisory Board of the American Society of International Law. While I was the Director of Research and Outreach of the ASIL I had the pleasure of working with her over the course of three years in developing programs on international and foreign law for U.S. judges. She has a deeper and more realistic understanding of the complexities of these issues than most international lawyers — and critics of international law — that I know.

Judges are not hermits. They talk to their colleagues on the same court and from different courts. The law is not hermetically sealed. International law, foreign law, and U.S. law interact in the work of judges. Some academics and pundits spin theories of what judges should do without really understanding what the work of judges actually entails. Others build grand theories of international law that have little bearing on what is actually applied by judges. Justice O’Connor’s views of international law are informed by having taken part in the formal process as well as the informal interactions that are part of being a judge for more than a quarter-century. Her views are also anchored in a deep understanding of the rules that are actually applied by U.S. courts. Here is what she said in part of her Keynote Address to the Annual Meeting of the American Society of International Law in 2002:

…international law is no longer confined in relevance to a few treaties and business
agreements. Rather, it has taken on the character of transnational law–what Philip Jessup has defined as law that regulates actions or events that transcend national frontiers. Both public and private international laws are included, as are other rules that do not wholly fit in to such standard categories.

Although international law and the law of other nations are rarely binding upon our
decisions in U.S. courts, conclusions reached by other countries and by the international
community should at times constitute persuasive authority in American courts. This is
sometimes called “transjudicialism.”

American courts have not, however, developed as robust a transnational jurisprudence as they might. Many scholars have documented how the decisions of the court on which I sit have had an influence on the opinions of foreign tribunals. One scholar has even said
that, when life or liberty is at stake, the landmark judgments of the Supreme Court of the
United States, giving fresh meaning to the principles of the Bill of Rights, are studied with as much attention in New Delhi or Strasbourg as they are in Washington, DC or the
state of Washington or Springfield, Illinois.

This reliance, unfortunately, has not been reciprocal. There has been a reluctance on our
current Supreme Court to look to international or foreign law in interpreting our own
Constitution and related statutes. While ultimately we must bear responsibility for
interpreting our own laws, there is much to learn from other distinguished jurists who
have given thought to the same difficult issues that we face here.

The court on which I sit has held, for more than two hundred years, that acts of Congress
should be construed to be consistent with international law, absent clear expression to the contrary. Somewhat surprisingly, however, this doctrine is rarely utilized in our court’s contemporary jurisprudence. I can think of only two cases during my more than twenty years on the Supreme Court that have relied upon this interpretive principle.

We have refused to consider international law and the law of other nations when
interpreting our own Constitution…

Although our reliance on international and foreign law is rare, it is not nonexistent. For
instance, we have looked to international law notions of sovereignty when shaping our
federalism jurisprudence and to international law norms in boundary disputes between
American states. In areas such as these, it would be a mistake to ignore the rich resources developed in the law of nations. I suspect that, with time, we will rely increasingly on international and foreign law in resolving what now appear to be purely domestic issues.

I have not even scratched the surface of the issues and areas of application of foreign and
international law in U.S. courts. The fact is that international and foreign law are being
raised in our courts more often and in more areas than our courts have the knowledge and experience to deal with. There is a great need for expanded knowledge in the field, and the need is now.

Justice O’Connor’s view of international law is particularly realistic because it recognizes that international law is not just like domestic law and thus its uses and applications may be different. I think that her understanding of international is not only informed by her tenure as a judge, but also by her experiences as a legislator, having to build consensus among different political actors. Consider the following quote, from the same speech:

Just as we have said since the Paquete Habana case, “International law is part of our
law.” International law, which is the expression of agreement on some basic principles of relations between nations, will be a factor or a force in gaining a greater consensus among all nations concerning basic principles of relations with nations that, as of now, are withholding their agreement on some aspects. It can be, and is, a help in our search for a more peaceful world.

A broad consensus on how nations should treat prisoners of war has recently to a degree influenced our own government in its handling of prisoners taken in Afghanistan; they were perhaps not technically covered by the Geneva Convention but they will
nevertheless be treated largely as if they were.

Acting in accord with international norms may increase the chances for development of broader alliances, or at least silent support from other nations.

Perhaps Justice O’Connor does not go as far in applying international law as some would want. Perhaps she does not reject international and foreign law as others would demand. Perhaps a lifetime of experience in the legislative and judicial branches makes such ideologically pure results practically unsatisfying.

Unlike some scholars, who focus on international law in the domestic courts, or others, who are primarily concerned with international law and international relations, when Justice O’Connor spoke about international law, she showed an appreciation for both sets of concerns. This Janus-faced outlook, seeing both international and domestic implications, has allowed her a greater understanding than most of the strengths and weaknesses of international law, making her views moderate, realistic, and, yes, analytically satisfying.

The ICJ Rolls On (Like Molasses)

by Julian Ku

The ICJ is hearing oral arguments this week in a long-running case between Rwanda and the Democratic Republic of Congo. Congo is alleging that Rwanda is responsible for the deaths of some 3.5 million Congolese who have died during Congo’s civil wars because of Rwanda’s intervention in that civil war. Congo is asking for an order from the ICJ requiring Rwanda to desist from its intervention and to pay compensation.

