Archive for
November, 2005

Is the U.S. Still a Signatory to the ICC Statute? It Depends on Who You Ask

by Julian Ku

The International Criminal Court Assembly of States Parties has opened their second session in the Hague this week. The Assembly of States Parties is composed of representatives of all of the governments party to the ICC Statute, that is to say, those countries that have signed and ratified the ICC Statute.

Of course, the U.S. has famously revoked its signature to the ICC Statute. Or has it? According to the ICC’s official statement, the U.S. is a “observatory signatory.” That is, the U.S. is not a party “to the Statute but ha[s] signed either the Statute or the Final Act of the Rome Conference. . .” As such, it “may be [an] observer[] in the Assembly. Observer States are allowed to participate in the deliberations of the Assembly, but may not participate in the taking of decisions.”

Does “unsigning” even matter if the U.S. is not a party to the treaty? It might, because states that sign a treaty generally have an obligation to try to comply with the treaty until it ratifies. This obligation is one of the reasons the U.S. tried to “unsign” back in 2001. In any case, it looks like the ICC hasn’t accepted the U.S. revocation of its signature. This might or might not matter, but it is certainly a strange situation. Perhaps it represents the ICC’s wishful thinking — if they can just hold on until 2008 and President Hillary…

Charming Treaties

by Duncan Hollis

First of all, I want to thank Chris, Peggy, Julian and Roger for letting me spend some time here at Opinio Juris. As an avid reader, I’m looking forward to the opportunity to exchange ideas with other Opinio Juris readers.

To that end, I want to start off with a question about judicial treatment of non-self-executing treaties. U.S. courts have certainly devoted considerable (albeit often inconsistent) attention to the question of when to enforce a U.S. treaty by declaring it “self-executing” or “non-self-executing.” But the inquiry always seems to end once a court decides the treaty in question is “non-self-executing.” Having made that determination, U.S. courts generally view such treaties as irrelevant to the case at hand.

What I am wondering is why courts don’t proceed to apply the Charming Betsy canon—i.e., “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” 6 U.S. (2 Cranch) 64, 118 (1804). After all, U.S. treaty practice is not to join a treaty unless the necessary domestic steps have been taken for the United States to be able to comply with the treaty. Sometimes this will require new legislation (e.g., the Senate gave advice and consent to the Basel Convention in 1992, but the United States has not ratified it pending the enactment of existing legislation). But other times the United States goes ahead and joins the treaty under the assumption that existing legislation meets the treaty’s requirements. This was the case, for example, with U.S. adherence to human rights treaties such as the ICCPR where, subject to the U.S. reservations and understandings, the Executive Branch (with Senate concurrence) took the position that existing law generally satisfied U.S. obligations under the treaty. If that’s true (and certainly we could debate the U.S. interpretation of what the treaty required), why don’t courts who decide a treaty is non-self-executing look at whatever law the United States indicated was the basis for U.S. adherence and analyze it with an eye to the treaty itself? Why not apply the Charming Betsy canon to non-self-executing treaties?

Let me be clear — I’m not suggesting direct judicial enforcement of such treaties, although I suspect some might view a Charming Betsy analysis as a back-door way of doing so. Rather, I am suggesting that courts that decide not to enforce a treaty directly could still utilize the treaty as an interpretative tool with regard to whatever law(s) the Executive Branch indicated was the basis for U.S. adherence to a treaty in the first place. I wonder whether such an approach could bridge the gap between those who object to giving treaties direct legal effect and those who want to ensure treaties receive recognition as the supreme Law of the Land under Article VI? I’d be interested in whether people are aware of any courts taking the approach I am suggesting (I think some WTO caselaw might lean this way but wonder whether the Uruguay Round Agreements Act makes it a case sui generis)? If there’s no existing precedent on this front, do people think it would be a feasible or appropriate thing for U.S. courts to do?

My Final Post – Growing Tensions Between U.S. and Europe

by Bobby Chesney

Today is my last day as a guest-blogger here at Opinio Juris, and so I’d like to begin by thinking Peggy, Roger, Julian, and Chris for their hospitality. I must say that I have a new respect for the effort that they put forth in generating the wonderful product from which we all benefit on this blog. Let’s hope they keep at for a long time to come.

On to more interesting matters…this just isn’t a good week for the U.S. vis-a-vis cooperation with our European allies with respect to counterterrorism. Yesterday, an Italian judge determined that a former diplomat at the U.S. embassy in Rome who was, apparently, the CIA’s Chief-of-Station at the time, should not receive the benefit of diplomatic immunity with respect to the arrest warrant issued in connection with the extraordinary rendition/seizure of Egyptian cleric Osama Moustafa Nasr. Don’t hold your breath on any U.S. citizens being extradited in connection with this case, of course. Meanwhile, both the Council of Europe and some member states continue to move forward with investigations associated with claims that the CIA operates “black site” detention centers for high-level al Qaeda detainees in undisclosed European locations (or at least transships such detainees through European airports).

That’s all for now. It’s been a real pleasure!

Comparative Law and Language

by Roger Alford

Larry Solum at Legal Theory Blog is highlighting a chapter entitled Comparative Law and Language by Vivian Grosswald Curran in a forthcoming book The Oxford Handbook of Comparative Law edited by Reinhold Zimmermann and Mathias Reimann. From the abstract it sounds quite interesting:
Comparative law is law’s cybernetics, or ‘theory of messiness.’ It attempts to steer through the messiness of the foreign by reordering it into the language of the familiar without betraying the original. It is needed urgently in contexts of unrecognized metamorphosis, and today metamorphoses are burgeoning in murky areas outside of law’s traditional categories of either the national or the international. The less apparent, the less visibly foreign, the foreign is, the more comparative law has a task of translation involving the formation of a vocabulary to transmit new configurations that resist detection and articulation. This essay examines the centrality of translation to processes of language and meaning construction, and links translation to comparative law as a model for the study of similarity and difference, the universal and the particular.

The debate in comparative law over the relative importance of similarity and difference among legal systems has its counterpart in linguistics in conflicting views about whether commonalities among languages are fundamental or marginal. These issues situate both language and comparative law between mutually contradictory aspirations of universalism and pluralism which have stalked the evolution of both fields. Despite appearances of the ascendancy of universalism in today’s world, it is not difference and pluralism that are receding, but, rather, that former domains of pluralism and difference recede, while others emerge.

Like language, inevitably imprecise and perpetually in flux, comparative law can not be frozen once and for all, to be captured for future application if only it is developed with sufficient acuity and insight. It shares what Isaiah Berlin attributed to philosophy and distinguished from the scientific: it does not carry within itself the method of its own solution, and therefore must be reinvented in each generation, destroying its own past rigidities and methods of decoding and transmitting, in order to construct a new modality of analysis, a new vocabulary better adapted to changed meaning.

Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other.

Executive Treaty Interpretations

by Bobby Chesney

Federal courts routinely assert that they are bound to give deference to treaty interpretations adopted by the Executive branch. See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1992) (stating that the “meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight”). And, at least as an anecdotal matter, conventional wisdom holds that the executive viewpoint does prevail in most, if not quite all, instances. But is conventional wisdom accurate on this score? I’m inclined to agree that courts do tend to conform to the executive viewpoint, but it also seems likely that the nature of judicial deference to executive treaty interpretations might vary in different contexts.

Potentially relevant variables might include: the manner in which the Executive’s “view” is made known to the court (e.g., the view might be stated by the U.S. as a litigant in its own brief; it might be stated by the U.S. as amicus; it might be stated in diplomatic correspondence that is brought to the attention of the court by private litigants; or it might be implicit in U.S. practice which is then brought to the attention of the court by litigants); whether the Executive’s “view” was presented to the Senate during the process of obtaining its consent to the treaty (an issue that generated considerable debate during the 1980s in connection with the Reagan Administration’s proposed reinterpretation of the ABM Treaty); whether the current Executive view departs from a prior view; and, of course, the subject-matter in issue. The more one thinks about these and other potential distinctions, the more it seems that it would be a mistake to view judicial deference to executive treaty interpretations as a monolithic phenomenon.

Why do I mention all of this? Well, I’ve recently drafted an essay setting forth my initial thoughts on the topic, and am now in the process of collecting cases in connection with a quasi-empirical inquiry into the matter. I’d be quite grateful for any suggestions that readers may have as I go about refining the design of this project.

Salvadoran Torture Victims Win $6 Million Verdict

by Roger Alford

Somehow in the Thanksgiving rush this important story escaped my attention. Last week a jury in Memphis, Tennessee awarded $6 million to four victims of torture in the early 1980s. Nicholas Carranza, a former colonel in the Salvadoran Army, was held responsible for the torture of the plaintiffs and the death of family members. CNN has a brief story here. A more detailed analysis is provided here by a NGO group, the Center for Justice and Accountability, that brought the litigation. The law firm of Bass, Berry & Sims was co-counsel with CJA and has a story of the verdict here.
Two things are worthy of note. First, unlike Filartiga and similar ATS torture cases, this case involves command responsibility. Carranza as a commanding officer was found liable for ordering the torture, not commiting the acts. According to CJA, “[t]he verdict represents the first time that a U.S. jury in a contested case has found a commander liable for crimes against humanity.”
Second, it is particularly alarming that a former U.S. Ambassador to El Salvador, Robert White, as well as Carranza himself both testified that Carranza had been receiving money from the U.S. government since 1965 as a paid informant of the CIA. These payments continued while Carranza was Vice-Minister of Defense and a member of the High Command in 1980. According to CJA, Ambassador “White asked the CIA station chief in El Salvador to remove Carranza from the CIA payroll because of his deplorable human rights record but no action was ever taken.”
On the heels of my last post about Doe v. Israel describing how difficult it is to win most human rights cases, it is important to note that sometimes ATS plaintiffs are able to secure stunning courtroom victories. As one plaintiff put it, “Now that the jury has held Colonel Carranza responsible for these crimes my family has finally found the justice that we have been seeking all these years.”

Welcome to Guest Blogger Duncan Hollis

by Chris Borgen

Professor Duncan Hollis of Temple University School of Law will be blogging with us for the next month. Professor Hollis is a specialist in treaty law and has edited a new book, National Treaty Law and Practice. Other examples of his scholarship can be found on his SSRN page. Prior to entering the academy, Professor Hollis was in the U.S. State Department, where (among other things) he worked on treaty affairs, international environmental matters, and also served as Counsel to the United States in the provisional measures phase of the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) and contributed to the U.S. presentation in the Oil Platforms Case (Iran v. United States).

Welcome to Opinio Juris!

Case of the Month: Doe v. Israel

by Roger Alford

My vote for the most important international law case in November is Doe v. Israel, ___ F.Supp.2d ___ (D.D.C. Nov. 10, 2005), available here. The case arises out of claims by Palestinians living in Israel or the West Bank against public and private Israeli defendants, including Ariel Sharon, Shimon Peres, the State of Israel, Israeli government instrumentalities, and various private defendants, including Israeli West Bank settlers.
The case has virtually everything. The claims range from the exotic (genocide) to the mundane (trespass), with over a dozen others thrown in for good measure. You get the impression the plaintiffs opened the human rights playbook and threw everything they could possibly think of at the defendants. According to the opinion, “The complaint exceeds 140 pages and includes nearly 600 paragraphs, broadly alleging that plaintiffs, or their loved ones, have been personally and financially injured by the actions of the Israeli defendants-and those acting under their command or policies-regarding settlement activities in the West Bank.” The defendants responded in kind and raised the ramparts high, including every obstacle they colorably could propose.
Most important, the case offers a primer on many, if not most, of the issues typically addressed in an international litigation class: ATS, TVPA, RICO, jus cogens, the political question doctrine, the act of state doctrine, head of state immunity, sovereign immunity, FSIA exceptions, the Hague Service Convention, jurisdictional discovery, personal jurisdiction over private defendants, and the extraterritorial application of substantive laws. If you wanted a good introduction to the salient issues in human rights litigation, Doe v. Israel is not a bad place to start.
What is most interesting about the case is that it illustrates just how difficult it is to clear the many hurdles that stand in the way of most human rights cases. As Doe v. Israel underscores, there are a host of procedural and substantive doctrines that have been established to restrain judicial interference with foreign affairs. Each doctrine has its place, but the combined effect is to make it exceedingly rare for a human rights case to run the gauntlet and secure success in the end. This is as it should be, for these doctrines were designed to ensure that only a special and narrow category of international human rights cases will survive scrutiny. Any other approach would risk having a wide range of international disputes resolved in U.S. courts. It would be, for example, a strange development indeed if a large portion of the Palestinians’ grievances against Israel were resolved in a federal courthouse in Washington D.C.

Gareth Evans on the “Dogs that Don’t Bark”: Are regional and international peacekeeping efforts reducing the incidence of war?

by Peggy McGuinness

The LA Times recently carried this op-ed by former Australian FM Gareth Evans on the successes of preventive diplomacy and peacekeeping (perhaps better described as peacemaking) missions around the world. He cites the Human Security Report 2005 for evidence that the incidence of war is on the decline, and that third-party interventions (diplomatic, sanctions, military deployments) play a large role in the success stories.

As Evans notes, one of the problems of measuring success is how to determine the conflicts that were avoided – the Holmesian (Sherlock, not Oliver Wendell) “dogs that did not bark.”

There are many reasons for these turnarounds. They include the end of the era of colonialism, the aftermath of which generated two-thirds or more of all wars from the 1950s to the 1980s. The end of the Cold War meant no more proxy wars fueled by Washington or Moscow, and it also hastened the demise of a number of authoritarian governments that each side had been propping up and that had generated significant internal resentment and resistance.

But the best explanation is the one that stares us in the face: the huge increase in international efforts to prevent, manage and resolve conflicts.

The best stories are the ones that do not reach the evening news: the dogs that never barked. Using the hard lessons learned from the disastrous days of the early 1990s in places such as Bosnia, Rwanda and Somalia, the international community is much better now than it ever used to be at preventing conflict. Between 1990 and 2002, the number of U.N. diplomatic missions aimed at stopping wars before they started increased sixfold, according to the Human Security eport. Although sometimes an imperfect tool, economic sanctions against abusive regimes around the world increased elevenfold between 1989 and 2003. Early and sensible action in places such as Burundi, Indonesia and Macedonia has kept most Americans blissfully unaware that these were countries that recently veered away from the large-scale violence that has plagued them in the past.

Evans is a proponent of the doctrine of the “responsibility to protect” – an effort to create a norm that the international community has not a right, but a duty under international law to go into states where through armed conflict, mass human rights violations or large-scale humanitarian disaster, the state has not protected the most basic rights of its inhabitants. Evans explained the concept in this article (via the International Crisis Group website) in Foreign Affairs last fall:

Using this alternative language will help shake up the policy debate, getting governments in particular to think afresh about what the real issues are. Changing the terminology from “intervention” to “protection” gets away from the language of “humanitarian intervention.” The latter term has always deeply concerned humanitarian relief organizations, which have hated the association of “humanitarian” with military activity. Beyond that, talking about the “responsibility to protect” rather than the “right to intervene” has three other big advantages. First, it implies evaluating the issues from the point of view of those needing support, rather than those who may be considering intervention. The searchlight is back where it should always be: on the duty to protect communities from mass killing, women from systematic rape, and children from starvation. Second, this formulation implies that the primary responsibility rests with the state concerned. Only if that state is unable or unwilling to fulfill its responsibility to protect, or is itself the interpetrator, should the international community take the responsibility to act in its place. Third, the “responsibility to protect” is an umbrella concept, embracing not just the “responsibility to react” but the “responsibility to prevent” and the “responsibility to rebuild” as well. Both of these dimensions have been much neglected in the traditional humanitarian-intervention debate. Bringing them back to center stage should help make the concept of reaction itself more palatable.

What do OJ readers think of the “responsibility to protect?” Is it just another name for “humanitarian intervention?” Or does it imply a new conception of sovereignty itself, conditioned on “right conduct” at home and within the international community? Comments are open.

Radical Islam and the Egyptian Elections

by Roger Alford

Results from the Egyptian elections reveal that members of a radical Islamic group, the Muslim Brotherhood, have won up to 29 more seats in the 444 seat Egyptian parliament. Members of that group now have 76 seats overall, or 17 percent of all parliamentary seats. As the Financial Times has noted, “President Hosni Mubarak’s National Democratic party still looks set to retain a large majority in spite of its losses but the elections have underlined Washington’s dilemma in pushing for greater democracy in the Middle East.” The next test will come December 1, when the Muslim Brotherhood will field candidates to fill 49 of 136 seats.

The Bush Administration hopes that the hallmark of its second term will be the spread of democracy in the Middle East. Experts speak of “the Bush Administration’s unprecedented willingness to publicly criticize oppressive actions … by friendly governments” in the Middle East. The American-sponsored Greater Middle East Initiative is a call for the G-8 to promote democracy in the region by committing to free elections, sponsoring parliamentary exchange and training, increasing women’s participation in the legislative process, promoting judicial and legal reform, enhancing an independent media, promoting transparency, and developing civil society. A Brookings Institution scholar has praised the GMEI, stating that “The new GMEI draft reveals that the United States is no longer alone in its quest to address the region’s acknowledged deficits in freedom, knowledge, and women’s empowerment, but has engaged its European allies in a fruitful discussion of how to go about promoting reform.”

If you are uncertain of Bush’s commitment to democracy in the Middle East, read this speech, and this, and this, and this. Especially telling are the parallels Bush draws between Reagan’s efforts at democratization in Europe and his own in the Middle East:

“President Reagan said that the day of Soviet tyranny was passing, that freedom had a momentum which would not be halted…. A number of critics were dismissive…. According to one editorial of the time, ‘It seems hard to be a sophisticated European and also an admirer of Ronald Reagan.’ In fact, Ronald Reagan’s words were courageous and optimistic and entirely correct…. And now we must apply that lesson in our own time. We’ve reached another great turning point — and the resolve we show will shape the next stage of the world democratic movement.”

A senior State Department official told me last month that the top foreign policy objective of the Bush Administration’s second term would be the global march toward democracy. Time will tell whether this is in fact true. Other priorities compete for prominence, including “access to oil, cooperation and assistance on counterterrorism, fostering peace between Israel and its neighbors, stemming the proliferation of weapons of mass destruction, and preventing Islamist radicals from seizing power.” Bush’s response to the success of the Muslim Brotherhood in the Egytpian electoral process will be a good test of his priorities. In past meetings with Mubarik, Bush has avoided the issue, strongly praising Mubarik’s support in the global war on terror, while also encouraging the “ongoing debate on reform in Egypt, including the excellent discussions involving civil society representatives from the Arab world.” But what happens when civil society reform shows itself to be decidedly uncivil?

Despite the fact that there arguably has never been a truly free Arab democracy in 1,500 years, we may be on the cusp of a nascent move toward democracy in the region. There are encouraging signs of democracy’s progress in Iraq, Afghanistan, Lebanon, Palestine, and Egypt. One wonders if we are witnessing an inchoate Arab democracy movement that will revolutionize politics in the Middle East. The rosiest vision is that democracy will flower there much as it did with the Polish Solidarity movement in the early 1980s, which in a few short years revolutionized politics throughout Eastern Europe. But even if democracy in the Middle East one day mirrors Eastern Europe, we should expect both successes and a share of setbacks.

Of course, the Muslim Brotherhood is a far cry from Polish Solidarity. The great risk of democracy in the Middle East is that free and fair elections will result in dramatic in-roads for radical Islam. Middle East suffrage may portend suffering at the hands of a tyrannical fundamentalist majority. Alternatively, budding democracies in the Middle East may exhibit a strong commitment to fighting Islamic terrorism, but not prove particularly successful in combating it.

