Archive for
September, 2005

A Critical Take on Israel and the ICJ

by Julian Ku

My former colleague and friend Wadie Said has a rather different take on the recent Israeli Supreme Court decision refusing to follow the ICJ’s advisory opinion on the legality of the “security fence” Israel has erected. My original post observed that the Israeli Supreme Court was quite deferential toward international law, but not the toward the ICJ’s interpretation of international law. I quoted more or less approvingly from the concurring opinion of the Court’s Vice-President Chesin and I think the Israeli court’s opinion was pretty reasonable. Wadie’s more critical comments follow:

Essentially, my most immediate reaction to Chesin’s remarks that were quoted from the opinion was that they were a little bit much and I’ll tell you why. Israel had a chance to appear at the ICJ and plead its case, but chose not to. Complaining now that the ICJ did not take into account adequately the security situation Israel faces is a bit rich, especially when it made a conscious decision not to appear and represent itself. The ICJ decision itself also came with several other concurring opinions, and, taken in toto, the judges definitely went to great lengths to discuss Israel’s security situation. In the United States, we would not give too much thought or consideration to a litigant that complained about the contents of a judicial opinion in a case where that litigant did not appear and was subject to a default judgment.

The second point I would make is that Israel enjoys a well-developed and quite well-regarded legal system based on the common law tradition. Additionally, its Supreme Court prides itself on being quite an enlightened and liberal body that takes very seriously notions of international and human rights law ib issuing its decisions. Where that all goes off the rails in my view is when the Supreme Court is asked to step in what are referred to as “security matters,” which are virtually everything related to the West Bank and Gaza Strip. In those case, the Israeli Supreme Court will defer almost inevitably to what the security services want and the occupied Palestinians themselves will be the losers. This is most plainly evident on the issue of torture, for example, where the court finally outlawed the use of torture against Palestinians by the security services in 1999. Of course, the decision itself was deeply flawed because it allowed for the possiblility that torture might be alright in the much-ballyhooed and semi-mythical “ticking bomb” case, but it was widely hailed as a sign that Israel was beginning to break free from the security excesses of the past. Unfortunately, the use of torture re-emerged in a widespread manner shortly after this latest intifada broke out in September 2000.

Torture came back as the norm – if it ever really disappeared at all – with a vengeance (it is applied exclusively to Palestinians and never to Israeli Jews), well before the first suicide bombing of this intifada. Therefore, the key question in my mind would be – how effective have the harsh interrogation methods in use on Palestinians since 1967 been, in light of the fact that the conflict is as violent and unresolved as ever? Alas, this question is never asked by the Israeli authorities of themselves. So, in essence, while there is much more I could write on these issues, I will stop a) because I don’t want to bore you anymore and b) because more commentary would necessarily implicate getting into the inner workings of the conflict. I have tried to avoid b) and just focus on a critique of the legal aspects of this issue, since I am normally dismissed as hopelessly biased on this point.

Case of the Month: Padilla v. Hanft

by Roger Alford

On this last day of September I would nominate Padilla v. Hanft as the most important international law case of the month. The Fourth Circuit decision, per Judge Michael Luttig (on the short list for a Supreme Court nomination), is a great example of the potential impact that international law principles may have on statutory interpretation under the so-called Charming Betsy doctrine.
The case involved the prolonged detention as an enemy combatant of the alleged “dirty bomber” Padilla, an American citizen. Padilla fought in Afghanistan against the United States, but was captured while attempting to enter the United States allegedly to perform a terrorist act on our soil. As an enemy combatant he faces detention until hostilities cease, which in the war on terror is on a date uncertain. If charged and convicted he could well face the death penalty for his treasonous conduct. The Fourth Circuit relied principally on Hamdi v. Rumsfeld, 542 U.S. 507 (2004), which in turn relied on “longstanding law-of-war principles” in its interpretation of the congressional authorizing statute (the AUMF). The Supreme Court in Hamdi concluded that Hamdi’s detention was “necessary and appropriate” within the meaning of the congressional statute because “[t]he capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by universal agreement and practice, are important incident[s] of war.” Consistent with that decision, the Fourth Circuit interpreted the AUMF as authorizing “the President to detain all those who qualify as ‘enemy combatants’ within the meaning of the laws of war, such power being universally accepted under the laws of war as necessary in order to prevent the return of combatants to the battlefield during conflict.”

International law, consistent with Charming Betsy, was imported into the statute in Hamdi, and now the plurality in Hamdi controls Padilla. The statute implicitly authorized detentions of enemy combatants consistent with the laws of war, and the Executive branch, the Fourth Circuit held, is acting consistent with those obligations. No meaningful distinction was made between an American and non-American enemy combatant. Nor was there any meaningful distinction made between the conventional war at issue in Hamdi (the ongoing war in Afghanistan) and the unconventional war at issue in Padilla (the war on terror).

Although many international law academics may resist the decision, Hamdi and Padilla both represent a win for international law in an obvious way: the laws of war were clearly interpreted to circumscribe congressional authorization for executive action. Of course, precisely what the laws of war require in an unconventional war on terror is an exceedingly difficult question. But the Charming Betsy doctrine only mandates that we endeavor to interpret ambiguous statutes consistent with the “law of nations as understood in this country.”

ICJ Watch: Costa Rica Will Sue Nicaragua

by Julian Ku

Costa Rica’s government announced today that it will apply to the ICJ to resolve a decades-long dispute with Nicaragua over navigation rights on the parts of the San Juan River that run between the two countries (UPDATE: Press release announcing the case is here. It looks like the most important precedent for this case is an opinion by U.S. President Grover Cleveland acting as an arbitrator way back in 1888). Without having any opinions on the merits of the actual dispute, this seems like another example of the limited usefulness of having a permanent international judicial institution like the ICJ to resolve these kinds of border disputes(usually between small countries of roughly equal power and status). Both countries appear to have accepted the ICJ’s compulsory jurisdiction.

On the other hand, Nicaragua may oppose the involvement of the ICJ and it seems unlikely that the two countries will agree to the “fast track” arbitration-like process that worked so well for Benin and Niger recently.

Medellin Update: The President v. Texas

by Julian Ku

I’ve been remiss in failing to keep up with the proceedings in Medellin v. Dretke, a case involving the enforceability of a judgment by the International Court of Justice that I blogged rather obsessively about here, here, and here. Luckily, Lyle Denniston of SCOTUSBlog is on the case here with a useful report on the latest proceedings, which have become a fascinating struggle over competing visions of executive power and federalism (thanks also to Marty Lederman for pointing me to this post as well as this Texas Lawyer account of the oral argument).

The battle in the original Medellin case focused on the authority of domestic U.S. courts to implement an ICJ order requiring a judicial hearing to determine the effect of a treaty violation on a foreign national’s criminal conviction and capital sentence. The battle in the subsequent Texas proceedings have focused on legal consequences of the President’s “memorandum” requiring Texas state courts to implement the ICJ’s order. Texas is taking the view that the memorandum cannot be considered as “binding” without undermining principles of constitutional federalism and separation of powers. The President appears to be taking a hard line, relying heavily on the Supreme Court’s 2003 decision in American Insurance Association v. Garamendi, which seemed to preempt California law via a statement of national policy by the executive branch.

My original view is that a Presidential implementation of the ICJ order is not ideal, but not the worst result (the worst result being the Supreme Court’s implementation of the ICJ order). Garamendi, read expansively, probably supports the President’s authority to act as he did in ordering Texas to comply with the ICJ order.

But I think a semi-legal realist like myself has to consider a couple of factors that might very well allow Texas to prevail: (1) the changing composition of the U.S. Supreme Court, with the addition of Chief Justice Roberts and Justice O’Connor’s replacement still unknown; (2) the Court’s somewhat uncertain path on the subject of foreign affairs and federalism veering back and forth between giving deference to the states and running roughshod over them.

Moreover, top-notch scholars like Ernie Young of Texas and Michael Ramsey of San Diego have filed a sophisticated brief supporting Texas by arguing for a limitation of Garamendi. I myself have joined an amicus brief* reiterating my view that the courts do not have the independent authority to implement the ICJ order. So maybe the Texas courts will decide that Texas can ignore both the ICJ order and the President’s order. But I still think that’s a long shot.

*Update: I was remiss in my first version of this post in forgetting to identify Professor Paul Stephan of UVA as the author of this terrific brief. And I have now added links to the briefs as well.

