As Roger noted a couple of weeks ago, my colleague Nora Demleitner testified on behalf of newly-confirmed Justice Samuel Alito during his confirmation hearings. Nora, a criminal and immigration law expert and a former Alito clerk, has suggested that Alito will be quite progressive on certain immigration law-related issues. Here are some of her further thoughts on Alito’s decision in the Fatin case, which involved a political asylum claim based on fear of gender-based persecution. Her analysis provides a bit more insight into Justice Alito’s thinking about immigration but also on treaty interpretation. It will be interesting to see how this plays out in the next few years.

Why has the Fatin case featured so little in the discussion?

One reason is that it fits poorly into the ideological picture painted of Judge Alito. This is a very progressive opinion on gender-based asylum. In whose interest would it be to discuss it??? Republicans have barely used the case since it wouldn’t play too well with their base, and Democrats have narrowly focused on its holding rather than the overall framework it develops. Ultimately, the panel opinion denied Ms. Fatin her asylum claim since she couldn’t make out a case under the framework Judge Alito developed. In written questions to the Judge, Senator Durbin focused particularly on that point, without acknowledging any of the rationale on which the decision is based.

What did the Fatin case do?

Ms. Fatin was an Iranian asylum-seeker who based her asylum claim, among others, on the argument that she holds Western feminist thoughts that would be unpalatable to Ayatollah Khomeini’s regime. Ms. Fatin claimed asylum based on her political opinion and her membership in a social group. The latter phrase was never defined in the Refugee Convention, and Congress didn’t define it either when it enacted the Refugee Convention into the INA.
Based on BIA decisions, Judge Alito outlined different membership groups based on which Ms. Fatin could possibly claim asylum. He recognized gender itself as a social group. If gender were a social group, it would no longer be necessary to add it as a distinct asylum ground, as many commentators have demanded. However, in most cases women aren’t persecuted solely because they are women. Usually they share some other characteristic, e.g., membership in a minority religion or ethnic group.

Ms. Fatin could not show that the Khomeini government would persecute her based on her gender alone. In fact, she claimed to belong to a narrower group: “‘Iranian women who refuse to conform to the government’s gender-specific laws and social norms.’” The problem with the weak lower court record in this case was that Ms. Fatin had never indicated that she would actually refuse to conform to such laws. Therefore, Judge Alito developed a third membership group: “Iranian women who find their country’s gender-specific laws offensive and do not wish to comply with them.” He found there to be an insufficient showing of persecution as Ms. Fatin hadn’t indicated that compliance with gender-specific laws was so abhorrent to her that it could be called persecution.

Some commentators have argued that Judge Alito set the bar too high, that he would never require such a showing in cases of religious persecution. While that may be true, the issue may be with the category - social group — and the implicit assumptions about it. Judge Alito’s opinion, published in 1993, long before Kasinga, was surprisingly liberal and progressive. It was written by a judge who tried to make the best he could of the lower court record which didn’t give him much to work with. Maybe you can call that judicial activism - but it’s not the type of activism liberals (including myself) usually complain about.

Also note that Judge Alito got a Nixon appointee to sign on to his opinion as well as one of the most respected and thoughtful district court judges in the country, Judge Pollack. One wonders what that may mean for his coalition building on the Court.

The Supreme Court is poised to decide one of the most important cases involving the enforceability of treaties in the last few decades (indeed, maybe the last century). In Sanchez-Llamas v. Oregon, the Supreme Court will consider whether the Vienna Convention on Consular Relations gives such aliens the private rights of action as well as the remedy of suppression for any evidence gathered against them in violation of their treaty rights.

Professor Paul Stephan of UVA Law, joined by eight other law professors (including me), has filed an amicus brief in support of the respondent state governments. I can’t really do the arguments justice here. Suffice to say they offer a unique and often overlooked point of view. When a court aggressively interprets treaties to incorporate international court judgments and to create wide-ranging domestic rights, the court may actualy be discouraging U.S. participation in treaty systems and in international dispute resolution.

The brief has three main arguments, which I paraphrase below:

(1) The VCCR does not create a private right of action. There is no evidence that the drafters of the treaty intended for the treaty to create a private right of action, and the President’s interpretation warrants substantial deference. Most importantly, the Court should avoid finding a private right of action in a treaty unless it is plainly expressed in the text of the treaty, especially since overbroad interpretations of treaties will discourage future U.S. participation in treaty regimes.