In the end, I share the assessment that “the Arab world’s authoritarian political climate has itself fueled the growth of militant Islamist movements … In an environment where freedoms of speech, association, and assembly are heavily restricted, Islamists also enjoy a natural advantage because they can organize and express themselves through mosques and other religious institutions, where governments are typically reluctant to intervene. If relatively free and fair elections are held under such conditions, radical Islamists are likely to achieve inflated electoral success…. [But] the risks in giving democracy a chance in the Arab world are more manageable than the risks of appearing to be indifferent to this popular aspiration.”
One might say that it is exceedingly unlikely that any country that belongs to the axis of democracy will also become a member of the axis of evil.

Ramsey Clark to Defend Saddam Hussein

by Roger Alford

Today it was announced that former U.S. Attorney General Ramsey Clark will join the defense team for Saddam Hussein.

This is good news. It should dispel any notion anywhere in the world that this is not a serious trial with top-notch defense counsel. In the words of Robert Jackson, this should “dispose of the contention that to put [this man] to trial is to do [him] an injustice entitling [him] to some special consideration. [This] defendant may be hard pressed but [he is] not ill used.” Saddam will be but the latest leader “of a defeated nation to be prosecuted in the name of the law, … [and] also the [latest] to be given a chance to plead for [his] life in the name of the law.”

U.S. States and International Law: Venezuelan Oil Deal with Massachusetts; Global Emission Standards in New York

by Chris Borgen

Federalism can be a tricky issue when it comes to foreign relations. On the one hand, states of the U.S. may not enter into treaties as foreign policy is the reserve of the federal government but, on the other hand, if a U.S. state breaches international law, it is the country as a whole that is responsible under international law.

This week there were two stories concerning states of the U.S. and foreign policy. First, there are the reports of Massachusetts and New York entering into agreements with the government of Venezuela and Citgo, the U.S. sub of the Venezuelan national oil company, to provide cheap heating oil to low income housing in those states. While states are not allowed to enter into treaties, they do in fact enter into many such agreements on a whole host of foreign trade and investment issues. In any given year, in fact, the number of state government foreign trade missions dwarfs the number of such missions from the federal government. Of course, these Venezuelan oil deals are especially contentious since Venezuelan President Hugo Chavez will use them to thumb his nose at the U.S. government. The deal was announced by Chavez during an official visit to Cuba, no less. I guess this is payback for Pat Roberston ordering a fatwa on Chavez, but at least it is payback in which some poor people can get cheaper heating oil.

Another aspect of international law and federalism has been how international standards have affected state regulations. New York has joined ten other states, including California, to have enacted (or be in the process of enacting) greenhouse gas emission standards that more closely hew international standards than those of the U.S. The result is an impending battle royale of litigation over whether New York can set more protective environmental standards than the federal government. New York isn’t claiming that it is doing this because of international law; rather I find this interesting because the international discourse on greenhouse emissions, as centered around the Kyoto Treaty, undoubtedly informed this bit of domestic legal change. The New York Times specifically mentioned that Gov. George Pataki supported the global greenhouse gas emission regulations and subsequently sought action by the NY state government. The results could be significant. The New York Times reports:

“The two biggest contributors to global warming are power plants and motor vehicles,” said David Doniger, a senior lawyer for the Natural Resources Defense Council. “If you deal with them, you deal with more than two-thirds of the problem.”

But automakers contend that the regulations will limit the availability of many sport utility vehicles, pickup trucks, vans and larger sedans, since they will effectively require huge leaps in gas mileage to rein in emissions. The industry also says the rules will force them to curb sales of more-powerful engines in the state, and ultimately harm consumers by increasing the cost of vehicles.

The standards are the most ambitious environmental regulations for automobiles since federal fuel economy regulations were enacted in the 1970’s. They will be phased in starting with 2009 models and require a roughly 30 percent reduction in automotive emissions of carbon dioxide and other greenhouse gases by the 2016 models.

So, between foreign oil deals and the give and take of norms between the international and domestic system, states of the U.S. often affect—and are affected by—international law and international relations.

Rafah Crossing

by Roger Alford

Palestine moved one step closer to peace with the opening of the Rafah crossing to Egypt. With no international airport open, the Rafah checkpoint is the international gateway into Gaza.

President Abbas was celebrating yesterday at the opening ceremony: “I think every Palestinian now has his passport ready in his pocket. Let them come to cross at this terminal whenever they want.” Or as one border crosser put it, “Today is a day of happiness for every Palestinian, the suffering is coming to an end…”

The most prophetic words came from the EU Middle East envoy Mark Otte: “We want to … transform your borders into bridges with your neighbors and with Israel. Israel is also your neighbor.” Secretary Rice said much the same two weeks ago: “This agreement is a good step forward. With the international community, Israel and the Palestinian Authority must keep working hard to make these measures work in practice. As they are implemented, trust can grow. Prime Minister Sharon and President Abbas have shown real statesmanship in making the decisions that led to this agreement.”

A map of the Rafah cross-point is available here.

Syria Avoids Security Council Sanctions, Agrees to Cooperate in Hariri Investigation

by Peggy McGuinness

Syria has agreed to comply with the demands of Security Council resolution 1636 and will cooperate with the Hariri investigation by allowing five Syrian government officials to be interviewed in UN offices in Vienna. This ends, for now, the Syrian stalemate with the Council, and avoids a follow on resolution that would likely have slapped sanctions against Syria. The progress of the Mehlis team investigating the Hariri murder and the Security Council’s robust response is significant, fairly rebutting Julian’s view that UN investigations tend to produce “muddy, often useless conclusions.” But it is also too early to declare complete success here.

What will happen to the co-conspirators in the Hariri assassination? If the earlier conclusions about official Syrian involvement are true, Assad faces further tough decisions with enormous international and domestic implications. It is not a foregone conclusion that the Council will continue to take a tough stance and hold Syria to the stringent obligations of 1636. The Council is, nonetheless, the only mechanism through which meaningful international sanctions can be imposed. As such, the case demonstrates the value of the UN playing the role of the disinterested third party in an investigation in which no one country can claim to be truly neutral.

Canada Whacks the U.S. with a $1.3 Billion Lumber Subsidy

by Julian Ku

Less than a week after the U.S. surrendered to a NAFTA tribunal’s order to eliminate U.S. duties on Canadian lumber, Canada brazenly announced yesterday that it would add a $1.28 billion subsidy to existing supports for the Canadian lumber industry. In other words, just as the U.S. dropped its duties in a good faith gesture, Canada has decided to whack the U.S. by adding even more subsidies to its (already wealthy and prosperous) lumber industry.

This little episode reminds us that there are no good guys or bad guys in most international trade disputes. The U.S. has been dilatory in its response to NAFTA judgments. But for all their posturing about respect for international trade rules, Canada’s leaders have proven themselves to be relentlessly pursuing their industry’s advantage, even against the spirit of the NAFTA trade rules.

Alpha, Bravo, Charlie: Nixon and Kissinger’s Search for Limited Nuclear Options

by Chris Borgen

Recently declassified documents at the National Security Archives show how President Nixon and Henry Kissinger were concerned that U.S. nuclear strategy was basically only a single option: Mutually Assured Destruction. The documents show how a mix of moralism, strategy, bureaucratic politics, and even Watergate drove the National Security Council to grapple with the idea whether there could be a limited nuclear war. It is the story of how the Single Integrated Operational Plan or SIOP was reconsidered during the Nixon Administration and how its three target packages—Alpha, Bravo, and Charlie—became part of the new doctrine. The documents and the analysis of William Burr of the National Security Archives are available here.

The tone of the memos and transcripts is framed, perhaps, by Kissinger’s quote from one NSC meeting that “to have the only option of killing 80 million people is the height of immorality.” Yes, but that doesn’t mean that the other options don’t make for chilling reading. While Nixon, in particular, was concerned with the specter of nuclear annihilation, there was also the concern was that the U.S.’s nuclear threat would not be credible if the only threat we had was to destroy the world. Credibility required some option that was less extreme. Consequently, pragmatism also informed the strategic reconsideration

The documents also show other factors that may be somewhat surprising. For example, one report notes that

The documents reveal Kissinger’s chilling insight that government budget-crunchers would prefer complete nuclear warfare because it was already planned for and would be cheaper than recasting U.S. capabilities to permit limited strikes.
“They believe in assured destruction because it guarantees the smallest expenditure,” he told an August 1973 National Security Council meeting in the White House Situation Room.

Watergate also played a part in the increased focus on a survivable nuclear option. Kissinger said in an August 1973 meeting that “My nightmare is that with the growth of Soviet power and with our domestic problems, someone might decide to take a run at us.”

The various declassified documents, and William Barr’s guided tour through the documents shed light on how the government went about considering the issues of the utmost importance, which literally had implications for the survival of the species.

Burr notes the following, for example:

Not all in the government agreed with Kissinger on the merits of limited nuclear options. One of Kissinger’s close advisers, Winston Lord, signed off on a paper prepared by several members of the Planning and Coordination Staff that took exception to the new thinking. While no one quarreled with the merits of flexibility, the Staff worried about some of the implications of the concept of “controlled nuclear escalation,” including a “possible adverse impact on deterrence, overreliance on nuclear forces, and overconfidence in the applicability of nuclear escalation in a wide variety of situations.” The arguments did not persuade Kissinger, who scrawled: “Good paper though I disagree with much of it.”

For those with an interest in national security or executive decision-making, Burr’s essay and the underlying documents are a compelling read.

Pinochet Released on Bail

by Roger Alford

Pinochet has posted bail and now remains free. See details here. The BBC has the best coverage of the indictments, one for tax evasion and the other for kidnapping. The coverage includes links, a profile, related articles, and background information. A full list of all news stories about the Pinochet indictments is available from Google here. As of Friday morning few if any major blogs are discussing the indictments, but here is a list of some that are.

An International Relations Perspective on Washington’s Thanksgiving Proclamation

by Roger Alford

Today is Thanksgiving Day in the United States, one of the truly great and distinctive national holidays of our country. The only obligation of Thanksgiving is that we celebrate and give thanks for the bounty that is ours.

George Washington’s Thanksgiving Proclamation is a regular fixture at Thanksgiving celebrations in many homes throughout the country. As noted here, it was drafted by the Senate and the House in September 1789 and proclaimed by Washington on October 3, 1789, just months after the Constitution was ratified and Washington was elected as President.

Much of the Proclamation speaks of gratitude for the establishment of the new nation and its Constitution, or as Washington put it, for “favorable interpositions of his Providence … for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted.”

But the Thanksgiving Proclamation also paid particular attention to international relations. I thought it might be interesting to emphasize those provisions of Washington’s Proclamation that specifically invoke international relations:

“WHEREAS it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favour … NOW THEREFORE, I do recommend and assign THURSDAY, the TWENTY-SIXTH DAY of NOVEMBER next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks … for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; … And also, that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; … to protect and guide all sovereigns and nations (especially such as have shewn kindness unto us); and to bless them with good governments, peace, and concord; … and, generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best.”

I especially like the prayer for pardon for national transgressions. To this day Americans are keenly aware of their own shortcomings and recognize that sometimes this manifests itself in corporate wrongdoing.

And then best of all, Washington calls us to collectively hope and pray for the prosperity of others. Washington’s Proclamation petitions a blessing on all nations (not just those who have shown kindness to us), fervently requesting that each nation be bestowed with good government, peace and harmony.

The full text as it originally appeared is here (a more readable version is here).

Happy Thanksgiving!!

Canada’s Triumph: U.S. Surrenders to NAFTA Panel’s Softwood Lumber Judgment

by Julian Ku

After months of whining by high-level Canadian politicians, the U.S. Commerce Department announced yesterday that the U.S. will comply with a NAFTA tribunal’s decision requiring the reduction or elimination of U.S. duties on Canadian lumber. The U.S. refusal to eliminate these duties had been one of the main sources of friction between the U.S. and Canada and potentially threatened the long-term viability of NAFTA itself.

This is far from the end of this long-running, dispute between the U.S. and Canada over lumber. Big Lumber in the U.S. is deeply disappointed calling the Commerce decision wrongful as well as “unconstitutional.” As I discussed earlier here, Big Lumber has filed a complaint in U.S. district court seeking to have the entire NAFTA Chapter 19 arbitration process declared unconstitutional.

Still, at least Canada can’t complain that the U.S. doesn’t respect NAFTA. Hopefully, the U.S. and Canada can now sit down and negotiate a full settlement of this essentially ridiculous dispute between two governments that should know better.

A Hopeless Case: Australia v. Singapore in the ICJ

by Julian Ku

An Australian national convicted by Singapore of drug running is facing execution next week, causing much justifiable angst in Australia. Some are advising the Australian government to seek a provisional measures order from the ICJ to stop the execution. As Australia’s Prime Minister announced today, however, such an appeal to the ICJ would be “pointless” because Singapore hasn’t done anything illegal.

I agree that an appeal to ICJ is a hopeless case because Singapore does not accept the compulsory jurisdiction of the ICJ and because Singapore almost certainly hasn’t violated any treaty or international law obligations it owes to Australia in convicting and then sentencing the Australian national to death. If the ICJ got involved, though, the court might prove my skepticism about their slow and ineffectiveness wrong. But I doubt it.

Dayton at Ten: Preparing Bosnia for EU Membership?

by Peggy McGuinness

It is hard to believe that a decade has passed since the signing of the Dayton Peace Accords that brought an end to the war in Bosnia. The peace in Bosnia certainly came too late for many (260,000 lost their lives in the war, over a million were displaced), but it did finally end the bloodshed. The implementation force for Bosnia — initially a NATO operation and now representing the first EU peacekeeping operation (EUFOR)– has succeeded in creating the conditions for democratic institution-building, resettlement, construction, foreign aid and investment, and some degree of reconciliation between the warring parties. And all this was accomplished with no casualties among peacekeepers deployed to enforce Dayton. UNPROFOR troops (those sent in under UN auspices to secure aid during the war) did suffer about 1,000 casualties pre-Dayton. So what made Dayton work?

First, the dispute was ripe for resolution. Bill Zartman at SAIS has defined ripeness in an armed conflict as a “mutually hurting stalemate.” Bosnia was not a prototypical stalemate in the summer of 1995; the Croats and Muslims had formed a coalition against Serb forces and had turned the tide by regaining territory on the ground. They were assisted by the decision of NATO to begin strategic bombing in response to an attack on Sarajevo and the massacre at Srebrenica. But the shifting fortunes on the ground made it clear that the US had the power to tip the balance in any direction. Second, the U.S. backed the peace. It was clear by 1994 that the earlier UN/EU peace process would not work. Engagement by the U.S., backed by NATO, made a difference. Indeed, it could be argued that by putting the credibility and the future of the NATO alliance on the line, the U.S. committed itself to success. Third, the appropriate number and right kind of troops were contributed to the implementation effort. The UN was kept out of Dayton implementation because they had failed during the UNPROFOR mandate. As Richard Holbrooke pointed out on the News Hour last night, if the ratio of troops currently in Iraq were as high as it was for the post-conflict phase in Bosnia, there would be 600,000 troops on the ground in Iraq, rather than 150,000.

Was Dayton perfect? No. There are flaws in both the process and the political arrangement – including the creation of two separate legal entities within Bosnia — that resulted at Dayton. The fact that Radovan Karadzic and Ratko Mladic are still at large ten years after their indictment by the ICTY is evidence, for example, that the “justice” part of the peace has had mixed results. And the governmental structures set up at Dayton have proved unworkable. That is why leaders of the main political parties in Bosnia committed themselves Tuesday to constitutional reform aimed at strengthening the central government. Such reforms are an important step toward European integration and eventual membership in the EU.

We will be studying and teaching the disintegration of the former Yugoslavia for many more decades to come. Dayton is just one piece of that complex case study.

For an additional view, Derek Chollet has this excellent analysis at Democracy Arsenal discussing lessons from Bosnia for the current crisis in Iraq.

International Year in Review

by Roger Alford

The ABA Section on International Law and Practice has just published the 2004 Year-in-Review. It is the best one-volume summary describing the developments in international law for the past year. It always comes out much too late, but it is a great resource. The reference begins at 39 International Lawyer 169 (2005).

Chapters include antitrust, environmental, trade, commercial dispute resolution, courts, criminal law, litigation, franchising, intellectual property, mergers and acquisitions, secured transactions, securities and capital markets, transnational legal practice, non-profits, information services, international transportation, immigration, employment, private tax clients, cultural property, health law, human rights, money laundering, China, Europe, Latin America, and Middle East.

A close look at the Padilla indictment

by Bobby Chesney

Although it gets us a bit far afield from the focus of Opinio Juris, I’m going to follow Roger and Julian’s lead and blog briefly regarding the Padilla indictment. (Yes, I’m still here. Sorry to have been so quite the past two weeks, but I do plan to be more active in the days ahead!)

Many months ago, there was considerable speculation that the government would obtain a criminal indictment against Jose Padilla in the Southern District of Florida, where it was known that a grand jury was investigating a circle of alleged Islamist extremists said to have links to Padilla. This has now come to pass. A grand jury in Miami has issued an indictment against Jose Padilla (and four others), and the President has ordered the Secretary of Defense to transfer him to the custody of the Attorney General. (You can get to the indictment from Roger’s post).

This is actually a superseding indictment in the existing matter of United States v. Hassoun, et al., No. 04-600001-CR (Cooke) (S.D. Fla.). Indeed, I believe it is the 5th superseding indictment, although of course it is the first to add Padilla as a co-conspirator (an earlier iteration, with charges against Hassoun, Youssef, and Jayyousi, is described in a DOJ press release here. In any event, the current defendants are: Adham Amin Hassoun (in custody), Mohamed Hesham Youssef (currently in jail in Egypt), Kifah Wael Jayyousi (in custody), Kassem Daher (not sure if he is in custody here, in Canada (where he lives), or not at all), andJose Padilla (in custody, of course).

The indictment is a fascinating example of the way in which federal prosecutors make use of existing federal statutes to prosecute persons allegedly involved, to varying degrees, with Islamist extremism.

1. Section 956:

Conspiracy to commit violent acts outside the United StatesIn this instance, the indictment alleges the existence of a conspiracy – including but not limited to these defendants – the ultimate aim of which was to commit acts of violence in other countries. Based on that claim, the indictment charges a violation of 18 U.S.C. 956, which prohibits conspiracy to commit an act of violence outside the United States, so long as (i) the act would constitute the offense of murder, kidnapping or maiming if committed in the US and (ii) at least one act in furtherance of the conspiracy takes place in the U.S. What is very interesting here – although typical of how 956 has been charged since 9/11 – is that there is no attempt to allege with any particularity what the specific act of violence would be; the indictment instead merely describes at a general level the use of violence by the broader jihadist movement of which this conspiracy allegedly was a part. In this regard, it is worth noting that the indictment does not label the conspiracy as a component of al Qaeda or any other specific group. Instead, the indictment describes the conspiracy simply as part of the overall “radical Islamic fundamentalist movement . . . [based on] a radical Salafist ideology that encourage[s] and promote[s] ‘violent jihad'”. (Indictment at 1). Several organizations – including al Qaeda – are named as representative and constituent of that movement, but in the end there is no formal attempt to match the defendants to any one group (reflecting the widely-held view that the jihadist movement has network rather than formal group characteristics). Thus, the conspiracy is labeled the “North American Support Cell,” rather than, say the “al Qaeda Cell.”

2. Section 2339A:

Material Support (to an act, not a group)As also has happened in the past, the indictment pairs the 956 charge with a charge under 18 U.S.C. 2339A, the older of the two material support statutes. This is not the statute that prohibits the provision of support to designated foreign terrorist organizations; as noted above, the indictment avoids formal organizational labels, as it probably must. Instead, this is the version of the material support law that more closely resembles a traditional aiding-and-abetting statute; it forbids provision of suppport (for example, money) to anyone if done with knowledge the support will be used to further a violation of one of several listed statutes, including 956. In this case, the claim is that the cell conspired to (and did) provide money and other logistical assistance (fundraising, mainly) in connection with the 956 conspiracy described above.