A Tribute to Chief Justice Roberts Upon His Retirement from the Court

by Roger Alford

At the dawn of John Roberts’ tenure on the Court, I find it irresistible to ponder what commentators will say about the Chief Justice at the twilight of his career. When he retires decades hence, I suspect much of the praise accorded him will be about the persona of the man. Having watched John Roberts up close and personal for years while I was an attorney at Hogan & Hartson in Washington, D.C., here is my prediction of what many will say about the persona of the potentially future great Chief Justice upon his retirement from the Court:

“Much has been and will be written about John Roberts the justice and legal mind, and I will leave much of that to others more qualified than I am on that score. Suffice it to say that I have always been somewhat amused by the continuing debate over “judicial activism” versus “judicial restraint.” This debate will rage on for years, but, for the purposes of this tribute, I write about the persona of a great Chief Justice…. He is an improbable looking villain or inspirational leader — though his critics and admirers describe him that way…. Behind that open-hearted and twinkling exterior is a mind of enormous force and determination, a mind that by most accounts has been at the forefront of molding American jurisprudence over the last three-and-a-half decades….

In Washington, where cynicism is often justified, it is quite an amazing thing to learn more and more about a “great man” and to find that he really is great, that his beliefs are genuine, that his work is his life, that his soul is a gentle one, and that he has a rare gift of perception and a tolerance of others, even when their beliefs threaten his…. From the moment of his confirmation hearings, when he was asked about his Catholicism and how it would affect his decision-making, he knew this would be an issue. And he always said that his duty as a Justice was to interpret the Constitution without regard to his own religious feelings….

In writing about Chief Justice Roberts’ impact on the Court, one must deal always with his reputation as a consensus builder, a molder of opinion, a playmaker. The Chief Justice gets quite put out when asked about this, heatedly denying it. What he does do, I think, is accurately judge his colleagues and figure out what is doable…. Chief Justice Roberts’ critics and admirers both have painted him on occasion as some sort of a political Svengali on the Court, persuading others by his charm. He hates that notion, noting that he likes to communicate with other Justices by memo when discussing business. And I don’t think it is his charm that wins cases. But it is a special kind of perceptiveness that sees the problems of a case and can translate them in a way that appeals to the critical Justice or Justices needed for a majority….

In Washington, where compromise is the name of the game and false faces are put forward as a way of life, Chief Justice Roberts is special not only for his devotion to principle, but also for his utter lack of hypocrisy. He has written for decades about the need for a wide spectrum of ideas in government, and he seems not to care one whit about the ideological views of his law clerks….

On my last visit, I’d come to record a short interview, so that we could rerun the old ones, updated, and I of course asked him if he was going to retire. “ABSOLUTELY NOT!” he yelled at me, demanding to know if I was going to quit. When I said no, he said he saw no reason that he should either. I know he did not want to retire. But he had always said that he would leave the Court if he feared he could no longer do the work. His first loyalty was to the Court as an institution.”

Sound familiar? Perhaps it should. It is a verbatim excerpt of Nina Totenberg’s tribute to Justice William Brennan upon his retirement (with the names changed of course). 104 Harv. L. Rev. 33 (1990). The substantive ends will be decidedly different, but in judicial skill as a consensus builder able to secure majorities, I predict we will see in John Roberts a conservative incarnation of William Brennan.

NAFTA Watch: Big Lumber Challenges Constitutionality of Chp. 19 Panels

by Julian Ku

I hadn’t noticed until today this recent lawsuit by the Coalition for Fair Lumber Imports, a U.S. lumber industry lobbying group, challenging the constitutionality of one part of the North American Free Trade Agreement’s Chapter 19 dispute resolution system. The complaint challenges a system of binational panels, appointed by the NAFTA secretariat and comprised of U.S., Canadian, and Mexican citizens, that holds the power to reverse judgments of the U.S. International Trade Commission and Department of Commerce. According to the complaint, these panels violate Articles I, II, III and the Due Process Clause of the U.S. Constitution.

There is a lot more to say about this lawsuit, but I have to run to catch a plane so let me be brief. The problem of the NAFTA Chapter 19 panels has long been kicked around by scholars and government lawyers (see here for an interesting summary of previous critiques), but no one seems to have gotten very upset about it until now. Interestingly, the complaint makes an argument that was used to challenge the ICJ’s decisions in Medellin that an international tribunal’s judgments cannot have direct self-executing effect in U.S. law because the decision to decide whether and how to implement such a judgment is held by the political branches.

Of course, in the case of the NAFTA tribunals, the duty to follow the international tribunals is contained in legislation passed by both the House and Senate where as in Medellin, the duty is contained in a treaty. This might matter, but then again it might not.

Human Rights Has Got Religion

by Roger Alford

Or so says secular Neo-Marxist philosopher Jürgen Habermas. In an article by Richard Wolin in this week’s issue of the Chronicle of Higher Education, discussed here, Habermas had this to say about the role of religion in the development of human rights:

… Habermas asserts that modern notions of equality and fairness are secular distillations of time-honored Judeo-Christian precepts. The “contract theory” of politics, from which our modern conception of “government by consent of the governed” derives, would be difficult to conceive apart from the Old Testament covenants. Similarly, our idea of the intrinsic worth of all persons, which underlies human rights, stems directly from the Christian ideal of the equality of all men and women in the eyes of God. Were these invaluable religious sources of morality and justice to atrophy entirely, it is doubtful whether modern societies would be able to sustain this ideal on their own.

In a recent interview Habermas aptly summarized those insights: “For the normative self-understanding of modernity, Christianity has functioned as more than just a precursor or a catalyst. Universalistic egalitarianism, from which sprang the ideals of freedom and a collective life in solidarity, the autonomous conduct of life and emancipation, the individual morality of conscience, human rights, and democracy, is the direct legacy of the Judaic ethic of justice and the Christian ethic of love.”

One of the great jurisprudential issues in international law concerns the moral basis for universal norms (slavery, piracy, genocide, etc.). I have often found it odd that international lawyers and academics maintain non-consensual international human rights obligations (i.e., preemptory norms or jus cogens) without conceding the non-positivist aspect of their position. Article 53 of the Vienna Convention on the Law of Treaties pointedly avoids this deeper question, simply defining such an obligation as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.”

Which is another way of saying that we the international community require you the individual state to obey this obligation even if you would otherwise choose not to. Which begs the question of on what basis does the international community rank a particular norm (but not others) so high that a non-consenting state must conform to it.

Whereas the Dutch theologian Hugo Grotius would happily contend that international law is derived from immutable natural laws of God, the positivist tradition of Lassa Oppenheim would argue that “only a positive law of nations can be a branch of the science of law.” Today it would seem we unwittingly are witnessing in international human rights law a synthesis between the Grotian thesis of natural law international obligations and the antithesis of the international positivists. Consensual international obligations follow in the positivist tradition, while non-consensual universal preemptory norms hearken back to the natural law roots of international law.

Perhaps this deeper point is avoided because, as Habermas suggests (echoing John Rawls), to gain a reasonable chance of public acceptance, “religious reasons must ultimately be capable of being translated into secular forms of argumentation.” The secular version of universal human rights norms has succeeded in garnering widespread (near global) public acceptance, whereas it might have had much greater difficulty if it were clothed in religious justification. The roots may be religious, but it is the secular tree and branch that we see and nurture.

Opening the Floodgates to Treaty Litigation

by Julian Ku

International lawyers have long lamented that it is nearly impossible to get courts to apply and enforce treaties, especially to assess damages against government officials. All of this is about to change.

A federal appeals court has held that the Vienna Convention on Consular Relations (VCCR) creates a private right of action. I believe this marks the first time that a U.S. court has found that any provision of the VCCR is judicially enforceable. While the decision does not necessarily affect other courts’ consideration of the Medellin issue — the judicial enforceability of an ICJ interpretation of the VCCR — it may have some broad impact. It may also open the door to a wave of lawsuits alleging violations of various treaties of the United Sates.

In Jogi v. Voges, a panel of the U.S. Court of Appeals for the Seventh Circuit (in Chicago) found that the VCCR can serve as the basis for a suit pursuant to the Alien Tort Statute (28 U.S.C. 1350) which permits aliens to bring lawsuits in “violation of the law of nations or a treaty of the United States).” Almost every lawsuit brought under the ATS has alleged a violation of the law of nations rather than a violation of a treaty because very few treaties of the U.S. have been interpreted to create private rights of action or to be self-executing.