(2) Neither comity nor a policy of uniform treaty interpretation compels this Court to regard the Vienna Convention as creating a private right of enforcement. The International Court of Justice, the only tribunal that has reached such a conclusion, is not a national court but an international agency with clearly delimited authority. It lacks the characteristics of a domestic agency that invite judicial deference.

(3) Finally, a decision that the Vienna Convention authorizes private enforcement will disrupt rather than promote uniform treaty interpretation, as no other state has reached such a conclusion.

The Washington Post reports that the U.S. and South Korea will likely announce the opening of talks to sign a comprehensive free trade agreement. For the U.S, such an agreement would represent the most economically significant free trade agreement since the implementation of NAFTA in 1994.

As Roger has noted, the U.S. free trade strategy under President Bush has been to negotiate bilateral free-trade agreements with the most important U.S. trading partners (Singapore, Australia, Chile, Central America, etc). From a free trade perspective, this is better than nothing, but many trade scholars prefer worldwide free trade schemes to these regional or bilateral pacts.

One interesting question for the U.S. and South Korea is whether the two parties will include a dispute resolution system as aggressive and comprehensive as NAFTA (so aggressive that it has sparked this lawsuit challenging its constitutionality). That seems unlikely, largely because it seems unnecessary, but something to keep an eye on.

Fortune Magazine reports about a session at the Davos World Economic Forum on scenarios for possible oil crises in the near future. Bill Browder of Hermitage Capital and George Soros led the session. Soros was particulalry concerned that U.S. over-reach in Iraq would further embolden countries such as Iran that want to overturn the current order. While the hegemon’s away, the rogues will play.

Browder, for his part, set out a series of scenarios:

To come up with some likely scenarios in the event of an international crisis, [Browder’s] team performed what’s known as a regression analysis, extrapolating the numbers from past oil shocks and then using them to calculate what might happen when the supply from an oil-producing country was cut off in six different situations. The fall of the House of Saud seems the most far-fetched of the six possibilities, and it’s the one that generates that $262 a barrel.

More realistic — and therefore more chilling — would be the scenario where Iran declares an oil embargo a la OPEC in 1973, which Browder thinks could cause oil to double to $131 a barrel. Other outcomes include an embargo by Venezuelan strongman Hugo Chavez ($111 a barrel), civil war in Nigeria ($98 a barrel), unrest and violence in Algeria ($79 a barrel) and major attacks on infrastructure by the insurgency in Iraq ($88 a barrel).

Regressions analysis may be mathematical but it’s an art, not a science. And some of these scenarios are quite dubious, like Venezuela shutting the spigot.

Although all admit that none of these scenarios is especially likely, it is important to nonetheless plan in case any of these events occur. Unfortunately, forward planning has not proven to be one of the current administration’s strong points.

Next week will be a busy one at the ICJ.

First, the ICJ will release its jurisdictional judgment in the case brought by Congo against Rwanda on Friday, February 3. Congo filed the case back 2002 alleging that Rwanda violated a variety of international human rights treaties by carrying out armed attacks in Congo during the height of the Congo civil war in the 1990s. This case seems like a sure loser for Congo, on jurisdictional grounds, but we’ll see. In any event, the ICJ did not exactly place this case on its front-burner. After the initial set of hearings on provisional measures, the ICJ ordered briefing on jurisdiction to be completed by May 2003. The parties complied, and the ICJ then waited over two years before holding oral hearings. In other words, Congo will probably have litigated for almost four years to simply get a judgment on whether the ICJ has jurisdiction.

Second, Argentina has announced it will file an application in the ICJ against Uruguay arguing that Uruguay has violated certain treaties by building pulp mills that discharge waste into the river that separates the two countries. No formal application is posted yet, but it seems like it should happen any day now and may result in a useful solution to a potentially nasty border dispute.

Third, the United Kingdom may be facing an application from Cyprus alleging the UK has failed in its treaty commitments as the “guarantor power” to protect Cyprus from Turkish incursions.