3. The other charges:

The other charges all concern defendant Hassoun. He has been charged with unlawful possession of a firearm (18 USC 922); making false statements to federal agents (18 USC 1001); multiple counts of perjury arising out testimony before an immigration judge (18 USC 1621); and obstruction of those same proceedings (18 USC 1505).

Copy of Padilla Indictment

by Roger Alford

A copy of the Padilla indictment is available from ABC news here. The blogosphore is abuzz with the news. Discussion can be found at SCOTUSblog here, Prawfblawgs here, and Balkinization here.

I’m a little surprised by the reaction I’ve seen so far. Isn’t this somewhat analogous to the Bush Administration’s response in Medellin? In that case at the last minute the Bush Administration ordered state court compliance with the ICJ’s judgment. It effectively killed the Supreme Court case, but it also resulted in real progress in the case at hand. Medellin’s counsel was quite pleased with the development. I also recall most international scholars and practitioners were cautiously optimistic about the Bush Administration’s strategic move.

Now at the last minute the Bush Administration has indicted Padilla. The Supreme Court case is now in jeapardy, but haven’t critics been asking for a release or indictment all along? Now they’ve got one. Sure it came on the eve of a briefing deadline before the Supreme Court, but isn’t it still a victory for Padilla? As his lawyer put it recently, “I may be the first lawyer to stand here and say I’m asking for my client to be indicted by a federal grand jury.” I would welcome thoughts on whether others agree or disagree.

The End of the Enemy Combatant Saga? Jose Padilla Indicted by Grand Jury

by Julian Ku

The Washington Post is reporting that Jose Padilla, the alleged dirty bomber held for three years as an “enemy combatant”, has been indicted by a federal grand jury for conspiring to commit terrorist attacks overseas. Interestingly, the indictment does not include the “dirty bomb” charges that were the basis for Padilla’s detention as an enemy combatant.

The obvious reason for bringing this indictment is to avoid a coming showdown in the U.S. Supreme Court over Padilla’s detention. As a U.S. citizen, Padilla’s detention was probably going to be reversed by the current Court’s membership, and even a future court’s membership, with Justice Scalia poised to order Padilla’s release.

This avoids the enemy combatant issue for U.S. citizens, at least right now. But the issue of the President’s authority to hold enemy combatants who are not U.S. citizens, mostly in Guantanamo Bay. That issue may yet be litigated. Or it may not, depending on whether Congress acts to endorse the President’s detention of those aliens in Guantanamo.

This is a smart move strategically (less so, from a principled point of view). It may be the last piece in the Bush Administration’s retreat from its more aggressive legal positions in the conduct of the war on terrorism. If Congress acts on McCain-Graham, the Bush Administration may yet avoid final court battles on all of its positions. We’ll see.

Brad Pitt, Trade Expert

by Roger Alford

There is a wonderful story in the Washington Post yesterday about Brad Pitt becoming immersed in the intricacies of international trade. Pitt is fast becoming an outspoken advocate for Africa, and he is coming to realize how central trade is to that agenda.

The tutorial was sponsored by a group called DATA (debt, AIDS, trade, Africa) established by U2 lead singer Bono. DATA’s mission is to “raise awareness about, and spark response to the crises swamping Africa: unpayable debts, uncontrolled spread of AIDS, and unfair trade rules which keep Africans poor…. At the core of DATA’s mission is a view that these issues are not about charity, but about equality and justice.”

I have mixed feelings about the news that Brad Pitt is trying to become a trade expert. My first emotion is disappointment. I have been teaching international trade here in Malibu for years and my neighbor Brad has never once expressed interest in auditing my class. Perhaps if I offered it as a night course?

Second, I find the notion rather comical. Can you imagine the tutorial lesson: “Well, Brad, there are three types of subsidies: green light, yellow light, and red light. Green light subsidies are always permitted because they enhance valuable objectives such as research and development. And then there are red light subsidies. You’re familiar with red lights, right? Well these subsidies are by definition prohibited because they create import or export distortions, such as a subsidy contingent on export promotion. And then there are yellow light subsidies that cause domestic injury. Are you getting all this Brad? Oh and then yellow light subsidies are actually divided into two types: dark amber and light amber….”

But in the end I greet the news with satisfaction. If Bono and Brad Pitt think international trade is vitally important, then who am I to disagree? They are correct that trade is of tremendous importance to the developing world, and the approach that the developed world takes in continuing subsidies to farmers and the like does have dramatic repercussions in other parts of the world. According to the article, “complete trade liberalization would enrich developing countries to the tune of $135 billion a year, more than these countries receive annually in aid and much, much more than they standto gain from debt relief.” The future of Africa is in part the future of international trade liberalization.

Pitt’s tutors obviously tried to emphasize the nuances in the fair trade debate. “Campaigning for trade is more complex than campaigning for aid, because trade creates losers as well as winners. Some poor countries currently benefit from preferential access to rich markets — preferences that would disappear if these markets were opened to everyone. Other poor countries are net food importers, so cutting rich-world farm subsidies and driving up food prices would hurt them.”

At the end of the tutorial on Friday, Brad Pitt confessed that international trade can be a bit “fuzzy.” Now he knows how my students feel.

Reinventing the Wheel: Creighton’s $750,000 Cuba Windfall

by Julian Ku

Creighton University School of Law has recently been awarded a $750,000 U.S. government grant to create a “a working model to establish a bilateral U.S.-Cuba property claims tribunal.” The goal is to have this model in place, along with others, for eventual use to ease Cuba’s post-Castro transition to democracy.

The grant to Creighton has already been the subject of some snarky comments in the Washington Post, pointing out that the grant to the Omaha, Nebraska school was awarded by a U.S. government official who graduated from Creighton. One wonders how the folks at the University of Miami Law School are feeling today, for instance. The grant calls for

a two-year factual/claims investigation, extensive multi-level legal analysis, significant field work in the U.S., Europe, Latin America and the Caribbean and legitimacy modeling on sophisticated social science computer software.

I admit that I’m a bit jealous that I didn’t get such a cool grant. Still, you don’t have to be churlish to wonder how some hypothetical future Cuban government will feel when the U.S. shows up at the bargaining table with a model tribunal and, perhaps, prior legal analysis and factual investigation of disputes that the hypothetical future tribunal will settle.

One might also wonder why it is worth creating a model for a bilateral claims tribunal when this is arguably the one kind of international tribunal the U.S. over which has extensive technical expertise and historical experience. Claims from the U.S. Revolutionary War were settled by an international claims commission, as were claims from the Mexican-American War and the Iran Hostage Crisis. It is a bit surprising that there is $750,000 worth of research on this process. I suppose “legitimacy modeling” software is very expensive.

Sixty Years Ago Today: Robert Jackson at Nuremberg

by Roger Alford

Professor John Barrett at St. John’s has reminded me that sixty years ago today Justice Robert Jackson, Chief Counsel for the United States, appeared before the Nuremberg Military Tribunal and made his opening statement. Jackson’s speech is one of the greatest in the modern era of international law.

The opening statement began as follows:

“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason….

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.”

Then in the closing paragraphs Jackson summarized what was at stake in those trials:

“The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators.

But it points to the dreadful sequence of aggressions and crimes I have recited, it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold members of its civilian inhabitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have “leave to live by no man’s leave, underneath the law.”

The full text of the speech is here. More on the Nuremberg Trials is available through Yale Law School’s Avalon Project here.

ECHR Upholds Denial of Graduate Student’s Right to Wear Hijab

by Roger Alford

The European Court of Human Rights last week upheld Turkey’s refusal to allow an adult Muslim woman the right to wear a hijab (female headscarf) to graduate school. The case is available here and the press release summarizing the case is here. In the case of Şahin v. Turkey, the claimant was a medical student at Istanbul University who came from a traditional Muslim family and considered it her religious duty to wear the hijab. (For many Muslim women, wearing the hijab is a religious duty that preserves their dignity and modesty). The faculty at Istanbul University refused to allow her to enroll in class, attend classes, or sit exams if she wore the hijab.

In her claim she argued that her choice to wear the hijab “had been based on religious conviction, which was the most important fundamental right that pluralistic, liberal democracy had granted her. It was, to her mind, indisputable that people were free to subject themselves to restrictions if they considered it appropriate. It was also unjust to say that merely wearing the Islamic headscarf was contrary to the principle of equality between men and women, as all religions imposed such restrictions on dress which people were free to choose whether or not to comply with.” (Para. 101).

The ECHR emphasized that “[p]luralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’…. Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society…. Where these ‘rights and freedoms’ are themselves among those guaranteed by the Convention… it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a ‘democratic society'” (Para. 108).

It then applied that balancing test to deny her right to freely exercise her religion and to uphold the centrality of secularism as an essential component of a democratic society. “[I]t is the principle of secularism, as elucidated by the [Turkish] Constitutional Court, which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn.” (Para. 116).

What a remarkable decision. A devout graduate student in Turkey must choose between practicing her faith and pursuing her profession. Happily, in the end Şahin chose both, but it required a move to Vienna to continue her studies.
To this American, Şahin reads as a headlong embrace of secularism and a regretful rejection of a more enlightened approach of “preserving religious liberty to the fullest extent possible in a pluralistic society.” McCreary County, 125 S.Ct. 2722 (2005) (O’Connor, concurring). Can you even begin to imagine telling a graduate student in this country that a yarmulke, hijab, or clerical collar is prohibited attire? Can you imagine the long-term repercussions of the professional class in a society having few persons who espouse such strongly-held religious convictions?
Of course I appreciate the particular problems that Turkey has in accommodating Islam, including radical Islam. But Turkey is by no means alone in Europe in imposing severe restrictions on religious attire.
Let’s just hope that Justice Kennedy does not advert to Şahin anytime soon to justify a curtailment of our First Amendment rights. Of course, there’s no obvious reason why the internationalists on the Court would not wish to do so. As Ronald Dworkin put it in the recent issue of NYU Law School Magazine: “These problems are all the same… We have the same basic philosophical issues facing us…. What is the role of the judge? What rights of moral independence do people have? … What is free speech about? … We’re talking about sensitive people of the same general intellectual background as ours facing the same issues we face and our listening to what they have to say.”

UPDATE: More on Şahin from Jacco Bomhoff at Comparative Law Blog here.

China’s Hilarious Future

by Julian Ku

This hilarious video of two Chinese students lip-syncing the Backstreet Boys reminds me for the zillionth time how technology and globalization is changing China in ways we can’t even imagine. President Bush, currently in Beijing, might want to take notice. Of course, the real value of this video is not its social-political significance. It’s just downright hilarious and should be an instant classic.

More on the Pew Poll: U.N.’s Favorability Rating Keeps Falling

by Julian Ku

Thanks to Roger for pointing out this interesting poll. Here’s another tidbit. The U.N.’s favorability rating among the general public continues to fall rather dramatically and pretty widely among all demographic groups, even as public support for the war in Iraq continues toi fall. Here is an excerpt from the report’s section on the U.N.

The public’s view of the United Nations has soured since March, continuing a slide that has been relatively steady over the last few years. In March, 59% held a favorable opinion of the U.N.; today just under half (48%) have a positive view. The decline has been steepest among groups that had been some of the U.N.’s strongest supporters, including Democrats (now at 58% favorable, down 17 points since March), blacks (49%, down 20 points), and those with household incomes below $20,000 (48%, down 19 points).

Of course, this doesn’t reveal whether the fall in support is due to the U.N.’s internal problems or its failure to more effectively constrain the U.S., or some other problem. But still, this is an interesting and potentially important trend.

Who Is Responsible for Detainee Abuse?

by Roger Alford

A fascinating poll on “America’s Place in the World” was just published by the Pew Research Center for the People and the Press (available here). The poll surveyed the general American public as well as opinion leaders in eight major categories. There is loads of information in the poll, but while we are on the subject of torture, it is worth pointing to this one nugget from the poll:

“The public, on balance, believes cases of U.S. prisoner mistreatment in Iraq and Guantanamo Bay were mostly the result of misconduct by American soldiers rather than the consequence of official policies. Opinion leaders are divided, with solid majorities in five of eight groups saying that the prison abuse scandal was the result of official policies.”

More specifically, the poll shows that opinion leaders are far more likely to conclude that the abuse was the result of official policy than the general public. As discussed in this section of the poll:

“While influentials largely agree in opposing the use of torture, opinions differ widely on where the responsibility lies for cases of prisoner mistreatment in Iraq and Guantanamo Bay. By more than three-to-one (75%-21%) scientists and engineers say that these abuses were mostly the result of official policies. A majority of security (57%) and foreign affairs experts (58%) agree, along with about half of academics (53%) and news media leaders (53%). But most military (60%) and religious (67%) leaders believe cases of prisoner mistreatment were mostly the result of misconduct on the part of soldiers and contractors. The general public is divided over this question – 48% believe soldiers and contractors are mostly to blame, while 36% blame official policies. Not surprisingly, the public’s views are highly differentiated by party. By a 67% to 20% margin, Republicans say these abuses mostly reflect misconduct by soldiers and contractors. Democrats and independents are more than twice as likely as Republicans to blame official policies (44% and 46% respectively).”

This disparity bears emphasis. Three out of four members of the National Academy of Sciences believes the mistreatment was the result of official policy, while three out of five of the top military brass believe it was not. The other interesting result: the average Democrat is less likely to believe that the mistreatment was the result of official policy than the average opinion leader in every category except leaders in the military, religion, and state/local government.

Is Philippe Sands Serious about the Pinochet Precedent?

by Roger Alford

Philippe Sands is at it again. In an article in the San Francisco Chronicle last week, available here, Sands appears to be publicly pushing his idea that David Addington, John Yoo, and others he describes as “higher in the administration’s hierarchy” (read: someone higher than the V.P.’s chief of staff!) should think twice about travelling abroad or they might suffer the same fate as Augusto Pinochet. It is precisely the same argument that Sands made in his debate with John Yoo a couple of weeks ago.

I would be curious if others have thoughts on whether this is a serious possibility. I have not heard anyone but Philippe Sands outspokenly and seriously pushing this idea. Is it in fact a plausible possibility that if a senior Bush Administration official, current or past, who was involved in the “torture memos” travels to Europe, they might be slapped with an arrest warrant from a Spanish prosecutor (or the like) and subject to an extradition proceeding? It seems highly implausible to me that Vice President Cheney’s chief of staff (or various senior deputies in the Justice Department) could be arrested if one of them took a trip to London or Madrid. But then again, I don’t know the mindset of an independent-minded Spanish prosecutor like Baltasar Garzón. I would be curious if others take a different view, particularly any international lawyers steeped in the details of the Torture Convention.

In short, is Sands dead serious about the Pinochet precedent?

WTO, NAFTA and International Judicial Abstention

by Roger Alford

Last month the WTO issued a decision (available here) in favor of the United States regarding the illegality of Mexico’s beverage tax. According to the USTR press release, under the Mexican tax, “soft drinks made with imported sweeteners, such as high-fructose corn syrup (HFCS) and beet sugar, are subject to a 20 percent tax on their sale and distribution. Beverages made with Mexican cane sugar are tax-exempt. The beverage tax resulted in an immediate drop in U.S. exports of HFSC to Mexico. As of 2004, U.S. exports of HFCS to Mexico remained at less than six percent of their pre-tax levels.”

One of the interesting procedural arguments at issue was the interplay between the WTO dispute resolution process and a NAFTA arbitration process. Specifically, the WTO panel rejected Mexico’s request for it to decline jurisdiction in favor of a NAFTA dispute settlement panel, concluding that WTO panels may not decline to exercise jurisdiction over disputes properly brought before them.

The key language in the WTO decision was that Mexico’s request for the WTO panel to exercise its discretion to decline jurisdiction implies “that the Panel has the power to decide whether or not to act. Indeed, discretion may be said to exist only if a legal body has the freedom to choose among several options, all of them equally permissible in law. It seems that such freedom for a panel would exist within the framework of the DSU only if a complainant did not have a legal right to have a panel decide a case properly before it…. [T]he aim of the WTO dispute settlement system is to resolve the matter at issue in particular cases and to secure a positive solution to disputes. A panel has thus to address the claims on which a finding is necessary to enable the DSB to make sufficiently precise recommendations or rulings to the parties. A panel would seem therefore not to be in a position to choose freely whether or not to exercise its jurisdiction. Were a panel to choose not to exercise its jurisdiction in a particular case, it would be failing to perform its duties.” (Paras. 7.7-7.8).

It then made quite an interesting conclusion regarding the legal nature of disputes before it, and how that nature would be compromised if the WTO engaged in a practice of judicial abstention. “Even assuming, for the sake of argument, that a panel might be entitled in some circumstances to find that a dispute would more appropriately be pursued before another tribunal, this Panel believes that the factors to be taken into account should be those that relate to the particular dispute. We understand Mexico’s argument to be that the United States’ claims in the present case should be pursued under the NAFTA, not because that would lead to a better treatment of this particular claim, but because it would allow Mexico to pursue another, albeit related, claim against the United States. The Panel fears that if such a matter were to be considered then there would be no practical limit to the factors which could legitimately be taken into account, and the decision to exercise jurisdiction would become political rather than legal in nature.” (Para. 7.17)

This conclusion makes immanent good sense. With the proliferation of international tribunals and arbitral bodies, concurrent jurisdiction between international tribunals will increasingly become an issue. This of course risks the possibility of inconsistent judgments, as Susan Franck discusses here. But the risk of a doctrine of international judicial abstention appears even greater, potentially leading international judges and arbitrators to render decisions beyond the scope of their authority and without sufficient regard to their treaty or contractual obligations to resolve the cases submitted to them.

Vote on Graham/Levin Amendment

by Roger Alford

I would be curious what our readers’ opinions are of this compromise. Scroll down and vote.

Do you approve or disapprove of the Graham/Levin Amendment?
Don’t Know/No Opinion

Free polls from

Harvard Law Review Debates Roper and Foreign Authority

by Roger Alford

The Harvard Law Review has just issued its Supreme Court Review and it includes four wonderful articles by Richard Posner, Vicki Jackson, Jeremy Waldron and Ernest Young debating Roper and the citation to foreign authority. Jackson and Waldron favor comparativism, while Young and Posner express strong skepticism. Abstracts and full texts of the articles are available on the Harvard Law Review website here. A summary and introduction to the debate is here.

Posner wrote the Foreward to this year’s review, and his discussion is broader than this one subject. But he has a long section on the “Cosmopolitan Court” that is highly critical of Roper and Lawrence. He argues that “I do not think the citation of these foreign decisions is an accident, or that it is unrelated to moral vanguardism. It marks Justice Kennedy (like Professor Dworkin) as a natural lawyer. The basic idea of natural law is that there are universal principles of law that inform–and constrain–positive law. If they are indeed universal, they should be visible in foreign legal systems and so it is “natural” to look to the decisions of foreign courts for evidence of universality…. To cite foreign decisions as precedents is indeed to flirt with the idea of universal natural law, or, what amounts to almost the same thing, to suppose fantastically that the world’s judges constitute a single, elite community of wisdom and conscience… Strip Roper v. Simmons of its fig leaves–the psychological literature that it misused, the global consensus to which it pointed, the national consensus that it concocted … and you reveal a naked political judgment.”

In her article, Jackson argues “the Eighth Amendment’s interpretive history supports the majority’s use of foreign and international law in deciding what is ‘cruel and unusual.’ Past practice, however, is only a partial answer to debates over whether transnational law should be considered in resolving questions of U.S. constitutional law, debates linked to a broader set of disagreements about constitutional interpretation. Part I below argues more generally that considering foreign and international law within a framework of learning by engagement — assuming neither convergence nor disagreement — is a legitimate interpretive tool that offers modest benefits (and fewer risks than current debate suggests) to the processes of constitutional adjudication. Part II makes preliminary suggestions for standards of inquiry in using comparative law in constitutional adjudication and raises cautions about the difficulties of developing contextually accurate understandings of foreign law.”