The panel’s decision is certainly plausible. The U.S. government has conceded that the VCCR is “self-executing,” meaning that it does not require any further legislation to implement its provisions. Moreover, the VCCR and the U.S. government have indicated that the VCCR creates individual rights. In such circumstances, it is not a long stretch to then find that the ATS, which the Supreme Court has held creates a cause of action for violations of the law of nations, also creates a cause of action for violations of a self-executing treaty that also creates an individual right.

Bottom line:

(1) Under this holding, any alien who has been arrested by U.S, state, or local officials without being notified of his or her VCCR rights to contact his or her consulate can bring a suit under the ATS. Since thousands of aliens are arrested by state and local officials every year, maybe we should add a new line to the “Miranda” card that police read to everyone, just in case. Moreover, there are lots of other treaties, like the Geneva Conventions or the International Covenant for Civil and Political Rights, that could also serve as the basis for future lawsuits.

(2) The 7th Circuit’s decision here mildly helps international lawyers seeking ways to enforce treaties in U.S. Courts. Smart international lawyers have argued that general provisions like the ATS and the habeas jurisdictional statute, which grant federal courts jurisdiction over treaty violations, authorize federal courts to hear lawsuits enforcing treaty rights, even if the treaty itself is not self-executing or does not create a private right of action. This decision does not go so far, but it is certainly sympathetic to such an approach, which is being tried in lawsuits by detainees in Guantanamo Bay.

(3) The 7th Circuit also telegraphed its view that ICJ interpretations of the VCCR should be treated as binding “the United States” and, presumably, U.S. courts interpreting the VCCR. If the current Medellin litigation does not make it back to the Supreme Court, international lawyers know where to file their next VCCR suit if they want to create a circuit split.

Private England Goes to Jail

by Roger Alford

Lynndie England is headed for jail for her abuse of prisoners at Abu Ghraib. Displaying enlarged photos of the abuse, the prosecution emphasized “What soldier wouldn’t know that that’s illegal? …She is enjoying, she is participating, all for her own sick humor.” Although England is one of the most infamous of the torturers, the Army reportedly has opened more than 400 inquiries into detainee abuse in Iraq and Afghanistan and punished 230 enlisted soldiers and officers.

I haven’t met a single American who is not sickened by what England and others like her did to those Iraqi prisoners and more generally to the cause of freedom in Iraq. The abuse undermined the moral arguments for why we were there. The convictions underscore the moral arguments for why we are different. I doubt the story of their punishment gets the worldwide coverage it deserves.

Should Saddam Hussein Face the Death Penalty?

by Roger Alford

Fascinating discussion here on whether Saddam Hussein should face the death penalty. The traditional arguments you might expect for and against the death penalty are reframed in the context of the pending trial of Hussein. Which State is urging Iraq to refrain from imposing the death penalty? The United States. Which political leader in Iraq temporarily suspended the death penalty following the toppling of Hussein? Paul Bremer. In turning Hussein over for trial, is Britain under conflicting obligations under human rights law and humanitarian law? Possibly. Are there special circumstances that might justify the death penalty for a deposed leader of a country who is a génocidaire? Yes. Read it.

U.S. v. the World, Again – The U.N. Convention on Cultural Diversity

by Julian Ku

Sometimes, the U.S. government seems at odds with all of its allies. The most recent example is the battle over the Convention for the Protection of the Diversity of Cultural Contents and Artistic Expressions sponsored by UNESCO, the U.N. Educational, Scientific and Cultural Organization. U.S. Ambassador to UNESCO Louise Oliver criticizes the draft treaty, and UNESCO in general, for failing to deal seriously with the issues in the treaty:

The preliminary text addresses a number of very complex issues. They involve culture, development, intellectual property rights, trade, and most important of all, human rights. Have we discussed all of these issues thoroughly? Is this preliminary text coherent, with clearly defined obligations and objectives? Are we convinced that there are no potentially negative consequences that may result from the provisions of this convention? For us the answers to these questions unfortunately are no, no, and no.

Interestingly, Ambassador Oliver strikes a broader theme: UNESCO should stop sponsoring new treaties and concentrate more on strengthening its existing programs. (this might be true of the U.N. as a whole). In other words, the world needs less international law and better international governance.

This is an interesting critique, but one that seems at odds with a simplistic rational choice analysis of an international agency like UNESCO. After all, UNESCO doesn’t appear to be doing a whole lot unless they are sponsoring new treaties and conventions.

Moreover, UNESCO has been studying this for quite some time. They’ve had lots of meetings, they’ve heard reports from lots of experts. It’s unclear what exactly the U.S. wants to talk about at the next meetings? At least it is hard to tell.

I think the U.S. has lots of substantive agreements here. UNESCO’s staff, its independent experts, and the very few people who have been paying attention to this convention have taken the agenda away from the U.S. And it might be a little too late to stop the momentum.

Roger Alford Joins Opinio Juris

by Julian Ku

Peggy, Chris, and I are very pleased to announce that Professor Roger Alford of Pepperdine University will be joining Opinio Juris on a permanent basis. In addition to being a top-notch scholar, Roger was also a guest blogger here over the summer, contributing a number of fascinating posts from India. We are thrilled to have him as a permanent blogger.

Welcome to the team, Roger!

Why A Little Impunity Might Be Necessary: Eric Posner on Amnesty for Baathists

by Julian Ku

Professor Eric Posner has a typically provocative piece in the NYT arguing that some kind of political accommodation with the former Baathists in Iraq will have to be made before peace can come to Iraq. This means, as he notes, that while Saddam Hussein and his associates could be convicted of war crimes, the guilt cannot fall on every soldier and government official who carried out Saddam’s order. Posner does not celebrate this result, but he does think it will be a political necessity. Perhaps. But will this kind of realpolitik undermine one of the rationales for the invasion in the first place? That is to say, is it politically plausible for the U.S. government to make a deal with the former Baathists if the war is justified as a way to eliminate the Baathists?

New Saddam Trial Blog

by Julian Ku

The Cox International Center at Case Western is launching “Grotian Moment: The Saddam Trial Blog” which will bring together some of the leading scholars of international criminal law to comment on the upcoming trial of Saddam Hussein. Lots of international law bigwigs will be participating and they have already had quite a few interesting posts on topics such as the legality and legitimacy of the trial and whether the death penalty should be applied.

This could be a great blog! But not as great as this one, of course…

American Astronauts, Russian Rockets, and Iranian Nukes

by Chris Borgen

What do American astronauts, Russian rockets, and the Iranian nuclear program have in common? More than I ever realized.

As it happens, the Senate approved a bill this week that would allow NASA to purchase Russian Soyuz space vehicles that could be used as a stop-gap between the end of the operational life of the shuttle fleet and the debut of the new Crew Exploration Vehicle (CEV) that is being developed for the US spapce program.

So what about the Iranian nuclear program? The catch to the US/Russian deal was a clause in the Iran Nonproliferation Act of 2000 that would prevent the purchase by the US of hardware for manned space missions from the Russians while the Russians continued to supply Iran with nuclear reactor technology and/or weapons development tech. The bill approved earlier this week included a special waiver to allow this deal. For more information, there’s a Congressional Research Service study the effects of the Iran Nonproliferation Act on the International Space Station available here.

Now for the next hurdle… if we fly these vehicles, will they still be called Soyuz capsules?

Israel’s High Court Embraces International Law – But Not the ICJ

by Julian Ku

Israel has had a long and often unhappy relationship with international institutions, especially the U.N. Moreover, Israel’s struggle with the Palestinians and the Arab states has also given it good reasons to be suspicious of international law, especially the kind of international law used to restrain its military power. So it is not exactly surprising to see this recent decision from the Israeli High Court of Justice largely disagreeing with the conclusions of the ICJ’s 2004 Advisory Opinion, which found the “security fence” dividing Israel and Israeli settlements from Palestinian-controlled areas constituted a violation of international law.

On the other hand, the Israeli High Court decision is also remarkable in its assumption that most forms of international law, especially the customary international law governing armed conflict and international human rights treaties, has been incorporated into Israeli law and may be applied to constrain the activities of the Israeli government.

In fact, the Israeli High Court’s judgment differed from the ICJ’s judgment only in that it applied the law differently, but not because it disagreed that the various forms of international law applied. Both courts agreed that “the legality of the wall/fence route depends upon an appropriate balancing between security needs on the one hand and the impingement upon the rights of the local residents on the other.” The reason for the difference in conclusions between the Israeli High Court and the ICJ flowed from different factual findings, e.g. that the security needs were greater than the ICJ realized.

