As some of you have noticed, my blogging has been very light as of late. As I mentioned in a prior post (I think), I am currently teaching a winter course at the University of the Netherlands Antilles on the Dutch Caribbean island of Curacao. The winter course is co-sponsored by Hofstra, the University of Baltimore, and Erasmus University in Rotterdam. It’s a tough job to leave the wet snow in Long Island and to come down to teach amid sunny skies, beaches, and 80 degree weather, but someone has got to do it. (And for those of you readers who are law students, and want a chance to argue with me in person, feel free to sign up for the program next winter).

Due to my Curacao sojourn so I haven’t been able to follow up on the zillions of interesting stories including the continued fallout from the NSA spying program, the continuing legal struggle over Padilla and enemy combatants, and all the other stuff I would normally blog about. Thankfully, my co-bloggers have more than picked up the slack.

So let me content myself by wishing all of our readers a Gelukkig NieuwJaar, or Happy New Year and to thank them for keeping us in their bookmark files. This first year of Opinio Juris has been a lot of fun and I look forward to the next year with great anticipation. See you all next year!

Today’s New York Times has an interesting piece on the promotion of human/women’s rights in Africa and the tension between such rights and local custom. This is an excellent illustration of the central problem with international law (at least from a political science perspective). As I have discussed in several other posts here, the critical tension is between sovereign equality of states and the creation of strong, enforceable law. As the Times article makes clear, international legal standards, especially in an area like human rights, often runs counter to local practice, tradition, and custom in the developing worlds. For example, the rights of women to hold property or the practice of female genital cutting (both mentioned in the article) seem to be clear violations of internationally accepted norms.

In order for international law to be successful, it will have to challenge and likely make illegal many such practices. This is a problem for those believers in cultural relativism, or opponents of western “cultural imperialism.” In my experience, many supporters of broadening the breadth and scope of international law into domestic jursidictions like women’s rights are hesitant to acknowledge that doing so requires judging other cultures and declaring their traditions barbaric and illegal. This problem is compounded when international law seems to coincide with western standards for human rights or the treatment of women.

So, I’ll pose a question to all of you international lawyers out there: How can this problem be resolved? And this is not a rhetorical question. If law is to flourish, it must make judgments about right and wrong. On the other hand, if we are to protect the diversity of other cultures and prevent or slow the spread of western values, then the international community must promote sovereignty instead of law. Are you willing to promote the law at the expense of cultural diversity? Personally, I would be, although I can see few international mechanisms by which such decisions could be made. How can the international community agree on standards that violate the sovereign right of nations and peoples to govern themselves?

The ACLU announced yesterday that it has filed a petition against the United States at the Inter-American Commission on Human Rights on behalf of Jessica Gonzales, a Colorado woman and victim of domestic violence. She lost her claim in US federal courts, which she argued all the way to the US Supreme Court, that the failure of local police to enforce a restraining order against her estranged husband was a violation of her substantive and procedural due process rights and that the police were therefore liable under 42 USC 1983 (civil rights claims) for the husband’s murder of their three children. The US Supreme Court ruled against her 7-2 (Ginsberg and Stevens in the dissent), finding that she had no individual right to have the restraining order enforced.

As the ACLU explains:

Gonzales is a Colorado woman whose three children were brutally murdered by her estranged husband when local police refused to enforce her restraining order. She repeatedly called the police, telling them of her fears for the safety of her daughters and guiding them to the girls’ location. The police failed to respond and several hours later all three children were shot and killed by their father, the abductor, against whom Gonzales had a restraining order. The ACLU said that its concern is not limited to the specific Gonzales case. It extends more broadly to all victims of domestic violence who are not adequately protected by law enforcement. This case is the first individual complaint against the United States brought before any international human rights body for the violation of the rights of victims of domestic violence.

The petition (full text available here) to the IACHR:

seeks compensation for the violation of Gonzales’ rights, adoption by the United States of necessary measures to deter the commission of similar crimes, and an advisory opinion from the Inter-American Court of Human Rights on the obligations of the United States under international law to protect victims of
domestic violence.