In his article, Waldron argues that in Roper “Justice Kennedy said that it was ‘proper’ to take foreign law into account and that referring to the laws of other countries could be “instructive” for the Court’s interpretation of the Eighth Amendment. But he did not explain the jurisprudence behind this view. Nor did the Roper dissenters articulate a theory of citation to foreign law that they could squarely refute; they simply denounced the practice. The theory that is called for is not necessarily a complete jurisprudence. But it has to be complicated enough to answer a host of questions raised by the practice: about the authority accorded foreign law (persuasive versus conclusive), about the areas in which foreign law should and should not be cited (private law, for example, compared to constitutional law), and about which foreign legal systems should be cited (only democracies, for example, or tyrannies as well). The theory has to be broad enough to explain the use of foreign law in all appropriate cases: too many scholars call for a theory that will explain the citation of foreign law only in constitutional cases. The theory has to be persuasive enough to dispel the serious misgivings that many Americans have about this practice: why should American courts cite anything other than American law? Above all, it has to be a theory of law.”

Finally, in Young’s article, he argues that “Roper’s ‘denominator problem’ concerned whether foreign jurisdictions should count in Eighth Amendment cases. Justice Kennedy’s claim that a domestic consensus rejected the juvenile death penalty was profoundly implausible given that twenty states retained the practice. But by shifting focus from the domestic to the international plane — where the United States stood as one jurisdiction against all the rest — the Roper majority made an implausible claim of “consensus” into a plausible one. Defenders of looking to foreign law typically describe that practice as a search for “persuasive authority” — an attempt, in Justice Breyer’s words, to “learn something” from a “judge in a different country dealing with a similar problem.” I argue here, however, that creating consensus by including foreign jurisdictions in the Eighth Amendment denominator goes considerably further and, in fact, gives the practices of those jurisdictions authoritative legal weight.”

The Revised Graham Amendment: A Legal Analysis

by Julian Ku

As Bobby helpfully notes in a comment to my last post, the revised Graham Amendment has made it through the full Senate and will be presented to the House negotiators soon for approval on that side (see the Washington Post’s report here). It is a bit early, but it is worth thinking about the legal effect of the amendment, if enacted, on the existing wave of litigation coming out of Guantanamo. Here is my first effort, but I welcome thoughts from Bobby or anyone else. My goal here is not to argue in favor or against the amendment, but simply to try to predict the amendment’s legal effects on current litigation.

(1) Retroactivity: If enacted, the amendment might eliminate federal court jurisdiction over existing as well as future cases coming out of Guantanamo, including Hamdan v. Rumsfeld, the case challenging the legality of the military commissions, and the Guantanamo Detainee Cases, which challenge the legality of the detainees’ confinement and their lack of rights to challenge their confinement.

Section e reads: “no court, justice, or judge shall have jurisdiction to hear or consider an application for the writ of habeas corpus filed by or on behalf of an alien outside of the United States … who is detained by the Department of Defense in Guantanamo Bay, Cuba.”

The current Guantanamo detainees might argue that this language cannot eliminate their existing cases, e.g., that it cannot operate retroactively. This is a complicated issue and one that the federal courts have wrestled with before in the context of previous amendments to federal habeas jurisdiction. So it is at least possible that all of the existing cases could go forward.

(2) Constitutionality of Military Commissions: Even if the existing suits go forward, this amendment would almost certainly remove the main constitutional argument made by Hamdan and others challenging the military commissions because it either authorizes the commissions outright or recognizes the President’s authority to establish such commissions. Hamdan and the detainees facing military commission trials will have to try their luck with due process arguments, which are much, much harder, especially given the creation of limited judicial review.

(3) Compliance with Geneva Conventions: Guantanamo detainees have challenged the adequacy of the Combatant Status Review Tribunals (CSRTs) which are used by the military to determine their status as an unlawful enemy combatant by alleging that these tribunals violate the Geneva Conventions. Detainees facing military commission trials have also made this same treaty-based argument. I think this argument that the CSRTs or the Military Commissions violate the Geneva Conventions may be in serious trouble. The amendment approves the CSRTs and military commission trials as long as they apply “such standards and procedures consistent with the Constitution and laws of the United States.”

The key missing phrase here: “treaties of the United States.” The D.C. Circuit, which has exclusive jurisdiction, can only review the CSRT and military commission procedures for violations of the U.S. Constitution and federal statutory law. The Geneva Conventions, as a treaty of the United States, cannot serve as the basis for that court’s review. Any attempt to invoke the treaty would run into the “last in time” rule, which holds the a later in time treaty trumps an earlier enacted statute.

In sum, the amendment is likely to be bad news for the existing litigation. But in a way, that litigation has served its purpose, by forcing Congress to clarify (and limit) the President’s policies toward the detainees. So while everyone lost a little bit, perhaps we can also say that everyone won as well?

Update: Full Text of Proposed Senate Compromise

by Julian Ku

Here is the full text of the proposed Senate compromise bill on detainee rights to challenge their confinement in federal courts, which I discussed below (thanks to Greg Fox for the link). I may have slightly different comments after reviewing the bill directly, but I must run to class…

The Senate’s Detainee Bill Makes Everyone Unhappy; This Must Be a Good Thing

by Julian Ku

According to this Washington Post report, the Senate may have reached a deal on the controversial “Graham Amendment” stripping federal courts of habeas jurisdiction over appeals by Guantanamo detainees (which Bobby and I have blogged about here and here and which SCOTUSBlog discusses here). (The full text is posted above).

    The bill on first glance seems pretty reasonable, especially since the Senate will demand that the bill be linked to the McCain Amendment establishing uniform standards for the treatment of detainees. But it is likely to make all sides unhappy.

    The Bush Administration is (wrongly, I think) opposing the McCain Amendment and is currently taking the position that the Guantanamo detainees have no constitutional rights cognizable in federal courts. The supporters of rights for Guantanamo detainees will hate the fact that this legislation confirms the constitutionality of trials by military commission. Moreover, while the compromise appears to confirm some federal court jurisdiction to review detainees appeals, it limits such review to the D.C. Circuit, which is likely to take a deferential view of such military commission trials and is less likely than the district courts of finding such trials constitutionally defective.

    So everyone loses, at least a little bit. This probably means, however, that the compromise is a good one. We’ll see.

    Federal Court Dismisses Claims Against Ethiopia

    by Roger Alford

    Last week the D.C. federal district court dismissed a class action lawsuit against Ethiopia. In the case of Nemariam v. Ethiopia, __ F.Supp.2d __ (D.D.C. Nov. 8, 2005), available here, Ethiopia allegedly expropriated bank accounts of Eritreans living in Ethiopia. Specifically, the allegation is that Ethiopia and its agents engaged in a systematic effort to seize the property of the Eritrean deportees, including seizing or freezing the deportees’ bank accounts and foreclosing on their properties and businesses.
    On remand from the D.C. Circuit, the district court held that Ethiopia enjoyed sovereign immunity under the FSIA, and that the expropriation exception, (28 U.S.C. 1605(a)(3)), did not apply. The most important aspect of the case is the holding that the claimants’ expropriated bank accounts were not in fact currently “owned” by the government.

    “Contrary to the plaintiffs’ argument, however, the plaintiffs’ property is not owned or operated by … the Ethiopian government….the plaintiffs’ property is a contract right as a depositor, not the actual funds that were originally deposited into the accounts. The funds, once deposited, become the funds of the bank, subject to the account holder’s contract rights…. [T]his distinction … is critical. So, rather than having property rights in the deposited funds, the plaintiffs’ property rights are actually the contractual rights they possess to have those funds returned to them. Accordingly, to establish that … the Ethiopian government own or operate the plaintiffs’ property, the plaintiffs must establish that … Ethiopia ha[s] assumed control over these contract rights and used them for their own benefit. But they have failed to make such a showing. The plaintiffs’ position is predicated on a belief that when funds were deposited into their accounts, they still have property rights in those funds. However, as already discussed, the property rights the plaintiffs possess is the contract right to the repayment of those funds…. Thus, any investment or use of the funds by … the Ethiopian government has not offended the plaintiffs’ property rights since those funds, until they are repaid, are owned by the bank, not the plaintiffs. Thus, because the plaintiffs’ argument is based on a false proposition, the argument fails as a result of its flawed foundation. “

    This conclusion appears to be a real stretch. It essentially suggests that claimants do not “own” the money in their bank accounts, only the contractual right to access the funds in those accounts. And since the government did not assume control of those contract rights, it did not take the money in those accounts and does not own them.
    This appears to be an overly formalistic approach to expropriation of bank assets. If the government imposes complete limitations on access to the funds in their accounts, it would seem that the claimants no longer effectively control those accounts and that those assets are currently owned and controlled by the Ethiopian government. To conclude otherwise would encourage governments to write laws denying account holders’ ownership of bank accounts, take confiscatory action just short of full ownership, and thereby achieve a taking without compensation.
    As it stands, the suggestion of the D.C. district court is that the Eritrean claimants never owned the money in their bank accounts, only the contractual right to them, and therefore no expropriation of those funds could have occurred.
    Funny, all this time I thought I actually owned the money in my bank and retirement accounts.

    Ken Anderson on ICRC Customary International Humanitarian Law Study

    by Peggy McGuinness

    Ken Anderson is the first member of the blogosphere to read every page of the 5,000 page ICRC study on Customary International Humanitarian Law (which we discussed here when it was published last spring). His thoughtful analysis is here. So why pay attention to the study?

    What does the Study mean in practical terms for matters of international humanitarian law? The view of the ICRC is that the Study “does indeed present an accurate assessment of the current state of customary international humanitarian law.” The ICRC therefore intends to “take the outcome of this study into account in its daily work.” (Kellenberger introduction, at xi.) The Study’s view of customary law will thus form the basis, for example, of ICRC challenges to the US practices regarding detainees. Beyond the ICRC, it will almost certainly be absorbed as authoritative by other non-governmental actors, international tribunals, and others. It will thus be cited as essentially binding authority in a wide variety of venues, ranging from courts to treaty negotiations. Because of the fact that customary law is, in principle, binding on all states even without formal consent, the implications of the Study being accepted as authoritative are, to say the least, weighty for international law. Finally, it should be noted, the Study may well have a very significant practical effect within US domestic legal practice, as it will surely be widely cited and, absent some clear dissent from the US, be accepted as the authoritative standard for the content of customary international law in Alien
    Tort Statute and other domestic cases that turn on international law.

    He identifies one of the central flaws in this project of “codifying” the content of customary international law by taking into account every action of every state (no matter how “micro” the state in question is, or how infrequently it engages in war):

    The flip side of this exhaustive inclusivity is that the views of larger and military powerful states are inevitably downplayed. Unsurprisingly, the views of the United States are the most downplayed – not from any ideological motivation, but simply as a result of a method that emphasizes including everyone’s views, and regards “views” as equally important if not, in the aggregate, more important than the facts of how parties fight. There is, in other words, a certain sense in the Study that in the battle over legal rules, he who writes the most memos wins.
    Ken and Tod Linberg are co-sponsoring a discussion of the study at the Washington, D.C. offices of the Policy Review-Hoover Institution this Wednesday, Nov. 16, for those seeking a primer on the issues and the study’s implications for the United States.
    The next big agenda item for the ICRC is the conference being convened next month to adopt a new emblem — the red crystal. I blogged about the emblem issue in May, but will have some updates as the conference nears.

    Yale Law Frets Over Alito

    by Roger Alford

    A parody of the recent New York Times article, “Yale Law Frets Over Court Choices It Knows Best”:

    NEW HAVEN, Nov. 8 – The morning after Judge Samuel A. Alito Jr. was announced as the president’s choice for the Supreme Court, some students and professors at his alma mater, the Yale Law School, were already hard at work – to defeat him.

    Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN with this instant assessment: “I’m a judicial radical, and I don’t think Alito’s conservative views fall within the mainstream of my constitutional vision.”

    A group called Law Students Against Alito was formed the same day. “There is a chunk of the population, probably a majority,” said Ian H.L.A. Bass, III, a founder of the group, “who are completely insufferable and pompous and frankly they do not want some working-class Sam from Newark on the Supreme Court. It’s beneath them.”

    Conservative students here said they were concerned that the Alito nomination would be a replay of what they called the savage treatment meted out to Judge Bork and Justice Thomas, who endured ad hominem attacks from members of the dysfunctional Yale family.

    The mood here appeared to be irrationally but predictably hostile. A few students who supported Judge Alito tended to make annoyingly traditional arguments that he was spectacularly qualified, noting that Alito has the most judicial experience of any nominee since Benjamin Cardozo. Some said, for example, that an ideology out of sync with the liberal ethos of Yale Law School should not in itself derail a candidate who was otherwise qualified.

    But the dominant view, based on a day of interviews at the law school, appeared to be that Judge Alito’s jurisprudence, while faithful to the Constitution, represented a betrayal of the law school’s liberal political values. For many, that was enough for a good borking.

    Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito’s 15 years of opinions with a jaundiced eye. “Alito is a careful carpenter,” Professor Gordon said. “The things are well built, but they are not beautiful. If only I had applied my hand to interpret the Family Medical Leave Act. What a sight you would behold! Soaring arches! Corinthian columns! A veritable Sistine Chapel of statutory interpretation.”

    Still, the happy memories of the Bork and Thomas hearings linger, and many of those interviewed said that they hoped the discussion of Judge Alito’s views would be robust, civil, and focused exclusively on his dissent in Casey.

    “Sadly,” said Professor Kronman, the former dean, “relations between Justice Thomas and the law school have not been as warm and cordial as I would wish them to be. The confirmation process left a residue of discomfort that has never completely drained, though I think it is dissipating. I believe that he felt, with whatever justification, that the school did not come out as strongly and consistently and institutionally in support of his nomination as he would have wished. I guess it stemmed from the fact that many here portrayed him as the devil incarnate. I just can’t imagine why he would not want to embrace us now.”

    The earlier nominations were a turning point for the law school, said Harold Hongju Koh, the current dean. “This kind of self-righteousness of Yale really emerged in full flower for the first time with the Bork and Thomas hearings.”

    A recent study in The Georgetown Law Journal suggested that Judge Bork’s assessment of the law school’s political leanings was true. The study analyzed 11 years of records reflecting federal campaign contributions by professors at the top law schools. Forty-three percent of law professors at Yale made contributions of more than $200, and 92 percent of those gave mostly or wholly to Democrats.

    Professor Shuck said, “The politics of Yale Law School and the other elite law schools is 95 percent left and 5 percent other … and they all teach corporations.” He said he counted perhaps four conservative professors on a faculty of about 70. “But of course, they still have to run the gauntlet of tenure.”

    Four students recently chewed over the Alito nomination in the gilded offices of The Yale Law Journal. Justinian de la Florence, another founder of the group opposing Judge Alito, said Yale law students, ipso facto, had an important role. “This really matters to our generation of little Supremes,” Mr. de la Florence said. “If these hearings are going to become a national conversation about how the Constitution should be interpreted, that can’t be a one-sided conversation. Yale must be at the forefront. The Bork hearings – they were a substantive conversation. Remember Ted Kennedy’s speech? The Thomas hearings were an embarrassment filled with character attacks from the likes of my faculty. It would be great if we had another Bork hearing. If only Alito would grow a beard and wasn’t so darn smart and likeable.”

    Pirates of the Arabian Sea

    by Roger Alford

    Although little noticed in the mainstream media, pirates are on the prowl along the Horn of Africa. In a short squib in the New York Times this weekend it was reported that “Somali pirates chased and attacked five ships in the last week in a sharp rise of banditry apparently directed form a “mother ship” prowling the busy Indian Ocean corridor…. Four vessels escaped, including the cruise ship Seabourn Spirit, which was carrying 151 Western tourists, but a Thai cargo ship was commandeered, bring to seven the number of vessels now being held captive with their crews by the pirates.”

    The International Maritime Bureau tracks these developments closely. According to a recent article by the bureau, it appears that Somalia is to piracy today what Afghanistan was to terrorism yesterday: a safe haven for criminality.

    “After a quiet spell of nearly two years … serious attacks by heavily-armed pirates have resumed: 25 in the past six months.… Somalia occupies a strategic location on the Horn of Africa. To the north is the Red Sea and the Suez Canal with its heavy traffic of shipping between Europe and Asia. The former Italian colony is close to anarchy, without a functioning national government for the past 14 years. Captain Pottengal Mukundan, Director of the IMB, appealed to naval vessels in the region to come to the aid of ships under attack. ‘At the very least,’ he said, ‘they can prevent the hijackers from taking these ships into Somali waters. Once the vessels have entered these waters the chances of any law enforcement is negligible.’ Unless international action is taken against the pirates … Somalia could become a haven for criminals ‘who may feel encouraged to extend their activities in the wider region.’”

    Perhaps what is most newsworthy about these regional episodic attacks is that they are precisely that: limited and irregular. Today we fret endlessly about the rise of terrorism and the threats of madmen bent on destroying Western society as we know it. But pirates? Aren’t those bearded bandits quaint vestiges of a lawless age when barbarians trolled the Barbary Coast in lust of lucre? By and large, yes.

    At the dawn of our country Thomas Jefferson would sooner go to war with the Pasha of Tripoli then continue to pay “tribute” to stave off state-sponsored piracy. The Barbary Coast War (a.k.a. the Tripolitan War) of 1801 was fought because Jefferson took a stand and said no more. Assymetrical attacks on our merchant marine vessels were finally met with naval war power. The result? In the words of Robert McHenry, “State-sponsored piracy in the Mediterranean was ended…. The Tripolitan War … first thrust the United States into the unsought role of enforcer of international law against rogue states in league with terrorists.” Today the Marines sing of their exploits on the “shores of Tripoli,” a reference to our forgotten war against state-sponsored piracy.
    Is there a lesson in this for us today? Perhaps one day state-sponsored terrorism will be viewed as a quaint historical oddity. For now, we are vexed and perplexed about how best to respond to the barbarians at our gates. But assymetrical attacks on civilians are finally being met with war power. Of course we will never eradicate terrorism fully. But if the international community continues to take a stand, perhaps someday terrorist attacks will no longer garner the patronage of governments. If so, one day they truly may become parochial and episodic.

    Another Possibly Meaningless Treaty? Cybercrime Convention Nears Passage in Senate

    by Julian Ku

    The U.S. Senate’s Foreign Relations Committee reported out the Council of Europe Cybercrime Convention on Thursday. I don’t know enough about cybercrime to know if this Convention is important (See here for a primer), but it is worth noting that the treaty does not appear to require the U.S. to modify any of its domestic laws. All of the treaty’s requirements appear to be already reflected by existing U.S. criminal laws (see here for the President’s Letter of Submittal to the Senate) and the U.S. has reserved to any departures from existing U.S. law, including existing state law, in a familiar “Federalism Reservation” that I discussed earlier here in another context.

    In an earlier post, I called these kinds of treaties “possibly meaningless” because, on the U.S. side, they don’t require any action by the U.S. government or any alteration of existing U.S. law. But this is obviously an exaggeration. The real significance of this treaty will be to serve as a focal point for other countries to modify or alter their laws governing cybercrime, which is still a relatively new area of law. From a purely U.S. perspective, though, the treaty is a no-brainer, since it doesn’t require any U.S. action but might get other countries to alter their laws and behavior. That’s a good deal if you can get it.