In the end, the Israeli High Court did require the Israel government to reconsider the line as it applied to five villages, which the villages’ lawyer immediately declared a huge victory. But for me, the most interesting opinion in the case is the concurring opinion by Vice-President of the Court Chesin, where he expressed grave disappointment with the shoddy and political nature of the ICJ’s advisory opinion in this case.

International law has undergone many welcome revolutionary changes in recent decades. I remember that 50 years ago – when I was a young student at the Faculty of Law of the Hebrew University of Jerusalem – the subject of Public International Law (as opposed to Private International Law) was a negligible and peripheral subject (even though it was taught as a required course). Public International Law was not seen by us – we the students – as worthy of the title “law”, and the institutions of the international community, including the International Court of Justice, received the same treatment. The years passed, and public international law got stronger and began to stand on its own two feet as a legal system worthy of the title “law”. That is the case, at least, as far as certain areas or certain states on the face of the globe are concerned. It is fortunate that public international law has developed in that way, although the road is long before it will turn into a legal system of full standing; as a legal system whose norms can be enforced against those who violate them. In the same context, we should know and remember that the International Court of Justice at the Hague, even when asked to write an Advisory Opinion, is still a court. Indeed, when the ICJ sits in judgment as the giver of an advisory opinion, the proceedings before it are not regular adversary proceedings, and its decision does not have immediate operative force – as opposed to the decision of a regular court. However, the way in which the ICJ writes its opinion is the way of a court; the proceedings of the ICJ are, in principle, like the proceedings of a court; and the judges sitting in judgment don the robes of a judge in the way familiar to us from regular courts. Take these procedural distinguishing marks away from the ICJ, and you have taken away its spirit as a court. For we have no lack of political forums.

3. I read the majority opinion of the International Court of Justice at the Hague, and, unfortunately, I could not discover those distinguishing marks which turn a document into a legal opinion or a judgment of a court. . . .

. . . the factual basis upon which the ICJ built its opinion is a ramshackle one. Some will say that the judgment has no worthy factual basis whatsoever. The ICJ reached findings of fact on the basis of general statements of opinion; its findings are general and unexplained; and it seems that it is not right to base a judgment, whether regarding an issue of little or great importance and value, upon findings such as those upon which the ICJ based its judgment. The generality and lack of explanation which characterize the factual aspect of the opinion are not among the distinguishing marks worthy of appearing in a legal opinion or a judgment. Moreover, generality and lack of explanation infuse the opinion with an emotional element, which is heaped on to an extent unworthy of a legal opinion. I might add that in this way, the opinion was colored by a political hue, which legal decision does best to distance itself from, to the extent possible. And if all that is not enough, there is the ICJ’s almost complete ignoring of the horrible terrorism and security problems which have plagued Israel – a silence that the reader cannot help noticing – a foreign and strange silence. . . .

. . . I am sorry, but the decision of the ICJ cannot light my path. Its light is too dim for me to guide myself by it to law, truth, and justice in the way a judge does, as I learned from those who preceded me and from my father’s household.

Transnational Tribunals and Domestic Societies

by Chris Borgen

Transnational tribunals—mechanisms that allow sub-national actors such as individuals and companies to sue States for alleged infringements of their rights—are not only proliferating in number, they also have larger caseloads covering more substantive areas than ever before. I have just posted to SSRN an article assessing whether and how such tribunals cause normative change in the domestic legal and political systems of member states. The full abstract and link to the article download are available here.

Many scholars recently have focused on the issue of international tribunal effectiveness—essentially whether States comply with adverse rulings. I ask whether the repeated use of transnational tribunals, ranging from investor-State dispute resolution to human rights litigation before courts like the European Court of Human Rights, may cause a change in the beliefs and habits of domestic societies.

I conclude that instead of normative transmission being simply a form of legal imperialism by Western democracies, as some have argued, there are actually many different constituencies building alliances across state and class lines in attempts to forward their claims both domestically and internationally. All of these constituencies—corporate interests, human rights activists, environmentalists, and indigenous peoples—access and use the tools of globalization via the means of transnational legal process, such as adjudication before transnational tribunals. This is neither the North versus the South, nor the global versus the local, but rather the struggle of communities that transcend state borders, have competing conceptions of the good, and use the tools of globalization. Their common use of similar legal mechanisms leads to a “hegemony of process” in which certain outcomes are favored by certain procedural structures.

The North Korea Agreement – The Usefulness of Non-Legal Agreements

by Julian Ku

Here is the U.S. Govt description of the recent deal where North Korea sort of agreed to give up its nuclear weapons program. Who knows if this deal will stick? But one thing to keep in mind from an international lawyer point of view: the agreement has some chance of success, precisely because it is probably not a treaty or binding agreement under international law. Rather, it is a non-binding understanding that allows each party to say it is agreeing, but seems to leave many details for later. It does refer to traditional sources of international law, e.g. previous treaties and the U.N. Charter, as a basis for future action. But the agreement itself doesn’t appear to bind anyone to do anything, as a legal matter. I suppose this is an example of the success (maybe) of diplomacy rather than international law.

For the cause of peace and stability on the Korean Peninsula and in Northeast Asia at large, the Six Parties held, in the spirit of mutual respect and equality, serious and practical talks concerning the denuclearization of the Korean Peninsula on the basis of the common understanding of the previous three rounds of talks, and agreed, in this context, to the following:

1. The Six Parties unanimously reaffirmed that the goal of the Six-Party Talks is the verifiable denuclearization of the Korean Peninsula in a peaceful manner.

The DPRK committed to abandoning all nuclear weapons and existing nuclear programs and returning, at an early date, to the Treaty on the Non-Proliferation of Nuclear Weapons and to IAEA safeguards.

The United States affirmed that it has no nuclear weapons on the Korean Peninsula and has no intention to attack or invade the DPRK with nuclear or conventional weapons.

The ROK reaffirmed its commitment not to receive or deploy nuclear weapons in accordance with the 1992 Joint Declaration of the Denuclearization of the Korean Peninsula, while affirming that there exist no nuclear weapons within its territory.

The 1992 Joint Declaration of the Denuclearization of the Korean Peninsula should be observed and implemented.

The DPRK stated that it has the right to peaceful uses of nuclear energy. The other parties expressed their respect and agreed to discuss, at an appropriate time, the subject of the provision of light water reactor to the DPRK.

2. The Six Parties undertook, in their relations, to abide by the purposes and principles of the Charter of the United Nations and recognized norms of international relations.

The DPRK and the United States undertook to respect each other’s sovereignty, exist peacefully together, and take steps to normalize their relations subject to their respective bilateral policies.

The DPRK and Japan undertook to take steps to normalize their relations in accordance with the Pyongyang Declaration, on the basis of the settlement of unfortunate past and the outstanding issues of concern.

3. The Six Parties undertook to promote economic cooperation in the fields of energy, trade and investment, bilaterally and/or multilaterally.

China, Japan, ROK, Russia and the US stated their willingness to provide energy assistance to the DPRK.

The ROK reaffirmed its proposal of July 12th 2005 concerning the provision of 2 million kilowatts of electric power to the DPRK.

4. The Six Parties committed to joint efforts for lasting peace and stability in Northeast Asia.
The directly related parties will negotiate a permanent peace regime on the Korean Peninsula at an appropriate separate forum.

The Six Parties agreed to explore ways and means for promoting security cooperation in Northeast Asia.

5. The Six Parties agreed to take coordinated steps to implement the aforementioned consensus in a phased manner in line with the principle of “commitment for commitment, action for action”.

6. The Six Parties agreed to hold the Fifth Round of the Six-Party Talks in Beijing in early November 2005 at a date to be determined through consultations.

The Milosevic Trial: An Inside View

by Peggy McGuinness

Over at Slate, Julian Mortenson has submitted a series of dispatches from the Slobadan Milosevic trial at the ICTY which offer an up-close-and-personal angle on the 3-plus-years old prosecution of the notorious Serb leader on a series of war crimes charges. International prosecution has an important part to play in accountability for past crimes, for creating a forum for victims to tell their stories, and to provide an authoritative historical account of the atrocities. But I have long believed that its deterrance value is overstated. Mortenson’s account reminds us of the potential downside of long, protracted and much-delayed trials of aging thugs. This excerpt on the genocide at Srebrenica in 1995 is a chilling example of the way in which the formalism of the trial allows Milosevic to legitimate his own position (that the tribunal is illegal) and score political points:

When the testimony turns to Srebrenica, the good-natured joshing ends. It’s a settled matter at the tribunal that the mass murder of more than 7,000 unarmed Bosnian Muslims at the Srebrenica U.N. “safe haven” constituted genocide. Earlier this year, the new release of sickening video clips of the Srebrenica executions jolted The Hague and Serbia—and, many court observers thought, Milosevic himself. So this is a minefield for both men. And while they understate the scale of the killings (Seselj is skeptical that even as many as 1,200 were killed, because “it was impossible for this small group of soldiers to kill so many men by individual shooting”), neither Milosevic nor Seselj deny that what happened was an epic atrocity: Seselj calls it “a great shame on the Serbian people.” But, as they tell it, it certainly wasn’t a top-down crime: “Can anyone claim,” Milosevic asks, “that the authorities in Yugoslavia tried to hush up the crime in Srebrenica?” “That claim is untenable,” Seselj snaps, “We thought it was our legal, political, and moral obligation that the crime of executing Muslim prisoners of war in Srebrenica should not go unpunished.”