The law and facts here are pretty messy, although Congo’s attempt to fix all of the responsibility for its problems on Rwanda seems dubious. Still, it is remarkable that a case of this sort has been brought to the ICJ. And it is even more remarkable that the ICJ has made no special effort to resolve the case expeditiously. Yes, I’m beating a dead horse here, but the ICJ simply cannot be an effective tribunal if it cannot speed up its consideration of cases. This week, the ICJ is considering only the jurisdiction and admissibility of the case (along with a new request for provisional measures by Congo). The written briefs on this portion of the case were filed in January 2003. No explanation is provided by the ICJ for why it waited two and a half years (July 2005) to hold hearings on those written pleadings. As far as I can tell, neither Congo nor Rwanda asked to suspend the case during that time.

The best case scenario for Congo: In about six months, Congo will win a decision from the ICJ granting them a provisional measures order and a decision to retain jurisdiction over the case. Congo can then go ahead and file their case on the merits, for which it can expect to wait another three years or so (or longer, because the factual issues will take more time to consider next time). So, maybe by July 2008, just in time for the Beijing Olympics?

One hopes the ICJ is simply inefficient and that its justices are lazy. Or it may be that the ICJ simply doesn’t care a whole lot about the Africa cases, which is why it was willing to move faster in cases against the U.S. and Israel. Either way, its (slow) downward spiral into irrelevance continues.

The Founding Fathers as Internationalists

by Julian Ku

Just in time for Independence Day, Northwestern Law Prof John McGinnis has posted this neat little article arguing that the Founders were free traders much in the same vein that the U.S. government is today. In particular, he notes that the Continental Congress approved a “Model Treaty” that would have provided “national treatment” to treaty partners, e.g. that nationals of foreign countries would receive the same treatment in the U.S. for taxes and duties as U.S. nationals received in their countries. In other words, according to Prof. McGinnis, the Founders were free trading internationalists.

This is an interesting point, and provides yet another angle to a question that has recently percolated in the courts and the academy: Were the Founders liberal internationalists? Did they (in addition to free trade) also believe in respect for and compliance with international law as the primary mechanism of conducting foreign relations? Would they have believed that judges should, whenever possible, cite to international law and opinion in the development of constitutional law?

For many modern internationalist scholars, the answer to this question is a “yes.” Now, few internationalists are also originalists, but it is a trope of internationalist foreign relations scholarship to cite to the Founders anyway, if only to embarrass their originalist/formalist critics.

My own view is that the Founders were probably liberal internationalists in many ways, but their commitment to such internationalism is only mildly reflected in the actual text of the Constitution. Here, it might be useful to draw on Justice Scalia’s distinction between “original intent” and “original meaning.” We might speculate about what the Founders would want to do with today’s issues, but the proper legal analysis should focus on what the Founders meant in the use of particular words in drafting the Constitution.

Which brings me back, in a very roundabout way, to the Declaration’s famous internationalist language recommending “decent respect for the opinions of mankind.” (discussed previously here). I think this is more than admirable as a matter of political principle, but I don’t think this language should matter a whole lot for constitutional interpretation unless someone can show me evidence that this phrase is somewhere in the Constitution in the guise of some other text.

Anyway, just some fodder for conversation today as you munch on your burgers and hot dogs at the pool or beach (and as long as you don’t mind coming off a bit geeky). Happy July Fourth!

Justice O’Connor: A Moderate on Internationalism as Well

by Julian Ku

I have very little to add to the zillions of articles and blog posts about the retirement of Justice Sandra Day O’Connor and her likely successor. I did want to point out, though, that Justice O’Connor was (not surprisingly) a moderate in the Court’s recent embrace of foreign and international law. Justice O’Connor appears to see some useful analogies to the relationship between state and federal courts. As she writes in an article entitled “Federalism of Free Nations,”

As our country moves toward a more international regime of dispute resolution, this federalist ideal of healthy dialogue and mutual trust may be possibly be adapted to describe the proper relationship between domestic courts and transnational tribunals. It is a relationship which might be described as a “federalism of free nations,” to use a phrase of the philosopher Immanuel Kant. Just as our domestic laws develop through a free exchange of ideas among state and federal courts, so too should international law evolve through a dialogue between national courts and transnational tribunals and through the interdependent effect of the their judgments.

On the other hand…

Article III of our Constitution reserves to federal courts the power to decide cases and controversies, and the U.S. Congress may not delegate to another tribunal ‘the essential attributes of judicial power.'”

So she thought foreign and international law was important and useful, but she recognized that there are serious constitutional problems and limitations on this practice. Sensible, moderate, but also analytically dissatisfying. I guess this could describe almost all of Justice O’Connor’s jurisprudential views.

WTO Watch: U.S. Complies (Sort of) with WTO Cotton Subsidy Decision

by Julian Ku

As I suggested earlier this week, the U.S. government had to announce what it was going to do about the WTO’s cotton subsidy decision by Friday, July 1. Well, the U.S. announcement is here and it is pretty mind-numbingly technical. It basically adjusts some export credit programs. The announcement was made by the U.S. Dept of Agriculture rather than the U.S. Trade Representative. Moreover, the budget cuts to the subsidies can’t be done by the U.S. Executive alone and await future congressional action. Will this satisfy Brazil? I doubt it, but we’ll see.