    Liberia Elects Woman as President, a First for Africa

    by Roger Alford

    Ellen Johnson-Sirleaf was elected as president of Liberia, the first democratically-elected female president in Africa. Johnson-Sirleaf won with 59 percent of the vote. When asked whether Africa is prepared for its first female president, Johnson-Sirleaf said, “Africa is ready for a female president… Women have the education, the character, the competence, and the integrity to lead the nation.” Nigerian politician Sarah Jubril was even more exuberant: “It’s a historical phenomenon, which is going to be an example to other African countries… I could scream my heart out!”

    By chance today I am at Cardozo Law School speaking at a conference on “International Mediation in Times of Conflict: Lessons from Public and Private Dispute Resolution.” The guest of honor is Kenyan female human rights advocate Betty Kaari Murungi. She received the 2005 International Advocate for Peace Award. (Previous recipients include Richard Holbrooke, Bill Clinton, Desmond Tutu, George Mitchell, and Even Ensler). Murungi celebrated the news of Johnson-Sirleaf’s election saying, “The women of Liberia must be celebrating today!”

    Indeed, with Condi Rice, Angela Merkel, and Ellen Johnson-Sirleaf now in positions of great leadership, 2005 is shaping up to be a vintage year for women in politics.

    A Tentative Defense of the Graham GTMO Amendment

    by Julian Ku

    Here is the full text of the “Graham Amendment” Bobby helpfully pointed out yesterday. The Washington Post has an analysis here. I must run off to help interview candidates interviewing for faculty positions, but let me add a few thoughts. Not surprisingly, I’m not reflexively opposed to this amendment, at least on first glance.

    (1) Congress plainly has constitutional authority to regulate the scope of federal court jurisdiction over the Guantanamo detainees. As Bobby pointed out, those detainees may certain have constitutional habeas rights, but the scope of those rights are somewhat uncertain and courts will certainly give Congress broad discretion to regulate those rights.

    (2) The amendment would create congressional oversight over the procedures governing the detention of the Guantanamo detainees because the Defense Department would have to submit their procedures for determinations as to the legal status of those detainees to Congress as well as any changes in the procedure.

    (3) The most controversial part of the Amendment is the part removing the jurisdiction of the federal courts from “any action” based on the DoD’s new policies on detention or “any action challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant.”

    This provision may indeed remove federal courts from the process of reviewing the detention of Guantanamo detainees. But it is worth remembering that it was never clear that the federal courts had much authority in that area in the first place, and that the Supreme Court has relied on its sense that Congress had approved federal court intervention.

    Basically, the Amendment replaces judicial review of the fairness of detainee detention procedures with congressional review. I think this does provide a non-trivial check on the President’s authority, but I’ll have to think more about whether this check is enough to ensure good policy and fundamental fairness.

    The Graham Amendment, GTMO, and Habeas

    by Bobby Chesney

    A very important development in the Senate today, one that may have profound consequences for the pending habeas litigation involving GTMO detainees. The development concerns an amendment to S.1042 (the ’06 Defense Department Authorization bill) offered by Senator Graham. The Amendment is No. 2516, and its text is available here.

    Consider first section (d)(1) of the amendment, which amends the federal habeas statute (28 U.S.C. 2241) to include the following language: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States [as defined in 8 U.S.C. 1101(a)(38)] who is detained by the Department of Defense at Guantanamo Bay, Cuba.” Wow. This would overturn the Supreme Court’s 2004 decision in Rasul v. Bush, which found a statutory basis for extending habeas jurisdiction to GTMO. In doing so, it arguably would bring to an end all 173+ habeas petitions currently pending on behalf of several hundred GTMO detainees, including, notably, the Hamdan case as to which the Supreme Court recently granted cert, and also the pending D.C. Circuit appeals from the conflicting lower court decisions by Senior Judge Green (In re Guantanamo Detainees, finding that detainees have constitutional rights) and Judge Leon (Boumediene, reaching a contrary conclusion). Now that does not mean that there is no possibility for the detainees to pursue habeas; they still may attempt to establish a constitutional basis for habeas, notwithstanding Johnson v. Eisentrager. Certainly there are elements of Justice Steven’s opinion in Rasul that might support such an argument, but the question is far from clear (and might be impacted by the changing composition of the Supreme Court; Stevens was joined by Souter, Ginsburg, Breyer, and O’Connor, and Kennedy concurred in a separate opinion).

    Now, this is not all that the Graham amendment does. It also has the effect of conferring Congressional approval on Combatant Status Review Tribunals as the proper vehicle for determining whether a detainee is properly classified as an “enemy combatant.” The amendment permits a limited form of judicial review of CSRT determinations, with the D.C. Circuit permitted to review whether the tribunal in a given instance acted “consisent with the procedures and standards” governing that process.

    As I understand it, the Graham Amendment was adopted 49-42 today. Whether it will become law ultimately, of course, is far from clear for now. Note that nine senators were not present during this vote, and that Senator Bingaman (D-NM) is expected to offer an amendment on Monday that would remove the habeas-stripping portions of Graham’s amendment.

    Gonzales Criticizes Reliance on Foreign Authority

    by Roger Alford

    Attorney General Alberto Gonzalez gave an important speech at the University of Chicago Law School yesterday strongly criticizing the recent trend of reliance on foreign and international authority. Gonzales made several key points:

    1. Sometimes reliance on international law is appropriate. “Judges and lawyers routinely use international law in other contexts. For instance, judges and lawyers seeking to interpret our treaty obligations routinely consider the interpretations of our treaty partners. Sometimes our statutes direct us to consider international law, as when the Foreign Sovereign Immunities Act creates jurisdiction over cases involving property “taken in violation of international law,” and foreign law will often be relevant in the litigation of public and private contract disputes involving foreign parties. All this is as it should be….”

    2. Sometimes reliance on foreign law is appropriate. “I agree that foreign law has a role to play in the interpretation of the Constitution, but I think it is a limited one. The roots of our legal system are in England, and so we naturally look to English common law of the Founding era to help us understand the Constitution.”

    3. The trend is not limited to a few isolated cases. “The increasing frequency of such references, and length to which they are discussed in opinions, suggest to me that the incidents are not isolated and that such references are not added as a mere curiosity, but as an extra weight on the scale.”

    4. Reliance on foreign precedent undermines the Constitution’s clarity and certainty. “[T]he sheer difficulty of choosing potentially relevant precedents from the vast array of available foreign-law sources means, I believe, that any use of foreign law will tend to undermine the clarity and certainty of our Constitution.”

    5. Reliance on foreign precedent undermines the Court’s legitimacy. “[M]ore fundamentally, the use of foreign law poses a direct threat to legitimacy, including to the legitimacy of the Court itself….Reliance on foreign law… place[s] in jeopardy the reverence Americans have for the laws and for the institution of the Supreme Court….The Court has earned the respect of the people. They expect that it will do its best to give a fair and impartial interpretation to our sacred text, the Constitution. The Court risks squandering that reserve of goodwill if it takes actions seen as inconsistent with that expectation.”

    6. Comprehensive comparative analysis is impossible. “If we accept that foreign law could properly be used in construing the meaning of the Constitution, at a minimum, surely we would only want to do so in a way that “comprehensively examines ‘all relevant’ international sources.” But any such approach is probably unachievable. It may be impossible for even the most conscientious judge or lawyer to avoid being selective, or at least arbitrary, in the use of foreign law.”

    7. Comparative analysis must take into account context. “Beyond the particulars of a cited provision, moreover, the legal systems of the world also vary considerably, each reflecting the unique history, traditions, and values of its own citizenry – as ours reflects the uniqueness of America.”

    8. The trend poses serious problems for litigators. “The Solicitor General and the lawyers in his office understand that foreign-law materials might influence the vote of one or more members of the Court, and we may feel obliged as dutiful advocates for our clients to cite such materials. Thus, the growing tendency by some members of the Court to look to precedents from overseas in construing the Constitution has a direct impact on our work. Frankly, I don’t know how we begin to identify the relevant universe of foreign sources and precedents that might be deemed persuasive by one or more Justices.”

    9. The trend poses serious problems for foreign relations. “The conduct of America’s foreign affairs has been entrusted to the Executive Branch, not the courts, precisely so that our Nation may speak with one voice in this delicate area. The Court itself has wisely recognized this principle many times over the history of the Republic. Yet, some justices seem to acknowledge that they refer to foreign law as an attempt at diplomacy.”

    10. The political branches, not the courts, must engage in foreign policy. “The Court’s interest in foreign-law sources may also be based on a well-intended desire to make the Court look less isolationist. I am not certain that the isolated citation of a foreign decision, usually in the form of dicta, will have much of an effect. But in any event, the Judiciary is not supposed to have a foreign policy independent of the political branches. The political branches, as representatives of the people, are to decide the Nation’s foreign policy, and they can enact positive law based on foreign experiences or laws, which the Court can then interpret.”

    11. The power of judicial review is based on the consent of the governed. “We must consider the source of the judiciary’s power to strike down laws as unconstitutional. The Founding Fathers built our Constitution on the radical and profound principle that power has one legitimate source: the consent of the governed…. Reliance on foreign law thus threatens to unmoor the Court from the proper source of its authority for judicial review.”

    12. Contemporary community standards must be our own. “Let’s assume that the Supreme Court may properly consider contemporary societal standards to some extent in interpreting the Constitution. Even then, I question how the standards of anyone other than the people of the United States could legitimately be relevant to determining the will of the American people. If we look abroad, whether at expressions of the popular will of foreign nations or the views of foreign jurists or diplomats, in what sense is it credible to say that, in doing so, we are ascertaining the will of the American people? To allow the views of foreign judges and legislators, who are under no oath to uphold the United States Constitution, to govern here is the antithesis of democratic accountability.”

    13. The political branches, not the courts, should consider reliance on foreign experiences. “[W]e must use a reliable method for separating the good from the bad. I suggest we do it, as Madison did it, through the political process, not through the courts. A useful example is found in the evolution of the American polling place… State and federal lawmakers responded by adopting the so-called “Australian Ballot” for use in American elections. It has since become a hallmark of American Election Day. Thus, a sensible idea from the other side of the world was weighed and ultimately embraced by our elected representatives, not imposed by the courts. It is one thing for the people’s representatives to consider and adopt laws that draw on the experience of foreign nations. It is quite another for unelected judges, charged with determining the will of the people as they expressed it in the Constitution, to rely on foreign experience as a basis for rejecting the actions of those elected representatives.”

    You should read the whole speech. (A more readable reprint is here.) It is worth serious consideration.

    UPDATE: You can listen to the speech here. (Tip: Jacco Bomhoff at Comparative Law Blog)

    Federal Court Refuses to Vacate NAFTA Award in Loewen

    by Roger Alford

    One of the most important NAFTA Chapter 11 decisions is Loewen v. United States. The Canadian company brought a $725 million claim against the United States arguing that a Mississippi state court judgment constituted a violation of NAFTA. The claim questioned whether the state court appeals process (particularly the appeal bond) could constitute an unlawful investment restriction under NAFTA. The arbitral tribunal dismissed the claim on jurisdictonal grounds. A copy of the final award is here. (The full docket sheet is here).

    The Canadian petitioner sought to have the award vacated pursuant to the Federal Arbitration Act. Last week, the D.C. district court dismissed the claim as untimely. A copy of the decision is here. The court ruled that Loewen should have filed after the final award, not the decision on reconsideration. Sounds mundane, but there is a fundamental question of procedural fairness embedded in the dispute. NAFTA expert Todd Weiler has more:
    The judge’s reasoning, unfortunately, leaves much to be desired. In a nutshell, the application was dismissed for being filed too late, given that the final award was issued in June 2003 and the application was not filed until December 2004. While it is true that the application was filed long after the three-month statutory bar had expired, NAFTA watchers will immediately note that the reason Loewen took so long to file his application was that the Tribunal failed to provide reasons specifically addressing the disposition of his claim in its Final Award. It then proceeded to take an unacceptable period of time to issue a clarification that succinctly (to put it charitably) ended the matter. Loewen’s application was made within three months of his finding out that he indeed did lose. Obviously this should have been the appropriate date against which the time bar should have been applied.

    For the judge to actually dismiss Loewen’s application for wont of timeliness simply defies logic, because this reasoning would have required Loewen to file his application before knowing whether one even needed to be filed. If this decision is the final word on the saga of Loewen’s NAFTA claim, it will perhaps be fitting. After having been denied justice in Mississippi, and having received a very questionable decision at the hands of a NAFTA Tribunal, is that surprising that this DC judge would have decided any differently?

    Hopefully this decision will not be the last word, however, for while the question of whether his annulment application should succeed remains open, there is no doubt that – at long last – Mr. Loewen should have been given a full and fair hearing on the merits of his case.
    Weiler may be right, but there is a question that obviously comes to mind when you have $725 million on the line: doesn’t the better part of discretion suggest that you file a claim for vacatur after the original Final Award and the subsequent Decision on Request for Reconsideration? One of the two motions likely would be procedurally barred, but not both. The Motion to Vacate did not explain its failure to file earlier, stating without explanation that the U.S. request for clarification “precluded Mr. Loewen from seeking to vacate the Award at that time.” How so?

    New Defense Department Directive on Detainee Interrogations

    by Julian Ku

    As the Washington Post reports, the Defense Department has released a new directive to the military on rules governing the interrogation of detainees held in U.S. military custody around the world. According to the Post, the directive has been hotly debated within the administration, especially as Congress is currently considering the McCain bill to codify standards on the treatment of detainees. Here is the key paragraph, from my quick review.

    It is DoD policy that:

    All captured or detained personnel shall be treated humanely, and all intelligence interrogations, debriefings, or tactical questioning to gain intelligence interrogations, debriefings, or tactical questioning to gain intelligence from captured or detained personnel shall be conducted humanely, in accordance with applicable law and policy. Applicable law and policy may include the law of war, relevant international law, U.S. law, and applicable directives, including DoD Directive 2310.1, “DoD Detainee Program (draft), upon publication (reference(d)), instructions or other issuances. Acts of physical or mental torture are prohibited.

    The Directive also prohibits the use of dogs to harass detainees, imposes the same restrictions on foreign government or non-military interrogators and outlines procedures for oversight of these procedures and implementation.

    This is a good start, and it is better than previous efforts, but I think it is probably not enough. The devil is in the details. “Applicable law and policy” seems a bit too vague for my taste and the vagueness is not helped by the fact that the directive “may include” relevant international law. The DoD should (and will in its Directive 2310.1 ) spell out what is permitted and what is not.

    Still, I am coming around to the notion that the McCain Amendment is the best way to handle this. Ideally, the McCain Amendment would give a statutory framework and give guidance to the DoD and courts on how to interpret the effects of the Torture Convention and customary international law. The objections raised by opponents of the McCain Amendment are that it would import fuzzy and vague notions of international law, but that is going to happen anyway. It is better for this importation to happen through Congress, which will give some more substantive guidance on what the standards are, then through the executive branch or the federal courts.

    Alito’s Senior Thesis on the Italian Constitutional Court

    by Roger Alford

    As Julian reported yesterday, Samuel Alito’s 1972 Princeton senior thesis, “An Introduction to the Italian Constitutional Court” is now in the public domain. It is available here. The Daily Princetonian has a short summary here.

    There are several interesting aspects of the thesis. First, it is quite a remarkable piece of work. It is no small feat for a twenty-two-year-old to have sufficient facility in another language and sufficient analytical prowess before law school to undertake such a constitutional analysis. His thesis advisor said he has only kept a half-dozen theses in all his years, and Alito’s was one of them. “Sam just had to start from scratch… I’ve used it over the years in my work.” Alito is so detailed that he examines the professions of the justices’ fathers in hopes of discerning clues as to their judicial philosophy. “I was able to discover the occupation of the fathers of 22 of the 33 justices. Not unexpectedly, the middle class professions are well represented….For the rest, one justice was the son of a railroad station master, one of a clerk, and one of an Army fencing master.” (p. 38-39).

    On the impact of change in court personnel, Alito discussed Justice Giuseppe Branca’s 1970 remarks approving “how much bolder and more liberal the Court had become during the past two years” and noted that part of the explanation was the change of a few justices on the court. Quoting Branca, “It is not necessary for a liberal or ultraliberal justice to replace a conservative; it is enough for the conservative to be replaced by a man whose conservatism is less political and less stern, a man who is more humane and more sensitive to new social outlooks.” (p. 26). Alito later described the Branca Court as one that was “bold, reformist” and “unafraid to take on sensitive Church-State issues … unheedful of precedent.” (p.73).

    There is surprisingly little by way of comparison between the Italian courts and other courts. There are a few explicit comparisons, such as Table 3.4 comparing the average ages of justices and years of eligible service in Italy and seven other countries. (p. 52). But mostly the comparisons are passing remarks. For example, he states that “The Italian judiciary is organized very differently from America’s or Britain’s. In Italy, a judgeship is not the culmination of a career as a practicing attorney; no judges stand for election; judgeships are never distributed for political reasons.” (p.44). Elsewhere he stated: “Engaging in the sort of procrustean construction which is common for the United States Supreme Court, the Italian Constitutional Court interpreted article 553 not to forbid the dissemination of all information about birth control.” (p.99). In describing the different roles of precedent in civil and common law countries, Alito remarked, “The Italian Court may cite a precedent in every third case whereas the average for the American Court may be closer to every third sentence.” (p. 120).

    By far the most important chapter is his analysis of church-state decisions in Italy. The chapter includes discussion of birth control, marriage, religious oaths, freedom of expression, divorce, and adultery. Particularly useful is his discussion of what we would today call a “constitutional moment” of liberalization in the late 1960s. “What caused the Court to change direction in the Church-State area in the late sixties is problematic. The change in this area corresponded to the Court’s general liberalization during the presidencies of Sandulli and Branca. The explanation may be in personalities of Sandulli and especially Branca, a few substitutions on the Court, the swing leftward in the sixties of Italy’s governing coalition, the Vatican’s decision after the death of Pope Pius XII to play a less active role in Italian politics… or simply the drift of public opinion in Italy and the world.” (p. 101-02). Alito concludes the chapter by quoting at length the Vatican’s criticism of the leftward shift in the Court’s jurisprudence on divorce. (p. 112-13). Quoting from Civiltà Cattolica:

    We should ask if this is what the Italian people, who had just regained their liberty, desired when … they established that the new Constitution would be protected against Parliamentary violation by a supreme and impartial organ of Constitutional justice…. We should ask at the same time whether these eminent men, when they occupied university chairs or sat on an ordinary court, instead of applying and teaching ‘the same law for all,’ taught or applied above all the political ideas of the party or fraction of a party to which they belonged.”

    Alito likewise appears critical of the Court’s liberalization in the late 1960s, sensitive to the importance of consistency in constitutional decision-making. “The Constitutional Court has been far more willing than the Court of Cassation to disregard ‘precedent.’ The Constitutonal Court’s quick turn-abouts on the adultery and birth control laws … are glaring examples. They are testimony to the weak place ‘precedent’ holds in Italian law; it is difficult to think of two comparable reversals by the American Supreme Court.” (p. 120-21).

    Alito concludes the thesis with a quip about future judicial activism of the Italian Constitutional Court: “The Court is likely to retreat somewhat in the next few years from the advanced position Branca staked out. But in a country in which Parliament is often deadlocked and with the taste of power in its mouth, the Court is unlikely to ever renounce an active role.” (p. 131).

    We cannot make too much of a senior thesis written over thirty years ago. But one thing is for sure, from a very early date one can discern that this man Alito is a heavy-weight.

    Alito on Constitutional Comparativism

    by Julian Ku

    As I mentioned previously, U.S. Supreme Court nominee Samuel Alito’s senior thesis on the Italian Constitutional Court, written during his senior year at Princeton, has been missing from the Princeton archives. Today, the Daily Princetonian reports that Alito’s thesis adviser has sent a copy of it to the university library and the Daily Princetonian has a brief summary here. At the very least, it shows that Alito has an above average familiarity with foreign legal systems, in particular the relatively new Italian experiment with judicial review of constitutional issues.