Milosevic’s examination is really quite well done. As soon as the question of Srebrenica arose, his mood turned somber, and his gestures became mild, almost delicate, giving off a vaguely scholarly vibe. Whether affected or in earnest, it’s good courtroom theater. Gravely denying any connection between the top Serbian leadership and the events at Srebrenica, Milosevic gets Seselj to repeatedly refer in amazement to the mere five-year prison sentence the tribunal imposed on Drazen Erdemovic, who admitted to personally killing some 70 helpless prisoners at Srebrenica. (They glide over the trial court’s finding that Erdemovic participated only in the face of death threats from his superiors.) It’s all part of Milosevic’s constant chipping away at what he calls an illegitimate, illegal institution. Does it matter in any legal sense whether Erdemovic got a “fitting” punishment for his crimes? Of course not. But rhetorically it’s an effective buttress for his overriding claim that he is the only person in this courtroom with real moral authority.

To a first-time visitor, that would probably be the most surprising thing about the trial. Early reports left the impression that Milosevic wasn’t mounting a serious legal defense against the crimes he is charged with but was instead using his trial as a platform to make a political case against the Western powers most responsible for his fall. It’s been my experience that he’s actually having it both ways. To the extent he can, he’s chipping away at the prosecution’s legal claims while taking every opportunity to score political points (fair or not) for the Serb audience back home—and for history. It is an impressive balancing act.

Althouse on Foreign Sources in Court Opinons: No big deal

by Peggy McGuinness

Ann Althouse has a reasonable view of citation to foreign law in constitutional cases in her op-ed in today’s NYTimes. It’s easy to agree with someone who shares one’s own views.

What is Bolton Up To? Not Much.

by Julian Ku

Here is a sympathetic profile in the WSJ of newly-installed U.N. Ambassador John Bolton’s activities during the latest U.N. reform effort. Perhaps I am wrong when I argued here that U.N. ambassadors, and ambassadors in general don’t matter very much. But then again, this profile doesn’t really suggest Bolton has been able to do very much, one way or the other, during the supposedly-crucial U.N. negotiations in recent months.

Which makes me wonder again about all the noise and thunder surrounding his nomination and recess appointment. What was the point of all of that? Has Bolton done anything to radically undermine the U.N.? Or to stand up to the U.N. in the way conservatives wanted? Not that I can tell. The moment where Bolton might have made the greatest difference in U.S. relations with the U.N. has pretty much passed. And barely anyone noticed.

Academic Symposia – Is Blogging the Future?

by Julian Ku

Today I will be participating in an “online symposium” hosted here by the New York University Journal of Law and Liberty (my opening statement is here). Four leading scholars (or three depending on whether I can call myself “leading”), will blog about Hamdan v. Rumsfeld, a case involving a challenge to the legality of President Bush’s military commissions (which I discussed here). The case is important in its own right, but the format of our discussion is important as well. Why bother going to symposiums when you can just blog? We’ll see how things go, but I think it is an interesting idea.

As for more traditional symposia, I’ve recently posted two symposium essays to SSRN. The first, entitled The Third Wave: The Alien Tort Statute and the War on Terrorism, is coming out in the Emory International Law Review. The second, Structural Conflicts in the Interpretation of Customary International Law, is forthcoming in the Santa Clara Law Review. Both of these essays are quite short by law review standards so I hope some of our non-academic readers will take a look. If that is still too long, then it sounds like the online symposia format is for you!

America’s Friends and Enemies – The Latest Poll Results

by Julian Ku

As I noted previously, a recent poll showed that many Europeans had a more favorable view of China than the United States, a somewhat surprising (and disturbing) result. A recent poll of the U.S. public shows no such friendliness toward China – quite the opposite. As the WSJ reports:

Nearly three-quarters of Americans now view Britain as an ally — far more than for any other country — down from the 80% who considered Britain a close ally in 2001, after the Sept. 11 attacks, but higher than Britain’s ranking throughout the 1990s.

At 48%, Canada is seen as the next closest ally, though perceptions of Canada as an ally have been slipping in recent years from a high of 73% in 2001.

France, which for many years was among the U.S.’s closest allies, has been sharply lower in the ally rankings since 2001, when 41% saw the nation as an ally; this year it ranks 16th on the list, with only 17% seeing it as an ally. And while Germany, another long-time ally ranks 10th this year, nearly a quarter of Americans still think of Germany as less than friendly.

The article doesn’t note some weird results at the other end of the spectrum. China is the country least likely to be seen as a close ally, but it is Pakistan that tops the list with 18% viewing that country as “unfriendly or an enemy”. China comes in second with 15% viewing China as an “enemy” but this is indistinguishable from South Korea’s 14%. Thus, the two out of the top three “unfriendly/enemy” countries in this list are, formally, close allies. Indeed, the U.S. even has a mutual defense treaty with South Korea and 50,000 troops stationed there. Very odd, indeed.

Judge Roberts and the Treaty Power

by Julian Ku

Listening to the Roberts hearing is amusing for a few minutes, but only the true Supreme Court geeks can stand it for more than an hour. Luckily, in the age of the internet, we can skip the hearings and simply go straight to the transcript portions that interest us. So here goes: Senator Feinstein of California asked Judge Roberts a potentially important question about whether he accepted the status of treaties as supreme law of the land. Here is the exchange:

FEINSTEIN: Let me turn to something else that Senator Leahy asked a number of questions on, and that’s the Constitution and executive power. I’m looking for the section, but the Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?

ROBERTS: : Right.

FEINSTEIN: Which gives it the total weight of law. Can a president, then, decide not to follow a treaty?

ROBERTS: : As a general matter, the answer is no. The treaty power, as long as it’s ratified according to the requirements in the Constitution, by two-thirds of the Senate, you’re perfectly correct, it is under the supremacy clause the supreme law of the land. Now, I don’t know if there are particular arguments about executive authority in that area with which I’m not familiar, and I don’t mean to state categorically, but my general understanding is that treaties that are ratified — and of course we have treaties that aren’t ratified and executive agreements that aren’t submitted for ratification and so on — but the treaty that’s ratified by the Senate under the supremacy clause is part of the supreme law of the land.

FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?

ROBERTS: : Yes. Now, there are questions, of course, that arise under those — and have arisen under those — about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated.

But that’s an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.

This seems fairly bland stuff. After all, it is undisputed that treaties are the law of the land (And therefore U.S. law) under the Constitution. But as Roberts surely knows, many treaties are “non-self-executing” under U.S. law meaning that, in most cases, private parties can’t sue in court to enforce those treaties against the government. In fact, he joined the opinion in Hamdan v. Rumsfeld holding that the Geneva Conventions are non-self-executing. And he probably knows that the Convention against Torture was ratified on the condition that it also be treated as non-self executing. So while those treaties are “binding” as a general matter, Roberts probably also believes that they cannot be judicially enforced.

Unfortunately, nothing in his answer to Senator Feinstein makes this complexity about the status of treaties in U.S. law clear. So if he is confirmed, she is probably in for a big surprise somewhere down the road…

The U.S., the U.N., and Foreign Aid

by Chris Borgen

In an earlier post I had on UN reform, I noted that the US is losing public relations points for not agreeing to target 0.7% of GDP (as opposed to the current 0.16%) towards overseas development assistance. George Morris commented:

This argument is a total red-herring. While these “poorer” countries may, in theory, give more as a percentage of overall GDP, when non-U.S. governmental charitable aid is totaled up the U.S., per capita, winds up giving substantially more than virtually every country year-in and year-out. That we don’t want to sign on to the EU’s fuzzy-headed method to send vast set amounts of our GDP down the governmental and UN sluiceway is both understandable and hardly a mark of a flinty, cold-hearted cheapskate.