This may prove an interesting case of human rights advocates using both national and international courts to establish a new cause of action. Those who have been following Medellin and subsequent cases brought under the the Vienna Convention on Consular Relations (see discussion here) may recall that the first international court decision finding that due process obligations can be read into the consular notification provisions of the VCCR was made in a 1999 advisory opinion of the IACHR. Unlike the US Supreme Court, the IACHR is empowered to issue advisory opinions.

Correction posted 1/2/2005: The US has not yet acceded to the CEDAW, despite playing a central role in its drafting. President Carter signed the treaty in 1980, and it was twice discussed and voted favorably out of the Senate Foreign Relations Committee (1994 and 2002). But it has to date not been sent to the Senate floor for a vote. The US is a signatory to the OAS Charter, but it is not a signatory to and has not accepted the jurisdiction of the IACHR. That means that a decision of the Court that would be binding on the US is not possible. But an advisory opinion (as happened in the VCCR case) is still possible based on the US membership in the OAS.

Because the US is not a signatory to CEDAW, any advisory opinion of the Court would have to draw on other sources of the right. The petition filed by the ACLU relies on the American Declaration on the RIghts and Duties of Man as the source of US obligation as a member of the OAS. And it relies on interpretations of other treaties, including CEDAW, to develop the argument about the contours of the right at issue.

The question of whether private acts — particularly domestic violence — can be considered acts of the state for the purposes of international human rights law has been addressed most extensively within the context of women’s rights. Female genital mutilation, for example, is mostly a private act. Domestic violence is committed by private actors. But the state has a responsibility to protect the human rights of all its citizens. The argument can thus be made that where a pattern of gender discrimination on the part of the state is established, international human rights obligations may be triggered. For a full discussion, see the CEDAW Committee General Recommendation No. 19, which concluded:

[D]iscrimination under the Convention is not restricted to action by or on behalf of Governments (see articles 2(e), 2(f) and 5). For example, under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.

The facts of this case are somewhat different from the scenario contemplated by the General Recommendation. The physical act was not done to the woman herself (though it is clear from the facts she suffered from a pattern of abuse) but to the children. It was a novel claim when it was brought in the federal courts and is, as far as I know, the first such claim to be brought internationally.

Note: The initial post incorrectly stated that the US had acceded to CEDAW and IACHR. The US has signed, but not ratified, CEDAW. It has not acceded to the jurisdiction of IACHR but is a member state of the OAS, which has adopted the American Declartion of the Rights and Duties of Man as a source of human rights obligations for its members. Apologies for any confusion.

I’ve been grading exams this week and reading various student explanations of how a decision on an international legal issue (defining torture) will vary depending on whether the decision-maker has a positivist or naturalist approach to international law. Of course, I could have asked my students to consider other “schools” of international legal theory — e.g., the New Haven School, championed by scholars such as Myres McDougal and Michael Reisman, or the New Stream scholarship of Martii Koskenniemi and David Kennedy. Moreover, I could’ve asked my students to draw on the whole set of “international law and . . .” scholarship, whether it’s Anne-Marie Slaughter’s work integrating international relations theory with international law or my colleague Jeff Dunoff’s work with Joel Trachtman advocating an international law and economics approach. And that’s just the tip of the iceberg.

My question though is how much of this matters to the international law practitioner? I know when I worked at the State Department there was little discussion of international legal theory or reference to how it might influence the outcome of particular cases or problems. Now, of course, I think about theory much more. But I do wonder how often lawyers in practice rely on it, or even consider how the analysis of a particular problem they are facing might vary depending on which “school” of international law they apply. Put another way, I’d be interested in knowing whether those readers who practice international law rather than teach it, self-identify with a particular school of thought, and if so, which one?

This is a quick follow up on my post and Seth’s post, concerning Orhan Pamuk, the Turkish writer who was shortlisted for the Nobel and also faces criminal charges for insulting the Turkish nation.

Pamuk is a great Turkish writer, however he is also a controversial figure, having criticized Turkey for ignoring Armenian and Kurdish massacres. This controversy is something Turkey (and Europe) would like to downplay as Europe is trying to smooth-out Turkey’s accession to the EU. (The winner of the Nobel, Harold Pinter has made his name most recently for his vocal criticism of U.S. policies–if not of America istself–which I gues is not a politically controversial topic for the Nobel Committee.)