The ICJ docket is hardly full, but given it takes the ICJ years to issue jurisdictional judgments, I wouldn’t expect any resolution to these cases anytime soon.

Our past guest blogger Professor Seth Weinberger liked blogging so much that he started his own. Security Dilemmas, already a terrific addition to the blogosphere, will focus on “issues of international and national security, international politics, and international law (and anything else I want to write about).” Check out Seth’s posts on Hamas and the Palestinian elections here and here.

Welcome!

Today’s big news in the narrow category of “celebrities and international law” is that Nicole Kidman has been named a UN goodwill ambassador. The UN Development Fund for Women, to whose work Kidman will be lending her celebrity, issued this press release:

As UNIFEM Goodwill Ambassador, her efforts will be geared toward raising awareness on the infringement of women’s human rights around the world. A particular focus will lie on putting a spotlight on violence against women, probably the most pervasive human rights violation that affects as many as one in three women. Nicole Kidman will visit initiatives supported by UNIFEM to increase visibility for the efforts underway to end gender-based violence.

Kidman is already familiar with the work of UN agencies, having served as UNICEF’s ambassador to Australia for several years. And she played the role of UN interpreter in last year’s aptly named “The Intepreter.”

But what exactly is a “goodwill ambassador?” They are not at all ambassadors in the strict sense of the word. No special diplomatic status or accoutrements attend the position. They are there for photo-ops, fundraising appeals, and awareness raising. This can involve serious work in less-than-plush settings. Even among these celebrity ambassadors of goodwill, there is a hierarchy. At the top are the handful of goodwill ambassadors recruited to represent the whole of the UN organization. This BBC article from 2000 explains the history:

The current set of celebrities is led by a top flight of seven, called “Messengers of Peace”, of which Michael Douglas is one. Others include boxing legend Muhammad Ali, basketball star Magic Johnson and opera singer Luciano Pavarotti. These are personally recruited by UN Secretary-General Kofi Annan. They must have a largely unblemished reputation, a proven interest in humanitarian issues and fame on a global scale. The seven are expected to work hard - on a voluntary basis - to help focus attention on the work of the UN in general.

In addition to the “top-level”ambassadorss selected by the SecGen are those recruited to represent a particular UN agency, as with Ms. Kidman (and Angelina Jolie, who has served as a goodwill ambassador for UNHCR), or a project. The UN appoints a lot of them, not all of them household names in this country. But each must have some level of fame andcelebrityy to lend to the program. This list of UNICEF goodwill ambassadors has a few big US and UK celebrity names. But see how many of the celebrities on this list from UNESCO you recognize.

Kidman deserves some credit for lending her name and time to something that the celebrity touch can help publicize. And she has some humility about it: “I don’t pretend to be an expert on the issues that UNIFEM addresses. But I’m here to learn and lend support to help make visible the very real and immediate problems and the successful strategies that UNIFEM and the women they support work on everyday.”

A treaty demarcating undersea maritime boundaries between Australia and New Zealand came into effect today with pretty much no fanfare. The “Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone and Continental Shelf Boundaries” was the product of five years of Australia-NZ negotiations. Such negotiations are required by the UN Convention on the Law of The Sea, which sets out general guidelines for the allocation of maritime boundaries, but leaves it to individual countries to negotiate particular boundaries.

As I’ve noted here before, China and Japan are locked in a much more hotly-contested negotiation over maritime boundaries in the South China Sea. The stakes there appear to be higher because of known underground reserves of natural resources there and the likelihood of a friendly settlement is much lower because, well, let’s be honest, there is not a whole lot of love between the two countries.

It is still nice to see how smoothly such negotiations can go. Perhaps the Chinese and Japanese can get Aussie and Kiwi mediators?

This week’s news of cost overruns and corruption in the UN Peacekeeping office have a familiar ring. Earlier this week, eight UN officials involved in procurement in the peacekeeping division were placed on administrative leave, and the draft of a forthcoming report on fraud and mismanagement estimates that over $298 million may be lost or unaccounted for as a result of irregularities in the peacekeeping offices. The FT reports:

The unofficial report, seen by the Financial Times, paints a damning picture of poor or bypassed financial controls, insufficient oversight by senior management, as well as a revolving door of employment between UN procurement staff, and the private companies whose services the UN hires.