While the development assistance issue is not central to the UN reform topic, it is central to the Millennium Development Goals and to how the US is perceived more generally. (For a good collection of overseas development assistance stats gathered from the OECD and other sources, see this.)

First of all, this argument is not at all a red herring. I point out that the issue here is percentage of GDP and, of course, a country with a larger GDP can give a larger absolute amount even though that is a smaller percentage of their GDP.

But that is not the issue. There are two factors that prevent the “red herring” argument from persuading me.

First, given the incredible levels of poverty around the world is it actually a bad idea for the US to commit to giving the equivalent of 0.7% of its GDP to poverty alleviation by the year 2015? Note that this goal is not some new idea only forwarded by the EU; rather it is a central part of the Millennium Development Goals that the US has supported. There is now a question as to whether the US had ever objected to this number prior to the last week or two.

Regardless as to whether it did, the problem, in the eyes of countries not as well off as us (read: just about every other country), is that they are willing to devote more of their resources to address global poverty than we are. Of course, global poverty will be solved by neither 0.1% nor by 0.7% as a benchmark. What is needed is a concerted effort to attack the problem with the seriousness that it requires. Consequently, simply saying “our total is more than theirs” is not an adequate response if we could give a significantly larger amount without harm to ourselves. If all the countries of the EU, for example, can commit to giving 0.7%, why can’t we?

A second problem with the “red herring” argument is that it misses the issue of who the current aid goes to. Much of U.S. nonmilitary foreign assistance is actually related to national security concerns or military partnerships. Consider, for example, the top ten recipients of US nonmilitary aid in 2002-2003:

Democratic Republic of the Congo

As I said in my post, as a security matter I understand prioritizing these countries, but as a matter of poverty alleviation it doesn’t really address the key problems. If we want to keep countries like this as our main aid recipients, fine, but let’s at least have a real discussion about increasing the size of the pie so truly poor states can get a slightly larger slice than they do now. In other words, keep these funding priorities but increase our total commitment to 0.7%. Anyway, poverty alleviation makes sense for national security reasons. So yes, while we do give a larger absolute amount in foreign aid, it is not being targeted as it should if we are actually concerned about addressing poverty.

A couple of closing thoughts: I haven’t heard anyone else calling 0.7% “a vast amount” of GDP. Foreign aid is (and, even at the o.7% GDP benchmark, would still be) a small part of the US budget. Moreover, that money doesn’t have to go to the UN or disappear due to recipient mismanagement. Rather, the 0.7% is simply a target for development aid in general. We can give it to whom we want and under whatever conditions we think best, assuming they forward the goal of poverty alleviation.

That is not fuzzy-headed. That is smart.

So… why not commit to devoting 0.7% of GDP to overseas development aid by the year 2015?

Judge Roberts Hearing: Use of Foreign Law in Constitutional Cases

by Peggy McGuinness

I am back on the blog and wanted to post this exchange between Roberts and Senator Kyl (R. Ariz.) at today’s hearing of Judge Roberts. (For background on the contours of the debate, see Jeff Toobin’s New Yorker piece (via Scotusblog) on Justice Kennedy’s “cosmopolitanism” and the use of foreign law).

KYL: It’s an American Constitution, not a European or an African or an Asian one. And its meaning, it seems to me, by definition, cannot be determined by reference to foreign law. I also think it would put us on a dangerous path by trying to pick and choose among those foreign laws that we liked or didn’t like. For example, many nations have a weak protection for freedom to participate in or practice one’s religion. Iran and some other Middle Eastern nations come immediately to mind. But even a modern Western nation like France has placed restrictions on religious symbols in the public square. That would be highly unlikely to pass muster in U.S. courts. Should we look to France to tell us what the free exercise clause means, for example? Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom. Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There’s a lot more to say on the subject. But I wanted to hear from you. So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we’re not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.

ROBERTS: Well, I don’t want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views.
And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn’t about interpreting treaties or foreign contracts but as precedent on the meaning of American law. The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate. The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.

ROBERTS: If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he’s playing a role in shaping the law that binds the people in this country. I think that’s a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn’t confine judges. It doesn’t limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They’re there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent — because they’re finding precedent in foreign law — and use that to determine the meaning of the Constitution. And I think that’s a misuse of precedent, not a correct use of precedent.

U.N. Reform: From Recrimination to Common Interests

by Chris Borgen

I think Julian might be reading more into my post than what was written. I never said (nor even meant to imply that) the US position is unreasonable. To the contrary, I think its attempted reform of the Human Rights Commission is a good idea. I noted that that reform effort was being blocked by China, Russia, and a host of others.

I also noted that reforms concerning the Secretariat are politically difficult at the moment, given the Volcker Report. Nonetheless, at some point, states are going to have to seriously consider giving the Secretariat more leeway to act without being politically tied to the General Assembly. As far as I know, the US is not against this idea in principle but has focused on some specific issues that have arisen. That is why I concluded that, given the current mood of the member states in the wake of the oil-for-food debacle, the probable best-case scenario at this juncture is the adoption of better financial oversight standards and the construction of better oversight mechanisms. This, in turn, may lead the way to deeper reform in the future.

And, as for increasing foreign aid, I said that that was largely a question of politics. I think, as a general matter, it would be good development economics to embrace a policy that would increase assistance to lesser developed countries (at the moment there is a net capital outflow from LDC’s due to debt repayment, though that is being amelioriated with debt forgiveness) but, at the end of the day, some compromise position between the US view and the EU view is likely. The EU and others want to see more money going to LDCs. The US wants to include a good governance requirement. These views are not mutually exclusive; rather, they can be mutually reinforcing. But we still need to see what the US will be willing to commit to as a minimum of assistance.

(On this account, note that even given the increase in US aid that was mentioned in the WSJ piece, we are still among the lowest donors as a percentage of our GDP. And the majority of non-military assistance still goes to relatively few countries and primarily those where we have a military stake as opposed to those that might have the most bone-crushing poverty. I understand that as a matter of security policy but let us not kid ourselves that that is the most effective route to decreasing poverty.)

In my summary I explained that the UN bureaucrats have to be realistic about the managerial crisis that they have brought upon themselves. At the same time the states that are interested in the UN succeeding in its tasks need to be realistic about the tools and authorities that it will need to be able to do that. The problem is not that the US is against reform; as I’ve said the US is in favor of many of the best reforms on the table. The problem is that the UN member states as a whole are not showing the political will and coordination to make real reform–of any kind–happen. That is the great loss.

This is not about US partisan arguments. This is not (only) about the different interests between the East and the West or the North and the South on specific issues. This is about coalition building to get key proposals passed, even if some countries don’t like them (like the Human Rights Council). This is about getting past the anger that is still felt by many states (including the US) about the lead-up to the war in Iraq (and the UN’s role) or about oil-for-food and focus on today’s problems at the UN. It’s time to get past recrimination and move on to coordination towards getting the reform done. We knew this was going to be hard. But it is still worth doing.

If the promise of reform evaporates, it is not because of the UN. It is because the member states could not muster the political will or the political leadership to get it done.

More on U.N. Reform: A Critical Perspective

by Julian Ku

Following up on Chris’ post on the opening of the UN General Assembly this week and the U.N. reform agenda, it might be useful to check out some defenses of what the U.S. is seeking in the UN Reform process in the WSJ here and in the NYT here. The U.S. positions seem fairly reasonable, but I leave to Chris or Peggy to explain to me why they aren’t.

This is obviously a give or take process so it will be hard to tell what is going to be accomplished in the end of the day. Given the U.N.’s track record, probably nothing. Still, we can count on one thing: Traffic in Midtown is almost certainly going to be a disaster for the next few days.

So You Say You Want an Evolution: The Stakes of U.N. Reform

by Chris Borgen

It seems like everyone wants the UN to change, to evolve, to reform. The trick is getting consensus on what such reform should look like. World leaders will have their chance this week to hammer something out at the plenary meeting of heads of state marking the 60thanniversary of the UN. (See also the State Department site on the Summit.) This is shaping up to be possibly the most important anniversary week for the U.N. since its founding. Numerous reform measures and initiatives are coming to a head and, coupled with recent scandals (oil-for-food), challenges (the tsunami), and divisiveness (the Iraq War), this will be a crucial time for the organization.