So Pamuk didn’t get the Nobel. And, moreover, his problems in Turkey were only beginning.
Pamuk had said in a magazine interview that “One million Armenians and 30,000 Kurds were killed in these lands and nobody but me dares talk about it.” The government of Turkey claims that this violated Turkey’s Article 301, which, according to the BBC, “makes it illegal to insult the republic, parliament or any organs of state. A guilty verdict can carry a prison sentence of up to three years.” And so he is being tried for insulting “Turkishness” and also the Turkish armed forces.

Today Pamuk finally gets a little good news, such as it is: the prosecutors have decided to drop the “insulting the armed forces” charge, although the trial is going forward concerning his alleged insult to the Turkish state.

The EU, though, gets some bad news. The BBC reports:

The same nationalist lawyers behind Mr Pamuk’s indictment have succeeded in opening an investigation into comments made by a Euro MP, who was part of an EU delegation attending the writer’s hearing.
Joost Lagendijk, who chairs the EU parliament committee on Turkey, is accused of insulting Turkey’s armed forces after allegedly saying troops were provoking clashes with Kurdish separatists.

I’ll close with a couple of choice quotes (as reported by CNN) from Turkish Prime Minister Tayyip Erdogan and Pamuk concerning the wisdom of trying people ofr offending “Turkishness”:

“We should not hurry. This is a new law, let’s see how it works, what the outcomes are,” Erdogan said in reference to the law used to put Pamuk on trial for insulting “Turkishness.” “If there are serious problems, then of course the legislature will sit down, make a new assessment and take a new decision.”

In an interview published on Thursday, Pamuk told daily Aksam newspaper that the government should carry out real — not cosmetic — reforms to expand freedom of expression if it really wants to carry the country into the EU.

“For a country to enter the EU, there has to be full respect of minority rights, freedom of thought and expression,” Pamuk said. “If you drag your feet and make cosmetic changes … then this won’t do. To believe that, you would need to be a child.”

Nice to see that this law doesn’t seem to have much effect in quieting down Pamuk.

Over at the Exploring International Law blog, run by Anthony Arend (a former professor of mine at Georgetown), is an excellent post on the question of how any suits regarding warrantless NSA surveillance might reach the courts. I’m sure my colleagues here at Opinio Juris are much more qualified and capable of addressing this question than am I, but from a political perspective, it seems that this is a important issue. While Julian and I may disagree as to the legality of the spying, I do tend to agree with Tony that it’s very unlikely that this will be decided in the courts soon (although the New York Times reports that several men accused of ties to al Qaeda will challenge the legality of the surveillance) . Rather, it will take a political confrontation between Congress and the administration to settle whether or not the president does indeed have sufficient authority to conduct such a surveillance campaign without the explicit authorization from Congress.

I am no conspiracy theorist. I do not think that Bush and Cheney cooked up this scheme to seize power and spy on average everyday Americans or to subvert this country into their own private fiefdom. However, I do believe in the limitation of the power of government. And in this “war” in particular, specifically one that has no metrics for victory and no imaginable end, it seems that we need to be especially careful when we give the president unusual powers to conduct secret operations on American soil. It is hard to envision feckless congressmen mustering the political courage to challenge the president on this in the face of charges like “unpatriotic” and “soft on terror.” This is why, in my mind, it is so important to keep the domestic use of executive power on a tight legislative leash.

My travelling during the past two weeks has prevented me from blogging. Luckily, our intrepid guest bloggers Duncan and Seth have filled in wonderfully, along with our Opinio Juris regulars.

Although I have enjoyed reading posts from both Duncan and Seth (and I hate to start a fight on Christmas Eve), I have to disagree with some of Seth’s analysis of the presidential wiretapping flap. In blogosphere time, I realize I am very, very late to the fray, but better late than never. To sum up my views briefly (because this is a long post): I think the legality of the presidential wiretapping program is a much harder question than Seth and other critics have suggested. It is almost certainly constitutional. The only question is whether it violates a federal statute.

(1) The President has inherent constitutional power to conduct “foreign signals intelligence” or foreign wiretapping.
Although there is no specific text in the Constitution authorizing presidential spying, and (as far as I know) there is no specific congressional statute, there is little doubt that the President’s broad foreign affairs powers permit him to engage in purely foreign intelligence gathering. In other words, even without congressional authorization, the President has the constitutional authority to authorize agencies like the CIA or the National Security Agency to monitor foreign telephone calls and other electronic communications.