The scale and allegedly systematic nature of wrongdoing has raised fears of a scandal as large if not larger than the Iraqi oil-for-food programme affair, which may hit even closer to UN headquarters.

The $298m figure, almost a third of the $1bn of contracts examined, was removed from a subsequent final document, as were references to named companies and officials. UN member states will be officially sent the final version.

Christopher Burnham, the UN’s head of management, acknowledged on Monday that the cost of fraud and mismanagement in peacekeeping procurement could go into the “tens of millions of dollars”, and the figure was likely to rise over coming months.

Of course, similar problems–involving larger sums of money (remember the $9 billion unaccounted for?)– have plagued U.S. reconstruction efforts in Iraq. Today’s NYTimes reports that new findings of the Special Inspector General for Iraq Reconstruction reveal widespread financial mismanagement:

The audit, released yesterday by the office of the Special Inspector General for Iraq Reconstruction, expands on its previous findings of fraud, incompetence and confusion as the American occupation poured money into training and rebuilding programs in 2003 and 2004. The audit uncovers problems in an area that includes half the land mass in Iraq, with new findings in the southern and central provinces of Anbar, Karbala, Najaf, Wasit, Babil, and Qadisiya. The special inspector reports to the secretary of defense and the secretary of state.
Agents from the inspector general’s office found that the living and working quarters of American occupation officials were awash in shrink-wrapped stacks of $100 bills, colloquially known as bricks.

One official kept $2 million in a bathroom safe, another more than half a million dollars in an unlocked footlocker. One contractor received more than $100,000 to completely refurbish an Olympic pool but only polished the pumps; even so, local American officials certified the work as completed. More than 2,000 contracts ranging in value from a few thousand dollars to more than half a million, some $88 million in all, were examined by agents from the inspector general’s office. The report says that in some cases the agents found clear indications of potential fraud and that investigations into those cases are continuing.

Others had a similar reaction. “It does not surprise me at all,” said a Defense Department official who worked in Hilla and other parts of the country, who spoke anonymously because he said he feared retribution from the Bush administration. He predicted that similar problems would turn up in the major southern city of Basra and elsewhere in the dangerous desert wasteland of Anbar province. “It’s a disaster,” the official said of problems with contracting in Anbar. No records were kept as money came and went from the main vault at the Hilla compound, and inside it was often stashed haphazardly in a filing cabinet.

The news of widespread financial mismanagement in post-conflict situations, where creation of civil institutions with strong controls on public expenditures is vitally important to successful transitions to stable governance, is particularly troubling. The difference between the UN and US situations is that any mismanagement at the UN — no matter if it is uncovered and punished — may be used by some Member States (particularly the US) as an excuse not to support some necessary programs. US Ambassador John Bolton has already hinted as much. By contrast, mismanagement of US programs is unlikely to affect much of anything, since the Republican-controlled Congress appears disinclined to look to closely at how US taxpayers money has been spent in a war effort it heartily supported. In order for criticism of UN practices to be taken seriously, the US needs to set the best example for the international community. The UN needs better oversight; so, apparently, does the US government.

It all puts me in mind of a memorable, cynical quote from the movie Syriana (which, though a flawed film, has an interesting take on Washington lawyers) about the Foreign Corrupt Practices Act:

Corruption ain’t nothing more than government intrusion into market efficiencies in the form of regulation. That’s Milton Friedman. He got a goddamn Nobel Prize. We have laws against it precisely so we can get away with it. Corruption is our protection. Corruption is what keeps us safe and warm. Corruption is why you and I are prancing around here instead of fighting each other for scraps of meat out in the streets. Corruption is why we win.

Let’s hope not.