    It may be reading a bit much into this, but I actually think his early interest will prevent him from being overawed by fairly aggressive modern claims about the necessity of incorporating international and foreign law into U.S. constitutional law. He certainly won’t be hostile, but I think his early experience with constitutional comparativism will also give him a sense of its limitations.

    In any case, what I really want to know: where is Alito’s “supervised analytic writing” from his time at Yale Law School? From what I know of my alma mater, there is pretty much zero chance that a Yale Law professor has kept a copy of his thesis for 30 years. Will the Senate issue a subpoena?

    ICJ Campaign Over: New Zealand, Morocco, and Mexico Win

    by Julian Ku

    The General Assembly and Security Council has selected five members for the next ICJ term. One of members, Thomas Buergenthal of the United States, is a returning judge. The rest, however, are all newbies. As I discussed before, some countries not effectively guaranteed a seat by the Security Council have launched semi-aggressive efforts to get their members on the Court. In that race among smaller countries, New Zealand, Morocco, and Mexico appears to have won. An excerpt from the official press release follows:

    THE HAGUE, 8 November 2005. Yesterday, the General Assembly and the Security Council of the United Nations proceeded to the election of five Members of the International Court of Justice (ICJ) for a term of office of nine years, beginning on 6 February 2006.
    Judge Thomas Buergenthal (United States of America) was re-elected as Member of the Court. Messrs. Mohamed Bennouna (Morocco), Kenneth Keith (New Zealand), Bernardo Sepúlveda Amor (Mexico) and Leonid Skotnikov (Russian Federation) were elected Members of the Court with effect from 6 February 2006.

    It is worth reminding readers of our blogosphere-exclusive horse race analysis from a previous post here. Mexico took the uncontested Latin American seat. Morocco beat out Niger and Tunisia for the Africa seat. The only tough race was between New Zealand and Spain, and it looks like New Zealand’s aggressive campaigning paid off.

    Les Émeutes de Paris

    by Roger Alford

    The best place to go to see what the blogosphere is saying about the Paris riots is here. The right hand column has the most popular bloggers discussing the riots. The best list of news summaries regarding events in France is here. The best editorial I’ve seen on the riots is by Mark Steyn, available here. The best single article I have read explaining why Paris is burning is here.

    One of the best recent background studies of Muslims in Europe is Joel Fetzer and Christopher Soper, Muslims and the State in Britain, France, and Germany (Cambridge 2005), available here. According to Fetzer and Soper:

    In contrast to Britain … France has been far less accommodating to the religious needs of Muslims. France has rejected multiculturalism as an appropriate educational model in the state schools. Aside from [a few] short lessons … French secondary schools learn nothing about Islam…. French Muslim leaders estimate that “hundreds” of Muslim young women have been expelled from public schools for refusing to remove the hijab. These young women are then forced to study by correspondence, rely on volunteer Muslim tutors, or abandon their education altogether…. The state has been vigorously secular and opposed to the notion that public institutions should be made to assist the religious practices of Muslims.”

    The worst statistic I have seen is the spread of rioting as calculated by the loss of cars. The first three days of riots saw an average of 24 car losses per day. But this Friday there were 897 car losses, then 1,300 on Saturday, and 1,408 on Sunday. We can only hope the riots will not continue to spread at this pace.

    UPDATE: Several comments criticize my reference to Mark Steyn’s editorial. On reflection I can see why. I recommended it only because it strongly expresses the lack of assimilation and recognition of Muslim groups in France, and the impact that is having and will have in the future for France. But I agree that it is over the top in other regards, such as asserting that the future of Pakistan is more hopeful than Denmark or that this is a modern day Moorish battle akin to a new Dark Ages. Fiona de Londras at Mental Meanderings points to a better article in the Washington Post stating the same point without the hyperbole. She also has a nice critique of Steyn’s piece on her blog which is worth a read.

    An Axis of Evil in Latin America?

    by Roger Alford

    In a roundtable interview of President Bush with foreign print media just prior to his trip to Argentina, Bush was asked the following question by a foreign correspondent:

    “What do you think about the [prospect] of–in the Bolivian election, the victory of an overtly leftist candidate, Evo Morales, of his peasant movement? And in that case, are you worried about a possible ‘axis of evil’ in Latin America–Venezuela and Bolivia?”

    To which President Bush responded:

    The thing that we’re interested in is fair elections, free and fair elections where people have the chance to express themselves at the ballot box…. And so we will see how the people vote…. And that’s all you can ask. And then the people will decide who they want. And that’s what democracy does…. Sometimes you’ve had different forms of government in our own hemisphere and around the world, where the people don’t decide but an elite decides, a handful of people get to decide the the fate of the people. And that, throughout history, has led to resentment and hatreds and turmoil and conflict…. [O]ne of the universal truths is democracies lead to peace. Democracies don’t fight each other….I believe freedom is universal. It’s not contained within one country or one religion or one type of person. There’s a universality to freedom. I believe mothers around the world desire their children to grow up in freedom. It doesn’t matter whether you’re Muslim, Christian, Jew, Hindu.

    It is an interesting response. Bush appears to be stating that democratic societies can and should flower in all soils and that the United States must accept a wide range of results from such elections. If a democracy freely and fairly chooses a far left candidate like Hugo Chavez, or a far right Islamic fundamentalist candidate in the Middle East, so be it.

    Bush is asserting that all democratic societies belong to an axis of freedom, not evil.

    For Loyalty, for Irrationality, and for Yale

    by Roger Alford

    As I reported two weeks ago, Ben Stein is experiencing cognitive dissonance. He knows he should not give to Yale. He knows his beneficence is better channeled to more worthy and needy causes. Two weeks ago he had the temerity to note that since it was virtually meaningless to give to Yale, why bother? Better, he concluded, to give to other charities where his gifts do far more good.

    Well, Stein continues to experience cognitive dissonance, but now he has concluded that he just has to give to Yale. He can’t helpful himself. In a follow-up article in the New York Times, he writes:

    “They were good to me. They were a family to me. They let me take a film class from Stanley Kauffmann, the great film critic, that changed my life and set my trajectory for eventual Hollywood landing. They went far, far beyond what I could have expected. I shed bitter tears when I left the Sterling Law Buildings. So here’s my point, if I may: It is probably not an economically rational act for me to give my few shekels to mighty, multibillionaire Yale. It would be far more rational for me to … give them to smaller charities. But not all decisions are rational. Yale went far beyond the rational to offer me a place back when I dropped out. Yale went far beyond the rational to be as generous with financial aid as it was. … I owe Yale for what it did, and what it let me do. There are ties that are more than rational, more than sensible. They are the mystic chords of memory to which Lincoln referred. I feel them about Yale, just as I feel them about many people and places I remember in my life. (As one might say, in my life, I’ve loved them all. ). So, God bless Mr. Swensen. God bless all those who wrote to me agreeing with me about Yale and its endowments, but there are some ties that even economic theory cannot break. I’ll keep giving to Yale… Not everything is about reason.”
    So Stein now accepts that he should not give to Yale Law School as a purely rational act, but that he has a sense of deep loyalty to the institution, and he just can’t help it. They were good to him, so he feels duty-bound to return the favor.

    Fair enough. Loyalty is a powerful and worthy motive. It causes us to serve those institutions near and dear to us, and neglect the rest. A member gives to his or her local church or synagogue knowing that it sustains the institution while also providing an important source of help and hope to those who come to it in desperate need. For such a member that gift is a loyal and rational act.

    If Yale has already won Ben Stein’s money, what are Richard Levin and Harold Koh to do to save Ben Stein from himself? Their endowment is growing by $6 million per day, so how can they in good conscience ask for money from the likes of Ben Stein? The answer is simple: Make his gifts rational. He knows he should be giving to more worthy causes, but he has this irrational need to give to Yale. If Yale Law School is so deeply committed to the cause of liberty and justice, it can redirect his irrational gifts to further human rights and civil liberties in the world. Yale Law School should earmark alumni gifts in such a way that donors can feel that giving to it is an act that is both loyal and rational.

    This past week President Levin displayed particular sensitivity in making alumni giving more rational when he convinced a donor to give $100 million to make tuition free for music students, rather than steer the funds to less needy causes in the sciences or medicine.

    So if Ben Stein is taking leave of his faculties, must human rights scholar and advocate Harold Koh do likewise? If it is irrational to give to such an unneedy cause, is it not moreso to ask and to take? It would be odd indeed for Yale Law School to fully embrace rational choice and human rights … except when it comes to alumni giving.

    Or perhaps Koh is at peace with himself thinking, “God bless Mr. Stein. I’ll keep asking for Yale. Not everything is about reason.”

    Related links:

    The Roberts Court Wades into Foreign Affairs

    by Julian Ku

    The U.S. Supreme Court will hear three important foreign affairs and international law cases this term (see here). It granted certiorari today in Hamdan v. Rumsfeld which will decide the legality of military commissions under the U.S. Constitution and the Geneva Conventions (which I discussed here). It also agreed to hear two cases testing the domestic judicial enforceability of the Vienna Convention on Consular Relations, which was the treaty at issue in Medellin (which I blogged incessantly about here) (thanks to Lyle Denniston of SCOTUSBlog for the heads up).

    The Hamdan case is obviously important, but the two Vienna Convention cases are not insignificant either. The Court will decide a number of lingering questions about the domestic legal status of the Vienna Convention on Consular Relations, a treaty of the United States. It may also reach the question left unresolved by Medellin, e.g. whether the International Court of Justice’s judgments are directly enforceable in domestic court. The questions granted cert are (roughly):

    (1) Whether the treaty creates individual judicially enforceable rights for foreign nationals;
    (2) Whether the treaty rights, if violated, allow or require the suppression of evidence seized by police in violation of those treaty rights (Mirandazing the Vienna Convention);
    (3) Whether state courts can interpret the Vienna Convention in ways contrary to the interpretation of the same treaty by the International Court of Justice.

    Roper v. Simmons and Our Constitution in International Equipoise

    by Roger Alford

    For those of you interested in constitutional comparativism, my latest article, Roper v. Simmons and Our Constitution in International Equipoise, 53 UCLA L. Rev. 1 (2005) was just published and is now available on SSRN here. It essentially is a postscript to my earlier (and much longer) article, In Search of a Theory for Constitutional Comparativism, 52 UCLA L. Rev. 639 (2005), available on SSRN here.

    The latest article makes two essential points. First, it argues that the Supreme Court in Roper is moving away from a majoritarian paradigm in Eighth Amendment jurisprudence to a natural law approach, with all the attendant problems associated therewith. I argue that:

    “The Court’s references to comparative experiences are best understood as objective signposts in the Court’s search for constitutional limits grounded in natural law…. If Glucksberg defines the objective limitations on substantive due process, Roper defines the objective limitations on cruel and unusual punishment. It prohibits excessive sanctions based on the “objective indicia of [a national] consensus” confirmed by “fundamental rights” affirmed by “other nations.”… The difference of course is that Glucksberg looks backward and inward, while Roper looks forward and outward….Roper’s benchmark for natural law is the shifting current of the enlightened present, not the abiding wisdom of the blinkered past. What gives one pause about Roper is that it is unclear whether the objective indicators proffered impose any significant limitations on the Court. Objectivism is invoked, but it has no purchase.”

    Second, it more broadly suggests that the Court in Roper may be expressing a willingness to distribute international values liberally throughout our constitutional jurisprudence to ensure foreign and and domestic equilibrium. As Justice Ginsburg put it at the ASIL annual meeting this spring, comparative experiences are indicators of “common denominators of basic fairness governing relationships between the governors and the governed.” Thus, Roper may signal a new methodology, one of “international equipoise.” If so, then the consequences may be quite significant:

    “Plotting constitutional rights based on their international disequilibrium shows how this new interpretive medium offers something for everyone. Social conservatives no doubt will be intrigued by an interpretive device that undermines Roe v. Wade, chips away at the wall of separation between church and state, and offers only halting support for gay marriage. Libertarians will welcome an approach that makes greater room for personal choice on issues such as polygamy, euthanasia, and property rights. Law and order conservatives will welcome a rethinking of the exclusionary rule, the need for a Miranda warning, and the freedoms we grant neo-Nazis to spread their hate. Plaintiffs’ lawyers will delight in possible new causes of action for defamation, while defendants will thrill at a curtailment on tag jurisdiction. Liberals will embrace the abolition of the death penalty, enhanced protections for welfare and education rights, greater limits on associational rights to discriminate, and firm support for gun control. A constitution in international equipoise has the potential to become a great political anodyne, offering soothing hope for past constitutional failures. Virtually every group can benefit from robust constitutional comparativism. But, of course, it also risks becoming a great political irritant, upsetting settled expectations of constitutional doctrine. Virtually every group can lose from constitutional comparativism, although at present its patrons are from the left as the protesters howl from the right. But if Roper portends the loss of Roe, the left will rue this day.”

    I conclude on a note of caution, contending that although the Court in Roper is confident that comparative references do not lessen fidelity to the Constitution, it is by no means certain that others share this confidence. This is no small matter, for as Richard Fallon has admonished, “a crucial aim of constitutional theorizing is to identify interpretive principles that others can reasonably be asked to accept.”


    by Roger Alford

    That is a reference to “Opinio Juris” in Chinese. Links to Opinio Juris by other blogs are always welcome. But when a Chinese blogger successfully links to Opinio Juris, it takes on much greater importance. Why? Because all news is filtered in China, and a blogger republishing prohibited news in China does so under pain of severe sanction.

    The Wall Street Journal recently had an interesting article on Chinese attempts to restrict content on the Internet. “Can China really control the Internet? It has launched a new bid to try. In an effort to crack down on the information access and activities of China’s 100 million Internet users, the Chinese government is imposing new regulations that will attempt to centralize all China-based Web news and opinion under a state regulator. The laws would prohibit content that ‘goes against state security and public interest,’ likely affecting Chinese bloggers, bulletin boards on popular portal sites, and other independent Chinese-news Web sites….The government has long maintained theoretical control over all Chinese media, including the Internet. But the new laws, which update regulations issued in 2000, have drawn a line in the sand for China’s netizens, imposing fines of up to $3,700 and the threat of complete closure to Web sites that provide news without government authorization. The laws also change the legal definition of Internet ‘news,’ vaguely defined in the past as ‘news published and republished,’ to now also include ‘reports and comments on political, economic, military, foreign policy and other social public affairs.'”

    The level of scrutiny by Chinese authorities is truly alarming. According to a recent article by Rebecca MacKinnon, this past summer “Chinese trying to create blogs on a Microsoft-hosted service using words like ‘democracy’, ‘freedom,’ or ‘human rights’ in the title received a rude reminder: ‘The title must not contain prohibited language, such as profanity. Please type a different title,’ said a message. This warning equating democracy and freedom to profanity marks a new milestone in the continuing battle for free expression in China.”

    So go to this blog and celebrate. You won’t be able to read a word of it, but know that billions can, and every successful posting of prohibited international news on the Internet in China is a small victory.

    Criminalized Association and Counterterrorism

    by Bobby Chesney

    As this is my first post as a guest blogger for Opinio Juris, I’d like to begin by saying thanks to Peggy, Chris, Julian, and Roger for their generosity in inviting me to participate. I really appreciate it, and hope that I can make some useful contributions. Now, on to the topic at hand….

    In the course of studying the legal aspects of the U.S. response to terrorism both before and after 9/11, I’ve often been struck by the fact that federal criminal law – notwithstanding its considerable scope in this area – does not go so far as to overtly criminalize the mere act of being a member of certain terrorist organizations. To be sure, certain statutes (particularly, 18 U.S.C. 2339B, prohibiting material support to terrorist organizations) come rather close to outlawing membership in foreign terrorist organizations so designated by the Secretary of State. Indeed, I have argued elsewhere that during the prosecution of the “Lackawanna Six,” federal prosecutors employed an interpretation of the material support statute that was tantamount to a membership prohibition. The fact remains, however, that we have no post-9/11, terrorism-oriented parallel to the Cold War-era Smith Act membership prohibition that was upheld (albeit with a very important narrowing construction) by the Supreme Court in Scales v. United States.

    Some European states, in contrast, have taken precisely this approach. In Brussels today, proceedings began in the trial of a group of 13 men on charges including the act/status of membership in the Moroccan Islamic Combat Group, an outlawed terrorist organization. According to a statement from the Beglian Federal Prosecutor’s Office reported by the AP, the membership ban makes it “easier for police and investigators to shut down suspected terror cells and detain those believed to be aiding and abetting terrorists . . . . Prosecutors do not have to prove that the defendants themselves were involved in carrying out an attack, only that they belong to terrorist groups.” (Note that the statement may be paraphrasing by the AP reporter).

    That the U.S. Justice Department has not sought similar authority in the U.S. says something, I think, about the distinctive role that First Amendment freedoms play in our society. That, in turns, leads me to wonder about the status of the Belgian membership ban under Article 11 of the European Convention on Human Rights and Article 25 of the ICCPR. According to both, freedom of association may be restricted “in the interests of national security.” I can certainly see that argument’s theoretical applicability here, but am not certain whether this issue has been litigated previously under either convention (might this have come up in connection with UK law relating to the IRA, or Turkish law relating to the PKK?). I suspect that if this has been litigated such provisions have been upheld, particularly given the “margin of appreciation” often said to be owed to the state’s determination of its own national security interests.

    That’s all for now. I hope some of you have some thoughts or insights to share!

    EU Commission to Investigate CIA "Black Centers"

    by Peggy McGuinness

    The EU Commission has announced an investigation into the CIA “black” detention centers. (Chris discussed the sites here.) The earlier Washington Post article by Dana Priest exposing these CIA black sites did not name names, but noted that several of the CIA facilities are in Eastern Europe. According to the BBC news, the EU inquiry is beginning with official requests from the Commission to the member state capitals. Both Romania and Poland have been named by Human Rights Watch as possible sites — and both have issued official denials. The existence of the sites and the nature of the detentions would be a violation of the European Convention on Human Rights, to which those countries are signatories.

    All this comes, not coincidentally, in a week where the White House is pushing for exceptions to the McCain amendment (prohibiting “cruel, inhuman and degrading treatment” of detainees in US government custody) for CIA and other intelligence agencies. It appears that the voices of sanity within the intelligence agencies and the State Department are finally being heard. At the end of the day, Powell and Taft’s original views may win out: carving out legal black holes is bad foreign policy and a bad way to fight the war on terrorism. Perhaps the press revelations of the detailes of the black centers and the pressure from the Europeans will solidify support in favor of McCain and against attempts at weakening or killing his amendment.

    (For a discussion about the internal administration debate about the applicability of Common Article 3 of the GCs to detainees generally, see this piece by Marty Lederman on Balkinization. )

    The Sands-Yoo Debate

    by Roger Alford

    Earlier this week Professors Philippe Sands and John Yoo debated global legal rules at an event sponsored by the World Affairs Council. The full debate is available here.

    Here is a brief excerpt of Philippe Sands’ opening remarks (beginning at the 12th minute):

    “[The Bush Administration has undertaken] a systemic assault on global rules… But it is not states that break the rules. It is people that break the rules…. In the case of torture, one of those advisors was Professor Yoo. He prepared a number of legal opinions which plainly are not supportable in the rules of international law.… [I]n the case of the torture that has been prosecuted apparently as a matter of policy by the United States, the Torture Convention is going to come back to haunt individuals associated with it…. There is international authority in Nuremberg … that legal advisors who prepare legal advice that is so erroneous as to give rise to an international crime are themselves subject to the rules of international criminality. I think that … [Articles 4, 5 and 7 of the Torture Convention] which require that any state that finds on its territory any individual who has been associated with the promotion of a policy of torture is either to be investigated and prosecuted in that state or to be extradited to a country where it will happen. And I suspect that with the passage of time the rules of international law that are reflected in this Convention will come to be seen as rather robust and the individuals who have been associated with the deplorable policy, the un-American policy, of torturing anybody under any circumstances whatsoever are likely to find themselves facing the very same tap on the shoulder that Senator Pinochet got so unexpectedly on October 16, 1998.”