(2) The Fourth Amendment almost certainly does not constrain Presidential wiretapping abroad and even wiretapping of cross-border wiretapping
The Fourth Amendment is the main constitutional protection against unreasonable governmental searches and seizures. The Fourth Amendment has not been applied strictly to border searches, even of U.S. citizens, so it seems unlikely that it would apply to cross-border wiretapping, even if one party is a U.S. citizen. The Supreme Court has also held that the Fourth Amendment does not apply completely to U.S. actions overseas, even if the evidence seized in violation of the Fourth Amendment is used in U.S. court.

(3) The Foreign Surveillance Intelligence Act is the only legal limitation on the President’s cross-border wiretapping program
There is only one serious criticism of the legality of the wiretapping program: that it violates the Foreign Surveillance Intelligence Act, a federal statute. Those critics have a very strong argument, as Seth and others have explained. The FSIA is a fairly comprehensive act and the Administration has already admitted that its program does not comply with the FSIA. The Administration’s defense is based on two arguments: (1) Congress has authorized the wiretapping program in its authorization of the use of military force; (2) The President has a fundamental Commander in Chief power to engage in cross-border signals intelligence.

Unlike Seth and other critics, I think these arguments are both relatively persuasive, although I admit that this is a close question and a court could easily find the President in the wrong here. But they could also go the other way. Here’s why:

(4) The Authorization for the Use of Military Force (AUMF) has been interpreted broadly by the Supreme Court and it is also phrased very broadly.

The Supreme Court’s decision in Hamdi v. Rumsfeld upheld the indefinite detention of a U.S. citizen on the basis of the September 11 AUMF. It relied on the AUMF’s broad language authorizing the President to take necessary and appropriate force against those responsible for the September 11 attacks, Al Qaeda, and their allies. This force included detention without probable cause or any rights other than a limited due process right to challenge their designation. The theory was that the AUMF authorized the President to exercise all fundamental powers incident to warfare in carrying out the resolution, and this included detention as an enemy combatant.

In my mind, it is hardly implausible that a President authorized to detain enemy combatants is also authorized to engage in cross border signals intelligence, which implicates far less serious individual liberty interests than detaining someone as an enemy combatant. Moreover, this power is far more likely to fall within the core of the President’s power as Commander in Chief.

Some have pointed to to 50 U.S.C. s 1811 , which limits Presidential surveillance of “foreign intelligence information” to a mere 15 days after a declaration of war. If the statute gives the President 15 days after a declaration of war, one might argue, than how could the AUMF give broader authorization??

(5) The AUMF might actually give broader powers to the President than a Declaration of War

As a structural matter, the AUMF is indistinguishable from a war declaration, with both requiring the assent of both houses of Congress. Moreover, as a textual matter, the AUMF does give the President more explicit authority (e.g. “necessary and proper”) than a typical declaration of war. So it does strike me that there is a plausible argument that the AUMF granted the President more authority than a typical declaration of war would have. In other words, the President gets what Justice O’Connor called the “fundamental incidents” of war but also gets the broad authority to combat those allied with the Sept 11 attacks.

o o o

Is there any limit to what I think the current AUMF authorizes? I think if the facts reveal the program was not really seeking to wiretap suspected terrorists linked to Sept. 11 or AlQaeda, then the program is more likely in violation of the statute. If, for instance, the President was wiretapping his political enemies, than that is a plain violation and probably an impeachable offense. But there is nothing like that even alleged so far.

The functional problem, though, is how to interpret and cabin the AUMF to keep it from being a blank check to the President. I agree this is a problem, although not an insurmountable one. Congress can obviously amend the AUMF or even withdraw it. It can amend the FISA to plainly prohibit the President’s activities here. I just don’t think Congress has spoken plainly here (whatever Tom Daschle says, btw, because after the fact statements by legislators are almost always irrelevant to interpreting a statute). The AUMF, as it is currently drafted and as it is currently interpreted, can and probably does provide legal authority for the president’s wiretapping program.