Ken Anderson has posted Jean-Marie Henckaerts’ response to his earlier blog commentary on the International Committee of the Red Cross study on customary international humanitarian law. (See earlier Opinio Juris posts here and here.) Henckaerts, who serves as legal advisor to the ICRC, was one of the co-authors of the study. One of the interesting elements of the response is Henckaerts’ justification (correct, in my view, from a doctrinal perspective) for looking at both what states do when they engage in armed conflict and what they say about how armed conflict should be conducted:

An accurate snapshot of customary IHL does not merely require a description of what parties “actually do in actual wars”. This is so because customary international law is formed by a general practice accepted as law. The latter element is often referred to as “opinio juris”. The requirement of a general practice, combined with evidence that this practice conforms to a legal obligation has two important implications:

1. To the extent that field practice is not official and does not represent the legal conviction of the State concerned, it does not count. This implies, in particular, that if actual practice is generally seen as a violation of existing rules, this practice is not of a nature to modify existing rules. That is why notwithstanding numerous reports of, for example, attacks against civilians, pillage and sexual violence these acts are still prohibited under customary international law. The conclusion that these acts are considered to be violations of existing rules can be derived i.a. from a number of verbal acts, such as legislation, case-law and official statements. These verbal acts are therefore important and have to be considered to get the full and correct picture of customary international law.

2. The opposite is also true. Although States may in practice abstain from engaging in certain behaviour, through their verbal acts, qualifying their abstention as mere policy not based on a legal obligation to abstain, they can reserve their right to engage in those acts in the future. That is why attacks against works and installations containing dangerous forces – although seldom or never resorted to in the last twenty years – would still be considered lawful by States in case they constitute military objectives and sufficient precautions are taken. If mere battlefield behaviour were examined such targets would have to be considered off-limit. The same is true for nuclear weapons: on the basis of a mere consideration of battlefield practice, nuclear weapons would have to be considered unlawful – a position clearly not shared by the nuclear powers. This shows that verbal acts have an important impact on how battlefield practice has to be looked at.

Just a day after the U.S. and other Western states expressed concern about the possibility of Sudan chairing the African Union, the AU elected Congo to the chair for a year. (See Julian’s post.) The compromise allows Sudan to take the chair next year, which doesn’t solve the problem, but at least kicks the can down the road for a while. It also allows the AU to continue playing the lead peacekeeping role in Darfur and act as sponsor for the peace process there.

This last-minute change may demonstrate that, despite protocols and gentleman’s agreements, states are capable of acting on the underlying merits when it comes to chairing international organizations. Let’s see if there is a lesson in there for a Human Rights Council.

Canadians voted today in a hotly contested election pitting a resurgent Canadian Conservative Party against a defensive but still dominant Liberal Party. Early results show the Conservatives winning a plurality of the seats. They still may not have enough seats, however, to form a government.

I don’t have a dog in this race, but I am struck that one of the major lines of attack on the Conservative Party leader Stephen Harper is that he is “an extremist with ties to the United States.” (emphasis added). That is shocking indeed, and it is wonder he managed to get as many seats.

I suppose if Canadians hate Americans, then it is hard to imagine who loves us. Still, I wonder how much of this language is silly posturing and a reflection of a particularized Canadian form of nationalism driven largely by defining Canada as the “Not-America” (a phenomenon I ruminated on this past summer here). This same form of strange anti-American nationalism is endemic to South America as well, where political leaders show off their anti-American toughness as a way to get votes.

I’m sure some of this is driven by U.S. foreign policy, but some of this would no doubt occur no matter who was President. The U.S. pretty much does nothing to Canada except put some tariffs on part of its lumber industry. Meanwhile, the U.S. is Canada’s largest trading partner and its guarantor of national security.

Yet America still looms large as the “Enemy”. Very odd and somewhat pathetic.

In an unfortunate rotation, the African Union’s annual summit is being held in Khartoum, Sudan this year. This is unfortunate because the host always is nominated for the leadership of the group, but that would mean the AU this year would be headed by perhaps its most unsavory member: the government of Sudan.

This minor leadership battle is a larger challenge for the African Union, which has aspirations to build better political relations in Africa, including the deployment of peacekeeping forces and the creation of a court of human rights. But such an organization is not likely to succeed in becoming an effective organization if it is led by the countries most likely to be the subject of peacekeeping operations and criminal investigations.

Speaking of war crimes trials, according to press reports, Ra’uf Rashid Abdul Rahman, a judge on the Iraqi Special Tribunal, will be elevated to Chief Judge to replace Rizgar Muhammad Amin, who submitted his resignation from the court a week ago. Last week the Iraq government announced that Amin would be replaced by Said al-Hammash, another judge on the tribunal. (As I understand it, Hammash’s name was withdrawn amid protests that he was a former member of the Baath party; presumably such membership would have disqualified him from any position on the tribunal.) In the meantime, political leadership in Iraq is trying to convince Amin to stay on the tribunal, even in a lesser role, to preserve the continuity of the court and to counter reports that Amin resigned due to political pressure.