The main issues on the agenda of the UN are (1) Security Council reform; (2) managerial reform; (3) replacing the Human Rights Commission with a more effective body and (4) spurring foreign aid to assist development. What may be expected on these issues has been the subject of much prognostication in recent months. The newest prediction: don’t expect much. (See also this from Reuters and also what the folks at Democracy Arsenal have to say here, here, and here.) Here’s a quick summary of the state of play:

Security Council Reform. This is dead in the water. As the Voice of America reports:

Secretary of State Condoleezza Rice’s senior adviser on reform, Shirin Tahir-Kheli effectively put the issue to rest in a speech to the General Assembly in July.

“Let me be as clear as possible. The United States does not think any proposal to expand the Security Council, including one based on our own ideas, should be voted on at this stage,” said Shirin Tahir-Kheli.

This is a topic that will likely start moving again in the near future: too many rising powers (Germany, Japan, India, Brazil) have too much at stake. But whether one of the various reform measures (rotating “semi-permanent” seats, an EU seat, etc.) actually passes is another matter entirely.

Managerial Reform. On this account, the freshly-minted Volcker Committee Report will give the delegates much to discuss. On the one hand, there is a need for the Secretariat to have greater leeway to hire/fire/enact/change to allow for a more rapidly responsive organization. On the other hand, the Secretariat’s record on oversight is not good (see, Oil-for-Food) and it is unlikely that that report will cause many states to want to give more power to the UN bureaucracy. In any case, though, at some point the states will need to come to grips with the fact that in order for the UN to work efficiently, then the chief executive officer of the UN will need to have some ability to actually act like a chief executive. And the UN’s Secretariat will have to realize that, until the dispose of the power that they do have in a responsible fashion, they are unlikely to be given more. For now reform of methods of oversight and a house-cleaning may be the best we can hope for.

The Human Rights Commission. The Commission in mired with politics and hamstrung by having no real power beyond its attempts to shame bad actors. The US, EU, and other states have sought real reform by replacing the Commission, which only sits periodically and has members chosen by region, with a permanent Human Rights Council that sits year-round and would have members chosen by a two-thirds vote of the General Assembly. The idea is that such a Council would be able to put more constant attention on problems and, due to the new election procedures, would be less likely to have members from states that are bad actors. So Libyan representiative wouldn’t get to be the chairperson (at least for the foreseeable future). But China, Russia, Cuba, Belarus, Egypt, and others that tend not to win best-of-breed awards for human rights protection may be successful in blocking this reform. There are last-minute attempts to save this proposal going on this week….

Development Assistance. The Europeans are trying to set a benchmark for development aid from rich countries at 0.7 % of GDP. The US, which gives about 0.1 %, is not happy with this proposal. Given that nations that are poorer than us are giving more of their GDP to help other countries, we are not winning big public relations points here. Stay tuned on what gets hammered out.

Unless you hate even the idea of the UN, it is hard to see reform faltering as anything but a sad result. There are too many people with too much at stake in the poorest an/or least free parts of the world for this opportunity to be squandered. Moreover, there is too much at stake for the US for us to allow this opportunity to pass: the UN patrols the warzones, builds the infrastructure, and outs the bad-actors in places where we just do not have the time or resources or political will to act directly. Make no mistake, the US gains much more from the UN than any cost—financial or otherwise—levied upon us. For 60 years, we have leveraged our power by using the UN managerial, peacekeeping, and coordination resources of the UN as force multipliers.

On the one hand US is facing the burdens of long-term overseas conflicts and domestic disasters. On the other hand, there are crises in competence and ethics at the UN. The result is that the stakes of UN reform have never been higher. For either of us.

It would be no surprise if this summit ends, as others have, in political gridlock. I think that the chances that a deal will be brokered and that John Bolton and Kofi Annan will get to hug it out before the closing credits are pretty slim. But, sooner rather than later, something will have to change.

Yoo Gets Front Page Treatment

by Julian Ku

How many law professors get front page treatment in the Wall Street Journal? Today’s WSJ profiles Prof. John Yoo of Berkeley, essentially treating him as an architect, maybe the architect of the Bush Administration’s legal approach to the war on terrorism. Here are some excerpts:

Mr. Yoo is playing an instrumental role in redefining the murky area where law intersects with foreign policy. The change underpins President Bush’s claim that he possesses the sort of far-reaching emergency powers exercised by past presidents during conventional wars.

Mr. Yoo, like others in the academic clique known as “sovereigntists,” is skeptical of international law and the idea that international relations are ever based on principle, as opposed to self-interest. Mr. Yoo argues that the Constitution gives Congress limited authority to deter presidential actions in foreign affairs. The judiciary, he says, has almost none.

The Yoo Doctrine, as it might be called, fits with the broader Bush-administration view that pursuing American interests is best for the country and the rest of the world. Before 9/11, Mr. Yoo helped lay legal groundwork for some of the president’s high-visibility withdrawals from treaties, including the antiballistic missile pact with Russia and the agreement underpinning the International Criminal Court in the Netherlands, established in 1998 to deal with the gravest international crimes.

While it is nice to get the front page treatment, I’m sure John could do without the sometimes hysterical denunciation he gets, not only from the political left, but from fellow academics and his students. On the other hand, he has a book coming out from the University of Chicago Press, so all types of publicity, I suppose, can only be a good thing.

Padilla is Back in Court – And Loses One More Time

by Julian Ku

The Fourth Circuit’s new opinion on Jose Padilla’s challenge to his detention as an unlawful enemy combatant is here (thanks to Curtis Bradley for the heads up). The holding, by Judge Luttig (an oft-floated name for the Supreme Court) is:

We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the
United States of September 11, 2001.

I’ll blog more about this later. Must run to class!

Chief Justice Roberts and Executive Power: The Clerkship Inheritance

by Julian Ku

It is well known that Judge John Roberts served as a law clerk to the late Chief Justice Rehnquist, whom Roberts is quite likely to succeed. But less attention has been paid to the actual cases Roberts may have worked on as a law clerk for Rehnquist, even less attention to the cases that Rehnquist worked on when he was law clerk to Justice Robert Jackson in 1952. It turns out that Rehnquist most likely worked on Youngstown Sheet & Tube v. Sawyer , perhaps the most important case dealing with the scope of the President’s executive power until Dames & Moore v. Regan, decided in 1981. Of course, it just so happens that Rehnquist was clerking for Jackson when Youngstown was decided, and Roberts was clerking for Rehnquist when Dames & Moore was decided. Will the Jackson-Rehnquist-Roberts tradition lead to yet another seminal case on executive power? It is quite likely.

Dames & Moore and Youngstown both involved questions of the scope of the President’s power to unilaterally (meaning without authorization from Congress) pursuant to his general foreign affairs power.
The scope of this power is obviously central to many of the war-on-terrorism related cases facing the Supreme Court in the near future (e.g. Hamdan- the military commission case, the Hamdi enemy combatant cases, and the Guantanamo detainee cases). As the new Chief Justice, Judge Roberts is likely to rule on many, if not most of these cases.

If I had to guess, I would guess that Roberts will likely be very sympathatic to a broad reading of the President’s foreign affairs power. Like Jackson, who served as Attorney-General for FDR, and Rehnquist, who served as an Assistant Attorney General for Nixon, Roberts’ main government experience has been in the executive branch as associate White House Counsel and Deputy Solicitor General. His immediate mentor, Rehnquist, was also well-known for his willingness to invoke deferential doctrines like the political question doctrine to shield the executive’s foreign affairs determinations from judicial review. Roberts’ own brief record on the D.C. Circuit partially confirms this, although his concurring opinion in Acree v. Iraq (upholding the President’s determination divesting U.S. POWs of judgments won against Iraq) relies solely on standard arguments of statutory interpretation.

We’ll have to wait and see, but it would be an interesting twist of fate if Roberts were to pen the next great executive power case, building on the clerkship inheritance of Justices Jackson and Rehnquist.

From Scandal to Reform at the U.N.

by Chris Borgen

The Volcker Committee has delivered its report on the oil-for-food scandal at the UN. See also the BBC report about it here.

Although it finds no direct wrongdoing by Kofi Annan, the Commission puts at his feet the responsibility for the Oil-for-Food Program being inadequately managed and going awry. We’ve already written much on the various allegations and preliminary findings. Now is the time, particularly with all the reform issues that will be debated in the coming weeks at the UN, to focus on what needs to be done so that there is some real financial accountability. The Committee makes the following recommendations:

1. Create the position of Chief Operating Officer (“COO”). The COO would have authority over all aspects of administration and would be appointed by the General Assembly on the recommendation of the Security Council. The position would report to the Secretary-General and the United Nations Charter should be amended as appropriate.