An Italian Judge today issued a European Arrest Warrant for 22 individuals alleged to have been involved in a CIA abduction of a Muslim cleric in Italy in 2002. Osama Mustafa Hassan was purportedly seized by CIA agents on February 17, 2003 in Milan, without permission from Italian authorities, and sent to Egypt for questioning. Mr. Hassan later alleged being tortured through electrical shock treatments in the interrogations. An earlier Italian arrest warrant had already been issued against the 22 suspects, so today’s action is significant largely because it extends from Italy to all 25 European Union Member States the geographic scope within which these individuals could be detained.

Yesterday, the Fourth Circuit Court of Appeals rejected the Department of Justice’s request to transfer “enemy combatant” Jose Padilla from military to civilian custody to face criminal charges for participating in a terrorist organization. The Court expressed concern that DOJ ‘s criminal case no longer referenced the allegations that Mr. Padilla had taken up arms against the United States in Afghanistan and had been plotting to blow up buildings in the United States with a “dirty bomb” – allegations on which the Fourth Circuit had relied in upholding Mr. Padilla’s detention as an enemy combatant. The court suggested that the government’s actions left “the impression that Padilla may have been held for these years, even if justifiably, by mistake.” The court’s opinion also questioned whether the transfer was motivated by an effort to ensure the Fourth Circuit’s earlier decisions concerning Padilla would not be reviewed by the U.S. Supreme Court.

What do these two cases have in common? They both reflect the increased willingness of courts to check executive power, whether here in the United States or abroad. The Italian judge in the Hassan case is operating without support from Italy’s Executive Branch; the Italian Justice Minister called the judge a “leftist militant” and Prime Minister Berlusconi, a close U.S. ally, said he saw no basis for the abduction case. Similarly, the Fourth Circuit, which until now had been noted for its deference to U.S. Executive interests, has become a significant roadblock to the Executive Branch’s prosecution of Mr. Padilla. Although only anecdotal evidence, both cases suggest that the deference accorded Executive officials to combat terrorism, which was nearly absolute in the immediate aftermath of 9/11, is now seriously on the wane.

Nor is the judiciary the only governmental actor stepping in to check Executive authority. In recent weeks here in the United States we’ve witnessed the McCain Amendment, Congressional resistance to renewing the Patriot Act (with Congress giving it only a one month extension as of yesterday), and Congressional inquiries into Presidential authorization of domestic wiretapping outside of the Foreign Intelligence Surveillance Act (FISA). Similarly, in Europe, the European Parliament has announced its own investigation into allegations that the United States operated secret prisons in EU Member States for high-value terrorism suspects.

Of course, the Executive continues to have considerable authority both here and abroad when it comes to issues involving foreign affairs. In the Hassan case, for example, the Italian Government appears unwilling to request the extradition of the 22 suspects, notwithstanding the judge’s arrest warrants. And in the Padilla case, the Executive Branch hinted that it might go ahead and transfer Padilla to Miami, irrespective of the Fourth Circuit’s opinion, on the ground that it did not need judicial approval for the transfer after all.

Whether the Executive will ultimately prevail in these cases is open to question, but clearly we are leaving the initial post 9/11 period behind, and with it the notion of near absolute judicial and legislative deference to executive power. Future efforts to combat terrorism will require governments to consider the views and positions of all their branches. This may make it harder for the Executive Branch to act in future cases, and we can debate whether that will benefit terrorists. But to the extent future Executive actions are taken with the support or outright approval of their judicial or legislative branches, those actions are likely to have greater support and legitimacy that we have witnessed of late.

In an earlier post, I wrote that the language of the 2001 resolution authorizing President Bush to use force against al Qaeda and international terrorism did not specifically cede power over the domestic arena. Thus, the use of the NSA to monitor the conversations of US citizens in this country without going through the FISA courts was likely both illegal and unconstitutional and could certainly not be justified under Senate Joint Resolution 23.

It turns out that the Bush Administration must have been aware of this problem, as it asked Congress to specifically grant power to prosecute the war on terror domestically. In an op-ed in today’s Washington Post, former Senator Tom Daschle (who was Senate Majority leader during 9/11 and the passage of SJR 23) writes that “minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text.” If Daschle’s accout is accurate, this is a clear indication that the Bush Administration believed that the resolution as drafted was too narrow for its purposes and would not permit domestic activity, such as intelligence operations against US citizens.