Saddam Hussein’s trial is set to resume tomorrow. It is important that the tribunal itself has its act together. Given the uncertainty of the past week and the machinations over the judges, that may not be the case. And changes to the composition of the court give defense counsel precisely the kind of ammunition they need to attack the procedural and substantive fairness of the tribunal. I tend to agree with William Schabas, who has been providing thoughtful commentary over at Grotian Moment:

This is a wake-up call to all who are concerned that the trial of Saddam Hussein be carried out fairly and impartially. It may well be that the current situation in Iraq, which borders on anarchy, is simply not conducive to proper justice being rendered. If that is the conclusion, the trial should be stopped, or it should be moved to a venue where justice can be done.

Michael Scharf, David Crane, and Mike Newton have additional insights (drawn from their considerable collective experiences with the ICTY, Sierra Leone Special Tribunal and the IST) at Grotian Moment on both the initial wisdom of carrying out the IST in Iraq with Iraqi judges, and the potential for moving the trial to a location outside Iraq.

Yesterday’s NYTimes ran this piece about the recently released minutes of Winston Churchill’s wartime cabinet meetings. Here are the notes about Churchill’s reluctance to try Nazi war criminals and his preference for execution without trial:

As early as July 6, 1942, Churchill was clear about what to do with Hitler.

If Hitler falls into our hands we shall certainly put him to death. Not a sovereign who could be said to be in hands of ministers, like Kaiser. This man is the mainspring of evil. Instrument - electric chair, for gangsters no doubt available on Lease Lend.

On April 12, 1945, as the war drew to a close, Churchill rejected the idea of a war crimes trial.

Agree the trial will be a farce. Indictment: facilities for counsel. All sorts of complications ensue as soon as you admit a fair trial. I would take no responsibility for a trial - even though U.S. wants to do it. Execute the principal criminals as outlaws - if no Ally wants them.

After the Nuremberg trials were underway, Churchill’s view of the power of prosecution altered. The Claremont Institute blog posted a memo on this subject by Larry Arnn. This is how he portrays Churchill’s later views, which can be summed up as a kind of Churchillian relief at “victor’s justice”:

July 30, 1946: “He said he had had, during the War, no idea that the German atrocities had been on the scale that the Nuremberg evidence had shown them to be. And although he had had misgivings about that trial at the beginning, he now felt it was well justified. This was largely because of the groveling attitude of the defendants. If he had been in the dock (as indeed he certainly would have been if the war had gone the other way), the line that he would have taken was–’we do not recognize the competency of your court. We will await the verdict of the German people, whom we served, in twenty or thirty years’ time. You won the war; take your vengeance on us in whatever way you like. We do not recognize any authority above the rights of the German State.’ But undoubtedly the enormity of the crimes had come as a surprise to the defendants themselves.” The source for this is notes taken during a luncheon by Allen Campbell-Johnson.

In November 1946 in a speech in the House of Commons he treated the Nuremberg Trials as a purgative. He portrayed it as a substitute for the persecution or prosecution of ordinary Germans.

Also in 1946, probably sometime in November, Lord Ismay was with Churchill when he heard the results of the Nuremberg War Trials. Ismay was close to Churchill, senior military man during the War, and later the first military head of NATO. He said: “I happened to be with him at Chartwell when the results of the Nuremberg Trials of the Nazi war criminals were published ‘it shows’ he remarked, ‘that if you get into a war, it is supremely important to win it. You and I would be in a pretty pickle if we had lost.’”

This week I’ll be one of a number of guest-bloggers over at PrawfsBlawg. This is an opportunity for me to post about stuff not directly related to international law. But never fear, I will continue to be posting here as well. Should be fun. Please check in.

Cool! A U.S. Navy vessel has boarded and captured a suspected pirate operating off the coast of Somalia. As Roger noted a while ago here, pirates recently chased a cruise liner in the same waters. It looks like the U.S. Navy is on the case.

But what legal authority does the U.S