    Here is a brief excerpt of John Yoo’s opening remarks (beginning at the 18th minute):

    “I do agree with what Professor Sands says that the United States is engaged in a project to change the rules of international law in this area…. I would say a lot of the wars that the United States fought [during the Cold War] were not self-defense: Panama, Grenada, Libya… Those were all clearly illegal as well as many of the other conflicts around the world. So the question is should we have a legal system in which practice and rules are so inconsistent…. The world has changed. These rules were written in 1945…Our great enemies are not nation states. The great problems affecting the United States are … international terrorist organizations like Al Qaeda …, rogue states and failed states, states that commit massive human rights violations against their own citizens, and … weapons of mass destruction proliferation. So if you agree that those are the pressing security problems that we face in the world today, should we maintain a system that is designed to prevent military intervention to solve those kinds of problems? It seems to me that what we have now … is a collective action problem…. The international legal rules made it illegal to intervene in places like Rwanda … like Kosovo…. International law in this case …. makes things worse because it prohibits intervention in almost all of these situations. Unless these states are actually committing attacks or some kind of threats against their neighbors or unless the Security Council intervenes it’s illegal for the United States and other nations of the world to intervene….The United States … is trying to change the international legal system to permit countries to intervene in those kinds of situations.”

    Regarding various questions relating to torture, Professor Yoo responded (beginning at the 52nd minute) that “It is American policy and law that torture is prohibited … both to Al Qaeda, … the Taliban, and Iraq, and everywhere…. [As for] Abu Ghraib … what we saw in the pictures was clearly a violation of American law and the Geneva Conventions and I think what we have there is a problem of a small force sent over to do a big job and we had people who violated the rules…. There is a military justice and investigatory service whose job it is to follow the chain, no matter how high up the chain of command it goes, to make sure that those who created that policy are investigated and punished. I do think that there is a different legal regime that applies in the war on terrorism, that applies in Guantanomo Bay and that is that torture is prohibited and it is not policy, but that the Geneva Conventions standards do not apply there….”

    Following these responses, Professor Sands interjected (beginning at the 55th minute) that “I suppose it is moderately entertaining to engage with a sparring partner when the use of facts and law are so skewed as to depart entirely from reality. The problem is not renegade actors, the problem, frankly, is renegade lawyers. I’m sorry to say that Professor Yoo is one of them. He drafted advices which … completely redefines torture…. Sure you can unilaterally change the definition and then say what you are doing is not amounting to torture, but you won’t get away with it in the international context because in the international context the only standard that is relevant is … international law.”

    To which Professor Yoo replied (beginning at the 59th minute) that “Mr. Sands, I could sit here and call you names… I have not and you can certainly engage in ad hominem criticisms, but I choose not to….”

    Finally, Professor Sands concluded (beginning at the 69th minute) that “I don’t for a moment believe that what has happened at Abu Ghraib, and at Guantanomo … and elsewhere in Iraq is just a case of a few bad eggs. There is a paper trail … of policies, of decisions, of legal advices, and I think that with the passage of time it will become abundantly clear that there is a direct line from the legal advices to acts of torture that occurred….”

    It is worth an hour of your time to listen to the whole debate.

    Assessing the ICJ: Getting Off the Merry-Go-Round

    by Chris Borgen

    Julian doesn’t want us to keep arguing about the same point. I heartily agree; I wouild like the conversation to move forward rather than around in circles. That’s why my previous post on this topic challenged Julian to get past complaining about what he didn’t like and actually suggest what, if anything, should be done.

    First, though, let’s keep track of what we are actually saying. Julian wrote that I had an
    “odd suggestion that in order to analyze and study an institution effectively, I have to subscribe to some normative internationalist agenda, e.g. that in order to have something useful to say about the ICJ or the U.N., I have to first admit that I support their existence or legitimacy.”

    What I actually wrote was this: “Does Julian attack the ICJ because he does not like the idea of such a Court? If so, fine, we can disagree on that. But, if that is not the case, then what does he think we should do to make the institution work better?” I never said or even implied that you need to take an oath to “believe in the ICJ” (as Julian also implied) or anything along those lines. And I am somewhat amazed that Julian could read my post and think that. Nice straw man maneuver, but let’s stick to the actual issues.

    My question remains: to what end are Julian’s arguments? There are many possible criticisms of the ICJ from the left, right, and center. For example, some may argue that the ICJ takes on too many politically contentious issues (like the Israeli Security Barrier case), while others criticize it for not taking enough. Both are criticisms, yet both are based on profoundly different views of the role of the ICJ in international relations and are mutually exclusive.

    My concern is that some critics of the ICJ will criticize it for anything they can think of: too many cases, too few, too political, too legalistic, etc., regardless as to whether their criticisms taken together are in any way coherent. To criticize something is to say that it should be somehow different. That inherently has a normative view attached to it. Julian has been deft in criticizing the ICJ for a whole host of reasons without ever explaining the result of his critiques. He even calls his post “Why I Don’t Hate the ICJ or the UN But Why that Shouldn’t Matter” and never even mentions why he doesn’t hate the ICJ or the UN. To paraphrase Cat’s comment to Julian’s post, does he think the ICJ should be eliminated, reformed, or replaced?

    If he does not think the ICJ is a useful institution, that is a perfectly valid point and, as I did say, we can disagree on that in good faith. If that’s the case, Julian can just say so. But if he thinks it should survive but be reformed, my question was (and still is): how? We all know that the ICJ has many problems (although we may not agree on what those problems are) but, at then end of the day, just what is Julian’s point?

    I’ve put my cards on the table from the beginning: I think the ICJ, although flawed, plays a useful role in the international system not only in resolving disputes but, as I’ve said before, especially in the elucidation of norms. What this implies as far as a critique of the ICJ I’ll get to in a moment.

    Yet, rather than setting out the role he thinks the ICJ should or should not play in international relations, Julian goes back to citing stats on numbers of cases heard, etc. In part, I think this shows some of the weakness in how “empirical” research is sometimes deployed: if one is not careful, one can cite to a lot of numbers but not really say much that moves the debate forward. That is how discussions can turn into merry-go-rounds. And, depending on what you (de-)emphasize, you can make numbers say almost anything you want.

    For example, Julian claims that the ICJ is decreasing in importance because, even though the number of cases is increasing, so have the number of States, therefore the importance is really decreasing. Well, except that Romano’s work has shown that the levels of litigation, as it now stands, is at the level we would expect of a stable litigation system. If there were more cases, one may have reason to be concerned.

    We need to stop slinging numbers and actually look at substance for a minute. Why were there more cases than one may have expected in the early day of the ICJ? Because the international system was in crisis: in particular many of these early cases dealt with the problems faced due to decolonization around the world. There were many cases because there were many problems of the type the ICJ was particularly suited to deal with (boundary delimitation and self-determination being two main issues). In deciding these cases, the ICJ clarified the relevant norms and, by the time you got to the end of the Cold War and another spate of boundary issues, there was much greater certainty as to the norms the international system espoused; the diplomatic pronouncement of States (especially those of the US and the EU) in the 1990’s were able to point to fairly stable sets of norms that they could then apply in unstable times. There were some new ICJ cases on these topics but you did not need to have as many.

    This is part of the criticism I lay on those who cling to empiricism as if it is a security blanket: empiricism can be an important and incisive tool, but to properly analyze your findings you need to then apply normative or historical analyses. You need to see beyond your data set. Otherwise, you’re just churning numbers.

    Julian also noted that the fraction of the number of States on the Security Council that have accepted the ICJ’s compulsory jurisdiction has dropped. Well, that’s because the size of the Security Council has increased, thus making the fraction smaller. However, the number of treaties that specify the ICJ as its method of dispute resolution has increased, although the rate of that increase, as Julian noted, has decreased. This is just one more time around on the merry-go-round.

    In any case, the number of States that use the ICJ’s compulsory jurisdiction is just not something that as I see as a problem since I think the ICJ’s special function is one of norm elucidation and you simply don’t need to have every possible case haled into the ICJ for it to be effective at that function. Does Julian think it is an important problem? If so, why?

    Moreover, new specialized tribunals handle dispute resolution in many areas of international law. The International Tribunal on the Law of the Sea is likely to become the main tribunal for Law of the Sea issues, the European Court of Human Rights and the Inter-American Court of Human Rights handle the majority of human rights related litigation that stem from those two regions, the WTO handles trade law disputes, etc. There are simply more possible fora today than fifty years ago. Thus, the ICJ doesn’t need to take on every possible case, but rather those for which it has the confidence of the States’ members to define the rights and responsibilities of the litigants and, by analogy, other similarly situated States. Note how the rulings of the ICJ form much of the caselaw that these specialized tribunals refer to. The Court’s function of norm-elucidation provides these specialized tribunals with a basic framework of caselaw and norms.

    OK, enough of the tit-for-tat. Let me try to get off the merry-go-round and encourage Julian to step off with me. I’ll set out three supposed problems of the ICJ that I think are not important and four that are. I come to these conclusions because I think that a key function of the ICJ is actually norm elucidation moreso than thinking of the ICJ as some sort of district court for States. As such I come to these results:

    Three supposed problems that I do not think are especially important:

    Number of Cases per Year. As a norm-elucidator the ICJ can hear relatively few cases but still make legal pronouncements that re-frame basic concepts in the international legal system. Too many cases can actually lead to normative confusion if they cause too much change. In short, I am not concerned about the number of cases the ICJ currently hears and decides per year.

    “Slow” Tempo. Most of the cases before the ICJ do not require immediate decisions, rather the States are more concerned about a definitive statement of their rights and responsibilities. As such, taking a year or so after briefings to write a final opinion is not a big concern, in my eyes. What is in the final judgment is of greater importance.

    Few States Submit to Compulsory Jurisdiction. As described above, I am not so concerned with whether a State has to go to the ICJ, as there are many methods of peaceful dispute settlement (other tribunals, mediation, standard diplomacy, etc.). Rather, I am more concerned with the results of the processes for the States that actually use the ICJ.

    Four problems I think are in need of greater consideration:

    Overpoliticization of the Bench. As one person commentated to an earlier post I had where I set out the ICJ as quasi-legislature, this means that the ICJ shouldn’t here cases that are highly politically contentious, such as issues dealing with the Palestinian question. With some qualifications, I agree. I do not think the ICJ is at its best when dealing with hot-button political issues. Two recent example: (a) the Israeli Security Barrier process, which gave short-shrift to Israel’s legitimate security concerns and (b) Judge Bruno Simma’s opinion in the Oil Platforms (Iran v. U.S.) case in which he invited himself to rewrite the law on use of force and chiding his fellow judges for “inappropriate restraint.” The issue then is not simply the political nature of the dispute but rather when politicization is allowed to overtake legal craftsmanship. Consider by contrast, the experience of the European Court of Justice. Judges from that court have stated that the incredible increase of the ECJ’s usage by parties and in referrals from domestic courts was due in part to the carefully crafted “lawyerly” opinions that they wrote which caused the ECJ to become respected in domestic courts. The ICJ can learn from this example.

    Access Problems for LDC’s. If the ICJ is critical as a norm clarifier, then, although it does not need to have many cases, it should have cases in which a wide variety of issues are argued. Consequently, it is as important that voices of poor States have effective representation before the ICJ as it is for poor individuals to have effective representation before national courts. The ICJ has attempted to address this situation with the Trust Fund, a sort of legal assistance fund for lesser developed countries. However, as Cesare Romano has pointed out, donations to the Fund are voluntary and the funds can only be tapped when both parties to a dispute have agreed ahead of time to give the ICJ jurisdiction to the dispute at hand. Consequently, there are inherent weaknesses one concerning whether the Fund will have adequate respurces and the other as to whether many important, but contentious cases, will not come within its purview. Whether the Trust Fund actually addresses the problems it has been built for is thus an issue that needs monitoring.

    The Role of International Organizations. International organizations have become central actors on the world stage. The activities of NATO, the E.U., the African Union, ECOWAS, the OAS and other international organizations have significant impact on international practice. They can also neither file a claim nor have a claim filed against them before the ICJ. If the ICJ wants to be effective in norm-setting, that is a significant problem. As I mentioned in my previous post, this is an issue worthy of consideration. More generally on theme of international organizations and international law, Jose Alvarez of Columbia Law School has a new book, International Organizations as Law Makers, which builds on his seminal article “The New Treaty Makers,” 25 Boston College International and Comparative Law Review, 213 (2002), which would be of interest to anyone who wants to learn more about this issue.

    The Relation of the ICJ to the Specialized Tribunals. Although the many new specialized tribunals have relied on the ICJ until now as a means of providing underlying legal norms and coherence, will that relationship persist? Or will these new tribunals actually cause legal fragmentation and, if there is a risk of that, can or should the ICJ do anything about it? Jonathan Charney handled this question in his 1998 Hague Lectures. (He thought that concerns of fragmentation had not been borne out in practice at the time.) There is also an excellent set of articles published by NYU Law’s Journal of International Law and Politics and available here. The International Law Commission, by the way, currently has a study group assessing the fragmentation of international law.

    I’ll leave a longer consideration of each of these points for another time.

    For now, I simply ask Julian what he thinks are the key problems of the ICJ and which are not and, most importantly, what does he think should be done? In sum, what role, if any, does the ICJ have in the international system?

    I look forward to our ongoing conversation.

    Charming Betsy and Psychedelic Tea

    by Roger Alford

    A summary of yesterday’s Supreme Court oral argument in Gonzalez v. O Centro is available at SCOTUSblog. The case raises concerns about the interplay of two federal statutes–the Controlled Substances Act and the Religious Freedom Restoration Act–and a treaty, the 1971 Convention on Psychotropic Substances.

    From the summary it appears that the international law arguments did not hold much sway with the Court, particularly given that RFRA was enacted after the treaty. According to the post, “[w]hen the small religious sect’s lawyer, Hollander, was being pressured to defend the religious use of hoasca tea against the government’s reliance on a 160-nation treaty banning the import of the hallucinogen, Scalia came to her rescue. ‘Statutes trump treaties,’ he said, so ‘if RFRA can trump a statute [like the Controlled Substances Act], it can trump a treaty.'” The precise nature of the international obligation also was at issue, with Hollander questioning “the government’s reliance on the global treaty banning import of the hallucinogen, arguing that hoasca tea is not even covered by that pact, and noting that other nations that have signed the treaty do not regard it as covered.”

    There also is extensive discussion of Charming Betsy in the Supreme Court briefs in O Centro. In her brief, Hollander argued that Charming Betsy does not control. “First, it applies only where the statute is ambiguous … and the government does not claim that RFRA … is ambiguous. Second, there is no tension between RFRA and the Convention. Third, even if a conflict did exist, it would be immaterial since RFRA is later in time.”

    The government, by contrast, argued in its brief that the international obligation seves as the compelling state interest under RFRA. “The government’s argument is not that the Convention renders RFRA inapplicable, but that compliance with a longstanding, multi-Nation international treaty that is critical to combating illicit transnational drug trafficking and to obtaining international law enforcement cooperation … constitutes a compelling interest under RFRA.”

    It will be interesting to see whether the Court follows its recent approach in Spector v. Norwegian Cruise Line and struggles to find a creative way to reconcile the federal statute with the international obligation. In that case the Court noted an exception to the ADA’s requirement of barrier removal if compliance was difficult, and then interpreted “difficulty” to include creating a conflict with an international treaty governing safety standards on foreign-flag ships.

    Executive Deference and the CIA’s "Black Sites"

    by Chris Borgen

    Since a couple of previous posts on Judge Alito generally mentioned the topic of deference to the executive, it is useful to keep in mind that such deference, even in issues relating to foreign affairs and national security, is not always a good thing. Consider the ongoing legal struggles having to do with national security, individual rights, and the ability of the executive to unilaterally make unreviewable decisions regarding how the balance should be struck. To put it bluntly: unilateral unreviewable decisions as to the ability to torture. This is the story, as told in the current issue of the Washington Post, and in the excerpt below from CNN, of the CIA’s international network of detention/torture areas known as “black sites.”

    CNN reports that:

    The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held.

    Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long…

    To [acknowledge the existence of the sites], officials familiar with the program told the Post, could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad…

    [The concerns of human rights groups and lawmakers] escalated last month, when Vice President Cheney and CIA Director Porter J. Goss asked Congress to exempt CIA employees from legislation already endorsed by 90 senators that would bar cruel and degrading treatment of any prisoner in U.S. custody.

    Although the CIA will not acknowledge details of its system, intelligence officials defend the agency’s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay.

    Claims of deference to the executive is one thing, demands of prostration to the executive are another. Whoever becomes the next Associate Justice on the Supreme Court (as well as those already on the Court) will hopefully understand the difference.

    Judge Alito and Forced Sterilizations

    by Roger Alford

    There is still more on Judge Alito and international law. It seems remarkable that one appellate court judge could be faced within the span of two years two terribly wrenching asylum applications. But Judge Alito was. As I recently posted, his decision in Chen v. Ashcroft addressed the denial of asylum to someone engaged to a person forced to undergo an abortion. One year later in the case Zhang v. Gonzalez, 405 F.3d 150 (3d Cir. 2005), Judge Alito was faced with an asylum application by a woman who allegedly was ordered by Chinese authorities to undergo a forced abortion and a forced sterilization.

    The immigration authorities denied Zhang’s application, finding her story of forced abortion and forced sterilization not credible. Zhang had documents showing she was fined hundreds of dollars for having too many children, and another document ordering Zhang to “go to the local hospital for [a] sterilization operation. Otherwise we will be forced to complete the sterilization operation, and punish severely as well.” The immigration authorities rejected these documents because they were not properly authenticated by the U.S. consulate in China and therefore denied her asylum application.

    On appeal, the Third Circuit, per judge Alito, reversed. While recognizing the extraordinary deference that is owed to immigration authorities, Judge Alito concluded that the evidence compelled a contrary conclusion. Finding that the documents were improperly excluded, he ordered the agency to explain more fully why these documents were excluded.

    “The document ordering Zhang or her husband to submit to a sterilization procedure on pain of severe punishment would corroborate Zhang’s testimony that the Chinese authorities threatened her with forced sterilization and would bolster her claim that she has a well-founded fear that she would again be threatened with forced sterilization if she were sent back to her native country. Because of the significance that the documents in question would have if they are authentic and accurate, it is obvious that the IJ must have given them reduced weight or no weight at all.The IJ never explained which of these options he chose or why he did so.”
    The significance of this case again concerns deference. Judge Alito strongly favors deference, but Zhang suggests he will not defer to agency findings if compelled by a conclusion that the decision was clearly wrong. Excluding without explanation documentary evidence that strongly corroborated Zhang’s story of forced sterilization precluded a finding of deference.
    Considering Zhang and Chen in tandem, the wrenching stories are remarkable, but his approach to executive deference is not.

    Welcome to Guest Blogger Bobby Chesney

    by Peggy McGuinness

    Professor Bobby Chesney of Wake Forest University School of Law will be guest blogging at Opinio Juris all month. Professor Chesney is an expert on U.S. national security law and his recent scholarship has focused on legal responses to terrorism. One of his recent papers tackles the transfer of detainees at Guantanamo to their home countries, a practice that, while different from extraordinary rendition of detainees to third countries, raises similar issues about U.S. compliance with international legal obligations (e.g., the Torture Convention, the Geneva Conventions). We look forward to Professor Chesney’s contributions and extend him a warm welcome to Opinio Juris.