In a concurring opinion to Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson wrote that the ability of the president to expand his powers depended on the relationship between the desired action and Congress. When Congress has authorized the president to act, the president stands on the most firm legal and constitutional ground. If Congress has been silent, the president has a good case for action, and the question becomes more of a political one. But when Congress has expressly denied the president a particular power, any action to assume that power is highly suspect. Given that the Bush Administration asked for the ability to prosecute the war on terror domestically and was rebuffed, it seems that the question of use of the National Security Agency to spy on US citizens domestically falls into the third category. I am now even more convinced that, as I concluded in the first post on this matter, that this action by President Bush was both illegal and unconstitutional.

This morning we had our 100,000th visit to Opinio Juris. Peggy, Roger, Julian and I want to thank everyone for reading and returning to our site and especially for taking part in the discussions. We can’t believe that in less than a year there would be 100,000 visits to a site that focuses on our discussions on international law and politics.

In the last year we’ve added a new blogger (Roger), had guests join us (Duncan and Seth, currently), started an interview series, and, in general, tried to bring up some interesting points about foreign policy and international law every day of the year. We try to present ideologically diverse views and engage in a real discussion on timely (and not-so-timely) topics. We hope you have as much fun here as we do.

While today marks our 100,000th visit, next month will be our one year anniversary and we have a few significant changes that we plan on rolling out then. I’ll leave that for the anniversary.

And, as always, if you have suggestions as to how we can improve this site, please contact one (or all) of us. And, if you like what we are doing, please tell your friends and colleagues about Opinio Juris.

Thanks, and we will try to make the next 100,000 visits even better.

In yesterday’s New York Times, we find an article in which UN Secretary-General Kofi Annan bemoans the difficult year the UN has had in 2005. In particular, Annan gripes about the difficulties in creating a new Human Rights Council that will not have to seat notorious human rights violators like Sudan, the grueling ordeal of the oil-for-food scandal, and the problems the UN is having in passing its budget. Relatedly, in today’s Times, we read that while talks between the EU-3 and Iran about Iran’s nuclear program are resuming, there is little hope for significant progress. The main obstacles here are the resistance of Russia and China to referring the matter to the UN Security Council and, of course, Iran’s insistence on its right to develop an indigenous nuclear program that includes enrichment technology.

The common thread, and the largest problem in the development of meaningful and effective international law, is the problem of sovereignty. The UN was created in the aftermath of World War II with two main purposes: the prevention of large-scale inter-state conflict and the protection and promotion of state sovereignty (especially in the wake of the demise of the European colonial powers). Now, however, the purpose of the UN is changing. Inter-state war is no longer perceived as the primary threat to international security, in a large part due to the overwhelming dominance of American military and political hegemony. “Human security” issues like human rights and the prevention of genocide have risen on the security hierarchy, and the “hard” security issues that do exist, like terrorism or proliferation, have a much larger intra-state dimension to them. The problem is that the UN is not well suited to dealing with internal issues. If Russia and China refuse to allow the IAEA to refer Iran to the Security Council, the UN will be unable to act. If enough developing countries resist making membership on UN committees like the Human Rights Council contingent on meeting certain standards (and it’s also likely that Russia and China would object as well), the UN will be unable to act.

What can be done to make international law more credible, enforceable, and relevant? In the short- to near-future, it’s almost impossible to imagine any serious reform transforming the UN into a body capable of handling these kind of issues. While some people may dream of a truly international body that can enforce international law, perhaps it may be time to give that dream up. International law is at its best when it works through inducements (like the WTO) rather than coercion (like UN sanctions). Yes, the WTO has a punishment mechanism, but it really works by promoting cooperation in order to obtain long-term benefits of free trade and open markets. The UN has little to offer countries in order to get compliance on thorny and truly important issues, like nuclear proliferation or genocide. Inducements work best between like-minded countries that see common ground in their national interests. So, perhaps the international system should become bifurcated. The UN can continue to deal with the global issues at which it actually does reasonably well, such as the WHO or UNICEF, and could remain as a global forum to provide peacekeeping and prevent interstate war. Those countries interested in expanding the scope and power of international law could set up their own organization, like the EU, WTO, or NATO, in which sovereignty is curtailed to a greater degree and members gain serious benefits as a payment for cooperation. Of course, this is exceedingly unlikely, but I just don’t ever see the UN, hobbled by sovereignty and vetoes, as being effective.