2. Establish an Independent Oversight Board (IOB) with a majority of independent members. In discharging its mandate, the IOB should have functional responsibility for all independent audit, investigation and evaluation activities, both internal and external, across the United Nations Secretariat and those agencies receiving funds from the United Nations and for which the Secretary-General appoints the executive heads..

3. Improve the coordination and the oversight framework for cross-Agency programs.
Strengthen the quality of the United Nations management and management practices.

4. Extend the financial disclosure requirement well below the current assistant secretary-general level within the organization and specifically include the Secretary-General and the Deputy Secretary-General as well as all UN staff who have any decision-making role in the disbursement or award of UN funds (eg. Procurement Department, Office of the Controller).

5. Expand and better define the United Nations conflict of interest rules so that they encompass actual, potential and apparent conflicts of interest.

6. Agencies involved in a United Nations program are entitled to reasonable support for “overhead” as well as direct expenses. In the context of the Oil for Food Programme, those charges were excessive and the Agencies involved should return up to $ 50 million in excess compensation secured as a result of work performed under Security Council Resolution 1483.

While independent review boards and other such structures play their part, what is most sorely needed is a culture of accountability. The Committee is correct for pointing out the organizational changes that need to be made but we also need to focus on the attitudinal changes that are required. In the era of Enron, the importance of fostering such a sense of corporate ethics, as well as methods of formal oversight, should be of no surprise.

A couple of days ago, I posted some observations on what private lawyers can bring to public international law. Here is another example. If there’s one thing that private attorneys have been grappling with in recent years (especially in the U.S., which takes financial transparency particularly seriously), it is the elucidation of best practices for financial accounting, disclosures, and decision-making. Some of the insights we have gained due to recent corporate scandals can be put to use in the service of building better international organizations. The U.N. will only be as good as we make it.

More on the U.S. and Foreign Aid: Taking Cash From Sri Lanka

by Julian Ku

Apropos of my post last week, U.S. Secretary of State Rice has made a point of publicly thanking foreign countries for their contributions to the Hurricane Katrina relief efforts. Here is an excerpt from her news conference:

. . we have, in fact, had offers from more than 70 countries around the world. We are now putting those offers to good use. We have used Canadian airlift. Singaporean helicopters were in the area and have helped with people. We have offers from France and those supplies will be taken up. We have a need, as a matter of fact, for – in some parts of the devastated areas — for meals ready-to-eat, the MREs, and we have gone out to countries to ask for more of those. We’ve had cash contributions.

I just want to say that people have said without fail that the United States is a compassionate country that has helped so much when there has been devastation around the world that they want give back to the United States. And that should make us feel good as Americans to know that people acknowledge how much we have been able to help and that they now want to help us.

The United Nations has mobilized their disaster experts. I want to thank Secretary General Kofi Annan for that. Their people are sitting with our people in Washington to plan out UN support. So there’s just a lot.

And if I could just close with one story that is particularly heartening to me, the small country of Sri Lanka, which has just gone through its own devastation because of a tsunami, is one of the cash contributors to this effort. And that says something about the heart of the world as well as the heart of America.

Asian Arms Deals: Number One with a Bullet

by Chris Borgen

To the surprise of none and the concern of many, a recent report finds that Asia has overtaken the Middle East as the developing world’s leading market for arms. China, India, Taiwan, Pakistan, and South Korea are among the developing world’s top ten arms importers. And, while China has been the developing world’s top importer from 2001 and into 2004, in 2004 India got the top spot. Number one with a bullet, so to speak.

It also comes as little surprise that the top exporter into the region is Russia. Besides sales to China and India, Russia has also focused on building markets in such once (and future?) hotspots as Indonesia, Malaysia, and Vietnam.

Peggy, Julian, and I have written before on the lack of solid regional arrangements in Asia on issues ranging from dispute resolution to human rights. The topic of arms transfers definitely lends itself to a discussion of the uses of international organizations to increase transparency and also for confidence building. But I want to leave that for another day.

Instead I want to point out two sentences from this report that, as a former transactional attorney, caught my eye:

“Russian leaders have made important efforts, in recent years, to provide more flexible and creative financing and payment options for prospective arms clients,” the report said.

“It has also agreed to engage in countertrade, offsets, debt-swapping, and, in key cases, to make significant licensed production agreements in order to sell its weapons.”

What I see here is how creative financial lawyering is used to facilitate the arms trade. Once again, no surprise, but perhaps the role of private lawyering—for good or ill—doesn’t get quite enough attention in our discussions of so-called high politics.

I remember talking a few years ago to one international lawyer who has been involved in international dispute resolution issues in Eastern Europe, Africa, and Asia. She said that one of the great untold stories in peace-building was the work of transactional lawyers who did the grunt work of building financing mechanisms to channel capital inflows to post-conflict regions and who solidified peace agreements that were on paper with joint ventures on the ground. These joint ventures that gave participants an interest in a communal future. They changed the “payoff structure” as rational choice theorists would say. Business joint ventures as a step toward political joint ventures.

In our discussions about whether law is or is not effective in changing the behavior of states, we sometimes lose sight of the fact that law is most often used as a tool to facilitate one’s ends. And, even when discussing politico-military issues, we may need to focus a bit more on the role of private, transactional, lawyering in order to see more clearly the pas de deux of international law and politics.

Judge Roberts and the Genocide Convention

by Julian Ku

The Washington Post has a curious article today detailing Judge Roberts’ doubts (but ultimate support) for U.S. ratification of the Convention Against Genocide during the Reagan Administration. The description of the memo is more evidence that, at least with respect to Judge Roberts’ views on international law, Judge Roberts’ opponents have very little to criticize. The memo simply noted that opponents worried that:

the treaty “internationalizes” criminal law, that it could force Americans to stand before an international tribunal, that violent nations would ignore the treaty while hostile ones could use it for “propaganda” purposes, forcing the United States to go before the tribunal because of its actions in Vietnam or other countries.

“These objections are not unfounded,” Roberts wrote. But he added that “a consensus has evolved that they are outweighed by the propaganda windfall our failure to ratify the convention has already afforded our international opponents.”

Based on this (and lots of other advice), the Reagan Administration eventually supported ratification of the Genocide Convention. And the advice, which is sensible and pragmatic, takes seriously potential objections to an international treaty while at the same time recognizing the foreign relations importance of participating in such international relations regimes. Sounds pretty sensible to me, and even more evidence that Roberts opponents have almost nothing solid to support their opposition to his confirmation.

Should America Accept Foreign Aid?

by Julian Ku

The Katrina disaster is far worse than most Americans could have expected. I’ve spent a fair amount of time in New Orleans and I remember people telling me that New Orleans in particular is vulnerable to hurricanes, but I never took it seriously. The pictures and stories coming out of the Gulf Coast are horrifying, and to many Americans, look more like stories pouring in from foreign countries struck by natural disasters than from the U.S.

Interestingly, a number of foreign governments (including Canada, France, Honduras, Japan, Russia and the United Kingdom) and the United Nations have offered to assist in Katrina disaster relief. Thus far, the U.S. has been polite, but has not formally accepted any of those offers.

Obviously, few countries in the world are better positioned to aid themselves than the United States (the Senate has just approved $10.5 billion for hurricane relief), so the need for foreign aid is not exactly urgent. Moreover, the real problem in places like New Orleans seems to be the lack of order and security rather than rescue workers.

But there is something to be said for accepting foreign assistance, however, minor (and as long as it doesn’t disrupt the main aid effort). Accepting help from your friends and neighbors, even if you don’t need it that much, can only help remind the rest of the world that America is a gracious country. And a gracious America is a less threatening America.

David Glazier on Military Commissions

by Julian Ku

David Glazier at Intel Dump has provided this analysis of the new military commission rules here. Most of his criticisms seem fairly plausible, although I wonder about one particular claim he makes:

There is an extensive body of WWII era precedent that establishes that the failure to provide a trial measuring up to customary international due process standards is in itself a war crime, even where the accused are acknowledged to have been illegal combatants not qualifying for protection under any international treaty.

Here, David is arguing that military commission trials that do not meet customary international law standards are themselves war crimes. He further argues that these customary standards essentially require the same procedural fairness as court-martials for members of the U.S. military.

I admit that I am unaware of this body of precedent, and even if it existed, I doubt it could be enforced in any civilian court proceeding. While measuring military commission trials by U.S. treaty obligations seems reasonable, I am leery of relying too heavily on customary international law, which is notoriously fuzzy, and upon which none of the civilian courts analyzing the military commission trials have relied.