    Judge Alito and the Case of the "Stateless" Marijuana

    by Peggy McGuinness

    I agree that Alito’s international and comparative law record is thin, but in addition to the cases Roger and Julian discuss here and here, let me add US v. Rosero, a 1994 case reversing and remanding a conviction of possession of marijuana, with intent to distribute, on a vessel “subject to the jurisdiction of the United States.” The issue before the Third Circuit was whether the jury had been properly instructed on what constituted “statelessness” of a vessel under the Maritime Drug Enforcement Act. The case involved the US Coast Guard’s seizure of a boat carrying 200 bales (!) of marijuana in the waters off the coast of the Saba Island, Netherlands Antilles. The vessel was not marked with a port or country registry and was not flying a flag. (A later search of the ship turned up flags of three different nations.) The ship was brought into port at St. Croix, US Virgin Islands, where the ship’s crew was booked and later indicted under the US statute.

    The US statute in question extends jurisdiction for possession and intent to ships outside US waters that were “stateless.” The general rule under international law is that jurisdiction of the state of registry or flag of a ship extends to it on the high seas. Thus, the US drug law would apply to a US registered ship, but not one registered in the Netherlands. But where a ship is “stateless” or “without nationality,” any country could seek to apply its law extraterritorially.

    The issue before the court was whether the jury instruction, which applied the definition of “a vessel without nationality” from the US statute, and also allowed the jurors to take into account the “totality of the circumstances” concerning the nationality question, was in error. Alito concluded the instruction was in error because the statute did not include the “exhaustive definition” of “vessel without nationality” and that therefore international law should have been incorporated:

    “Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meanings of these terms.” NLRB v. Amax Coal Co. , 453 U.S. 322, 329 (1981). See also Community of Creative Non-Violence v. Reid , 490 U.S. 730, 739 (1989). This same principle logically applies when Congress uses a term that has acquired a settled meaning under customary international law. We therefore think that it is reasonable to assume that the residual category of vessels “without nationality” under 46 U.S.C. App. § 1903(c)–i.e., those not within subsections (c)(2)(A) or (B)– are those that would be regarded as without nationality or stateless under international law.

    Alito then proceeded to describe the international law of “stateless vessels” by reference to the 1958 Convention on the High Seas and Oppenheim on International Law. A vessel, he concluded, could be “stateless” under international law, whether or not it satisfied the non-exhaustive categories in the statute. The statute, therefore, should be read to incorporate the international law standards for determining statelessness.

    Now, the broader effect of Alito’s interpretation would appear to expand the ways in which the US government can arrest individuals on international waters who possess drugs that may or may not be destined for the US, expanding the reach of governmental power that may be in line with his overall jurisprudential record. But in drawing an analogy between common law/equity and customary international law, he does so in a very un-Scalia-like way.

    Alito and Deference to Foreign Courts

    by Julian Ku

    Roger and I can now proudly boast we have provided the most comprehensive analysis of the Alito record on international and comparative law in the blogosphere. But this record is pretty thin, I have to admit. Which is why I am thankful that John Brewer, an attorney in Manhattan and a former Alito clerk, alerts me to this Alito dissent in Dailey v NHL, 987 F.2d 172 (3d Cir. 1993) involving a ERISA lawsuit by retired National Hockey League players against their pension administrators (the NHL). What does this case reveal about Alito’s internationalist temperament?

    Not a tremendous amount, but it does suggest Alito will not go out of his way to defer to a foreign court proceeding, especially where Congress has spoken by statute to the issue. The majority of the panel refused to allow the district court to exercise jurisdiction in the ERISA case in deference to parallel proceedings already occurring in Canada. It invoked the Princess Lida doctrine, which is deference doctrine previously applied only to competing state and federal jurisdictional claims. Judge Alito rejected applying that same doctrine to competition between federal and foreign courts, writing that the majority opinion’s deference to Canadian proeceedings “has abrogated federal statutory rights.”

    In other words, Alito is unlikely to be sympathetic to claims that the U.S. Supreme Court should go out of its way to extend comity doctrines to require deference to foreign and international courts, at least in cases where Congress has spoken directly to the issue at hand.

    Why I Don’t Hate the ICJ or the U.N., But Why That Shouldn’t Matter

    by Julian Ku

    Many blogs start fights with other blogs, but Opinio Juris has to be unique in that we continually have knock-down battles among our regular contributors. Chris and I (to take just one example) have been fighting about international institutions like the U.N. and the ICJ since we initiated this blog almost a year ago and our disagreements show no signs of abating.

    I have some substantive defenses of my posts about the ICJ’s “slowness” and some new criticisms of the ICJ’s general ineffectiveness. But I also have a response to Chris’s odd suggestion that in order to analyze and study an institution effectively, I have to subscribe to some normative internationalist agenda, e.g. that in order to have something useful to say about the ICJ or the U.N., I have to first admit that I support their existence or legitimacy. Let me start with a substantive defense of my ICJ post.

    Chris has three main responses to my claim that the ICJ is slow: (1) Given the number of potential litigants, the size of the ICJ docket is more than respectable; (2) Resolving two or three cases a year is not bad, as a percentage of such a docket; (3) State litigants want a slow process, and they are often responsible for the delays in issuing judgments.

    (1) With respect to the size of the ICJ’s docket, I think Chris overlooks the fact that the ICJ docket has actually been declining steadily in recent decades, especially cases invoking the ICJ’s full chambers. As Professor Eric Posner at U.Chicago has noted in his article here,

    • There were 36 filings during the ICJ’s first twenty years (1946-65); there were 53 filings during the ICJ’s last twenty years (1985-2004) (including 10 filings emerging from essentially the same event, the intervention in Kosovo). But the number of UN member states increased by more than three times during this period (from 55 in 1946 to 191 in 2004). Thus, the number of filings per state dropped quite substantially.
    • The fraction of states that are subject to compulsory jurisdiction has dropped from about 2/3 to about 1/3.
    • The fraction of permanent members of the security council that are subject to compulsory jurisdiction has dropped from 4/5 to 1/5.
    • During the ICJ’s first twenty years, states entered treaties that provided for ICJ jurisdiction at a rate of almost 10 per year; today the rate is less than 2 per year.

    (2) Given the actual decline in its docket, it strikes me as odd that the ICJ is not eager to move a little more quickly on the cases it does have. Even Chris points out that the ICJ took 1.5 years since its last filing deadline to resolve the Serbia cases. I accept that resolving 2 or 3 cases a year is not bad, but it is not great either.

    Let’s put it this way: If I am one of fifteen ICJ judges, I attend two or three public hearings per year and decide two or three cases a year. I draft (maybe) one opinion a year. I ask (maybe) one question at a public hearing per year. Let’s be honest, if I’m that ICJ judge, I am not doing a whole lot of work. (This is only slightly mitigated by the fact that I am not being paid a whole lot of money either).

    (3) State litigants sometimes want a slower process, but not always. Sometimes, one side wants speed, the other doesn’t. Certainly, prior to a litigation occurring, most states would say they want speedier dispute resolution. It is only afterward that they start dragging their heels. And the ICJ is certainly free to adjust its procedural rules to require speedier briefing, especially on jurisdictional issues, where there is almost no fact-finding. (While we are at, can we dispense with the oral argument process, since litigants travel all the way to the Hague to simply read their briefs into the record and the judges almost never ask questions?).

    I don’t think ICJ judges are lazy. I think the ICJ as an institution is probably slow for institutional reasons. If the ICJ cleared its docket, it would look even worse than if the Court has a long docket. They want to look like they are doing something and that they are continuing to be busy. This is just a theory, but one that fits more with the evidence, I think, then the alternative explanations.

    In any case, Chris offers a more fundamental criticism of my approach. He suggests that if I don’t support having an ICJ (or an U.N.), then my criticisms of the ICJ or U.N. aren’t really in good faith or at least aren’t very useful. But this can’t be right. Scholars or analysts surely have normative views on institutions they study, but they don’t have to adopt a supportive normative view in order to have something useful to say. I don’t have to first take an oath to “believe in the ICJ” before I can criticize it. Such a view would further insulate the international law community from its critics, reinforcing that community’s already regrettable tendency to dismiss all criticism from those outside their “enlightened circle.”

    Memo to Critics: Don’t Misunderestimate the ICJ

    by Chris Borgen

    Julian’s recent post on the work of the ICJ is interesting, in part because of its common misperceptions. I think his most recent post on the ICJ and others similar to it are inaccurate in their description of the work of the ICJ and muddled as to any prescription concerning how to ameliorate the institution. Both concerns, I think, stem from a misunderstanding as to the role of the ICJ as a dispute resolution mechanism. I think it is worth taking a little time to consider carefully what the ICJ is and is not.

    While the ICJ undoubtedly has numerous problems—when has an attempt to encourage nonviolent dispute resolution among States not had serious institutional flaws?—it may be more useful to focus on the form and function of the ICJ as a method of inter-State dispute resolution rather than falsely analogizing to domestic litigation between private parties. Many critiques of public international law stem from the observation that it is not like a domestic legal system. I agree; it is not. Consequently we must consider the ICJ based on its actual tasks, as opposed to on an inaccurate analogy.

    Julian’s argument in his latest post is essentially that the the ICJ has an “unbelievably light workload and… ridiculously low productivity.” Really? Compared to what, exactly?

    The issue is not simply the number of cases filed before the ICJ or decided in a given year. Rather, it is important to compare the number of cases filed to the population size of potential litigants. As Dr. Cesare Romano of NYU and the Project on International Courts and Tribunals has argued , when you take into account that there are only 191 potential litigants (the States party to the ICJ Statute), then having approximately 20 cases on your docket per year is actually consistent with the ratio of litigousness of a domestic society such as France. (See Cesare’s comment to an earlier post by Julian here.) Twenty cases on a docket with two or three resolved each year is not “unbelieveably light;” as a ratio of cases to potential litigants it is actually similar to what we can see within States.

    While Julian contends that the ICJ President is exaggerating the work of the Court, Julian himself plays fast and loose with the numbers. Consider that Julian concludes that the ICJ has only resolved one case in the last year. That is because he does not count eight other cases that were resolved in the jurisdictional phase. An opinion is an opinion and writing those eight opinions on jurisdictional grounds resolved eight cases, all the same. We don’t look at the work of domestic judges, for example, and say their opinions on jurisdictional grounds “don’t count.” Dr. Pieter Bekker, who chairs Committee on Intergovernmental Dispute Settlement of the American Branch of the International Law Association has noted that Keith Highet (who before he passed away was the U.S. litigator with the most appearances before the ICJ) used to stress in his writings and speeches that the emphasis in ICJ litigation is on jurisdiction and that this explains why decisions on preliminary objections take so long and are so lengthy.
    In the year previous to the one Julian considered, the ICJ decided three contentious cases including the long-standing dispute between the U.S. and Iran considering the U.S. destruction of Iranian oil platforms and the more recent dispute concerning the Mexican nationals on various U.S. death rows who had not been given their rights of consular access. The Court also received a request for and issued an Advisory Opinion concerning the security barrier erected between Israel and the Palestinian territories. Three other cases were otherwise discontinued and nine orders were also issued. Does Julian want the ICJ to get involved in a greater number of political disputes or does he think this might be a good amount of judicial intervention in a given year?

    In any case, considering the range of issues and their wide-ranging implications, this is not “ridiculously low productivity.” And, given that the Court operates on a budget of only $30 million per year, it is dispute resolution at bargain-basement prices.

    Moreover, one should note that the level of litigation before the ICJ has been increasing from the 1970’s when the Court had an average of one to two cases on its docket per year, to the 1990’s where it was around ten cases and then from 1997 through 2004 there were always at least twenty cases on the docket. That number now stands at about thirteen, in part due to the eight cases filed by Serbia against various NATO member States for the Kosovo bombing campaign having been dismissed on jurisidictional grounds. Julian seems perturbed that it took four years to reach this conclusion, but the cause may be other than what he implies. The parties themselves jointly agreed to various extensions on their briefing deadlines. The Judgment was actually rendered about a year and a half after the final brief was submitted (as opposed to four years, as Julian implied). Not great by U.S. standards but actually not bad at all considering the high-stakes of these cases and that there was not a pressing time-constraint on the litigation. Speaking of the merits, I bet Julian actually thinks the decision reached was the right one. So if the delay was due to the common agreement of the litigants—read sovereign States—and the Court reached a just result, is this really an example of the ICJ getting it wrong?

    Note that the slow tempo for many of these cases is the speed that is sought by the litigants themselves. As States view these issues as having significant stakes, such as boundary delimitations, liability for military actions, etc., they tend not to want to rush the proceedings. Is Julian actually implying that a bunch of international judges should override the will of the States involved in litigation and order faster timetables? Or should the ICJ proceed instead with dispute resolution at the speed that the member States actually want?

    One way to get more cases heard, and heard more quickly, would be to have greater use of special chambers. As it now stands, the ICJ hears all of its cases in en banc hearings, with all the permament judges as well as any ad hoc judges. (Parties who do not have a national sitting on the court may appint an ad hoc judge of their own or another nationality to sit on the Court for their case.) Some have argued that it would be better to use special chambers, benches of 3-5 judges, for the reoslution of many cases. Currently, special chambers may only be used if both parties to the litigation agree. However, even though this would speed proceedings and save time and money, States almost never want to use special chambers. Why? Because the full court is a known quantity, some random sub-grouping of judges is not. The irony is that the lack of efficiency and speed that Julian bemoans can actually be solved by the States themselves, but they do not choose to do so.

    Or, keeping in mind Julian’s complaint of the duplicative proceedings in the Kosovo Air Campaign case, some have argued that the proceedings would have been much more efficient if Serbia could simply have filed suit against NATO, rather than the eight suits originally filed against the various NATO member States involved in one way or another in the bombing campaign. Given the changes in the international system and that an increasing number of disputes are between States and international organizations (say, for example, between the U.S. and the E.U.), then the member States of the UN should agree to submit the international organizations to which they belong to the ICJ’s jurisdiction as well. This would of course, require an amendment to the ICJ Statute. But think of the possibilities… duplicative cases that just sap the Court’s limited resources could be consolidated into a single suit… cases dealing with serious concerns in the international community could be heard… If you really want to improve efficiency and efficacy this could be a step in the right direction…

    Or maybe not. The point is that if you really want to get into a discussion on the strengths and weaknesses of the ICJ, you have to go beyond just saying “hey, they don’t have a lot of cases, do they?”

    There are lots of problems at the ICJ, ranging from serious concerns over judicial ethics to the problem of poor States being priced out of using the ICJ as a forum to hear their cases. And for those interested in learning about the deeper issues in ICJ reform, there is no better place to start than the website of the Project on International Courts and Tribunals. I particulalry recommed the Burgh House Principles on Independence of the Judiciary (available via the PICT homepage).

    Also, Dr. Cesare Romano, whom I mentioned earlier, is in the last stages of writing a report under the auspices Bekker’s Committee on Intergovernmental Dispute Settlement concerning ICJ reform. I had the opportunity to read an early draft of the report and it is both clear-headed and enlightening. It does an excellent job describing the major problems of the ICJ, their institutional causes, and possible reforms. I will post a link to it once the final version is released.

    In closing, my criticism of Julian’s post is based on two concerns. The first is that Julian uses caseload figures in a manner that leads to an inaccurate conclusion. Shabtai Rosenne, probably the best known living scholar on ICJ practice has pointed out that “in the long run, the bare figures may be misleading as the point of departure for an evaluation of the role of the Court in the international scene today.” Yet, when you contextualize the figures the result you get is one that is not as negative as Julian would have it. My second point is perhaps less a criticism than a comment about some of these posts concerning the ICJ, the UN, etc. It is one thing to throw stones, it is another to build with them. Does Julian attack the ICJ because he does not like the idea of such a Court? If so, fine, we can disagree on that. But, if that is not the case, then what does he think we should do to make the institution work better?

    Judge Alito and Internationalism

    by Julian Ku

    In the mass of articles about the newest U.S. Supreme Court nominee Judge Samuel Alito, there has been very little discussion about his views on international and comparative law (Roger’s post here is the great exception). This is probably because most activist groups really don’t care about his views on these questions and because his paper trail in these matters is very thin compared to his other writings.

    Still, readers of this blog might ponder two indications that Alito is more of an internationalist than his comparisons to Justice Scalia might indicate. First, my Hofstra colleague Nora Demleitner, a former Alito clerk and professor of immigration and comparative law, lauds Alito here (via Volokh)for his majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), which denied asylum* to an Iranian woman but held that her home country’s gender-specific laws and social norms could be considered persecution for purposes of U.S. asylum laws. Nora calls this one of the most “progressive opinions in asylum law on gender-based persecution.”

    Additionally, the Daily Princetonian reports here that Alito wrote his 1972 senior undergraduate thesis on the Italian Constitutional Court, which perhaps suggests he was actually ahead of the curve on comparative constitutionalism. Alas, as the Daily Princetonian reports, the Alito thesis is (mysteriously?) missing from university’s archives.

    *My original post (and the Legal Times article I referenced) misstated the holding suggesting that the 3d Circuit panel actually granted asylum to the Iranian female petitioner. Actually, the petitioner was denied asylum on the grounds that she could not show she would have refused to follow gender-specific laws. Still, the opinion is still widely cited for recognizing that gender discrimination overseas could serve as the basis for political asylum.

    Case of the Month: Broniowski v. Poland

    by Roger Alford

    My vote for the most important international law case of the month is Broniowski v. Poland, the ECHR decision that paves the way for “class action” human rights litigation in Europe. As discussed in my earlier post, an international tribunal in Europe may now order systemic, national relief to a class of similarly-situated claimants. The decision that launches this “pilot judgment procedure” is here and the press release discussing the decision is here.
    Under the “pilot judgment procedure” the Court will render a principal judgment finding a violation that is systemic and widespread and will order the national government to provide general measures at the national level to redress the wrong. Once the national government has done so, it may approach the Court and request assistance in settlement talks with the claimant. In Broniowski the Court actively assisted in settlement negotiations between the parties. Once a settlement is reached, the Court will approve the settlement and strike the application from the list.
    The decision is significant for several reasons. First, the ECHR had become a victim of its burgeoning caseload. According to its annual report, in 2004 it rendered 21,000 decisions, the overwhelming majority of which were deemed inadmissible. Over 700 full judgments were rendered by the Court. With 45 judges on the Court, that is 466 decisions and 15 full judgments per judge per year. ECHR judges are nearing a point of institutional incapacity to handle the work. A class action procedure affords a way to treat similarly-situated claimants together. As the Broniowski Court put it, “One of the relevant factors considered by the Court was the growing threat to the Convention system and to the Court’s ability to handle its ever-increasing caseload that resulted from large numbers of repetitive cases deriving from, among other things, the same structural or systemic problem.” (para. 35).
    Second, the Court is not focusing simply on resolving individual cases. It is now focusing on systemic wrongdoing. “In view of the systemic or structural character of the shortcoming at the root of the finding of a violation in a pilot judgment, it was evidently desirable for the effective functioning of the Convention system that individual and general redress should go hand in hand.” (para. 36). The Court can thus order a national government to provide redress to thousands of similarly-situated victims.
    Third, the Court can order a national government to provide a specific type of class remedy. In this case, the Polish government was required to pay compensation to all affected claimants. It established a “right to credit” scheme that offered claimants 20% of the original value of their property.
    Finally, the systemic wrong that was at issue occurred in the 1940s and early 1950s. The ECHR was established in 1953. The Court is ordering retroactive class relief for violations that originally occurred prior to the Court’s existence.
    There are huge risks and rewards with class action litigation, as any American litigator can attest. With class action litigation, courts veer precariously close to performing legislative functions. In the European context unfamiliar with this novel device, the “pilot judgment procedure” may become one of the most important new developments in human rights litigation.