The Eritrea Ethiopia Claims Commission has issued its final set of awards, including the award concerning liability for starting the 1998-2000 border war between these countries. See press reports from the BBC and CNN.

Eritrea had successfully split off from Ethiopia in the 1990’s after a protracted insurgency. However, tensions still existed and, in particular, there were issues concerning the delimitation of the boundaries of the two states.

The 1998-2000 border war claimed 70,000-80,000 lives. In its wake, and as part of the peace settlement, the Eritrea-Ethiopia Boundary Commission was formed to set the proper boundary between the two states and the Claims Commission was established to resolve the various damage claims arising out of the conflict. The Claims Commission is under the auspices of the Permanent Court of Arbitration (see also the PICT summary), which provides states with rosters of potential arbitrators.

Of the various awards made public on December 19th, the judgment on the jus ad bellum claims–the claims related to the outbreak of the conflict–are especially noteworthy.

According to the award,

Ethiopia contended that Eritrea planned and carried out [a series of attacks beginning in May 1998] against Ethiopia in violation of its obligations under international law, including notably the requirement of Article 2, paragraph 4 of the Charter of the United Nations that all members refrain from the threat or use of force against the territorial integrity or political independence of any State.

Eritrea had four main responses:

(a) the fighting had started on territory that was unlawfully occupied by Ethiopia;
(b) that an Ethipioan armed militia started the fighting with a series of incursions into Eritrea;
(c) Ethiopia declared war on Eritrea (not vice versa); and
(d) Eritrea’s actions were in self-defense.

The Commission denies the legal validity of the first claim—that force can be used to satisfy border diputes. Particulalry since such disputes are so common, weakening this principle “would create a large and dangerous hole in a fundamental rule of international law.”

The analysis of the second response—that Ertirean actions were in response to Ethipian armed militias—provides an interesting analysis of the right of self-defense in the UN Charter. The Commission writes:

As the text of Article 51 of the Charter makes clear, the predicate for a valid claim of self-defense under the Charter is that the party resorting to force has been subjected to an armed attack. Localized border encounters between small infantry units, even those involving loss of life, do not consoitute an armed attack for the purposes of the Charter.

This question of how large a military engagement must be before it is an “armed attack” sets a threshold requirement of Article 51. It may be an extension of the idea that any act of self-defense should be proportional to the attack and that some skirmishes are of such a minimal security threat as to not require any response beyond the fighting of the skirmish itself. I am curious to see if this is a point on which other commentators will focus. (The Commission also noted that Eritrea never invoked Article 51 or notified the Security Council of its acts as self-defense until the Commission hearing.)

The Commission then walked through the facts leading up to the Eritrean incursion into Ethiopia and reiterated that any of Eritrea’s arguments based on the doctrine of self-defense failed for lack of an initial armed attack by Ethiopia.

Concerning the alleged Ethiopian declaration of war, the Commission notes a resolution by the Ethiopian Council of Ministers and Parliament that condemned the armed incursions and demanding an immediate and unconditional withdrawal of Eritrean forces. However, the Commission explains,

This resolution was not, as Eritrea had asserted, a declaration of war. In international law, the essence of a declaration of war is an explicit affirmation of the existence of a state of war between the belligerents.

While Ethiopia demanded the removal or forces and claimed a right of self defense, the parties also kept up diplomatic and economic relations, after the resolution which would not have been expected if this resolution was an actual declaration of war.

Based on these arguments, the Commission found Eritrea liable for the armed attack on and immediately following May 12, 1998. The Commsission did not find adequate evidence to support th claim that the attack was premeditated.

The proceedings will now move to a damages phase to set the amount of compensation to be paid by Eritrea.

This award comes at a time of great danger in Ethiopian-Eritrean relations. The International Crisis Group writes:

The fragile peace maintained by Ethiopia and Eritrea since they signed a comprehensive agreement at Algiers in December 2000 is fraying dangerously. With a costly two-year war now followed by nearly five years of stalemate, patience on both sides of the border has worn thin, and there are worrying signs that the countdown to renewed conflict may have begun. Neither side appears eager for war, but to dismiss the tensions as mere sabre-rattling could mean missing the last chance to preserve peace in the Horn of Africa. The two parties need help urgently from the Algiers Group – the African Union (AU), European Union (EU), UN and U.S. – who witnessed the original accords. Its members need to work together urgently to forge a “3-Ds” parallel process of de-escalation, border demarcation and bilateral dialogue, using both intensive diplomacy and the credible threat (and employment as necessary) of punitive measures….

At the heart of the problem is the ruling of the independent Boundary Commission established to delimit and demarcate the contested border. Both sides agreed in advance that its decision would be final and binding, but the ruling produced a stalemate that has brought them back to the brink of war. The primary bone of contention is the small, dusty border settlement of Badme, where the 1998-2000 war started. Having initially welcomed the boundary decision, Ethiopia reversed itself upon learning (after closer examination of the less than clear documentation) that this town – against the expectations of both sides – had been awarded to Eritrea.

The coming weeks and months will require a delicate interplay of dispute resolution measures, such as the work of the Claims Commission and the Border Commission, and hard diplomacy to prevent the outbreak of further violence in the Horn of Africa.

Secretary General Kofi Annan today announced the adoption of a whistleblower protection policy for the U.N. The policy, which goes into effect next month, is intended to protect U.N. employees who report misconduct and/or who cooperate with investigations:

It is the duty of staff members to report any breach of the organization’s regulations and rules to the officials whose responsibility it is to take appropriate action. An individual who makes such a report in good faith has the right to be protected against retaliation.

This is welcome news for the project of creating genuine accountability at the U.N. and should help promote the kind of cooperation and good citizenship necessary to effective internal audits and investigations. It sets a standard higher than those available to government employees of many — if not most — member states.

The full text of the policy is here.

Today, both the United Nations General Assembly (UNGA) and the United Nations Security Council (UNSC) passed closely coordinated resolutions (see here and here) approving the establishment of a new “Peacebuilding Commission” (UN buffs will find such a procedural move noteworthy in its own right). As for the Commission, it will serve as the UN’s central repository for advising countries emerging from conflict to ensure they continue on the road to recovery. The Commission will have 31 nation-state members, including members who will represent the UNSC, the UNGA, the top contributors to the UN budget, and the top providers of military and civilian personnel to UN missions.

The Peacebuilding Commission is one of the few tangible results to emerge from the much-hyped UN reform summit this past September (the other one to watch for in the next few days would be a new Human Rights Council). The President of the UNGA went so far as to describe today’s move as truly “historic.”

Although calling it “historic” might be mere hyperbole, I prefer to take the reference at face value. As an historical matter, I see the Commission’s creation by UN member states as demonstrating the continuing vitality of what international lawyers call the “Westphalian Legal Order.” This is the notion that since the Treaties of Osnabrück and Münster ended the Thirty Years War in 1648 (collectively known as the “Peace of Westphalia”), the international legal order has functioned as a means of regulating relations among sovereign states. Certainly other subjects of international law now exist beyond the sovereign state, namely international organizations and, to a more limited extent, individuals. Moreover, terrorism provides a near daily reminder that threats to international peace and security can come from non-state actors as much as nation states themselves. But it is also true that international organizations obtain their legal personality through the action of sovereign states, just as individual rights and responsibilities under international law originate in state practice. Similarly, although terrorism may reflect the threat posed by some non-state actors, the tools used to fight it are (so far) largely state-centric through either national or inter-governmental action.

I see the Peacebuilding Commission, therefore, not as some “new” idea, but as a continuation of a much older one. Indeed, the central purpose of the Peace of Westphalia was to guarantee the peace through collective state action. And each of the subsequent (failed) efforts at collective action (e.g., the Congress of Vienna, the Congress of Berlin, the League of Nations, and, since 1949, the United Nations) had the same goal. With all the controversy over the UN’s continuing vitality and the need for reform, it’s fair to say the Peacebuilding Commission reflects one more effort in pursuit of that goal. Thus, as much as we talk about new actors and new threats in international law, it’s worth remembering how sovereign states are still the ones who address these developments and that the older problems of conflict and its aftermath remain. Whether the new Commission will work or not remains open to question (the odds are certainly stacked against it). But it got me thinking – aren’t we still in the same Westphalian Legal Order where sovereign states make the law and create the institutions (if any) to implement it?