Archive for
June, 2008

Virginia Journal of International Law, Vol. 48-4: Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law will continue its partnership with Opinio Juris this week with an online symposium featuring three articles recently published in VJIL Vol. 48-4, available here.

Our discussion on Tuesday will focus on the constitutional history of American empire at the turn of the twentieth century. In her article, “They say I am not an American…”: The Noncitizen National and the Law of American Empire, Christina Duffy Burnett (Columbia) revisits the historical events surrounding the Supreme Court’s decision in Gonzales v. Williams (1904), which relegated Puerto Ricans to an ambiguous status between alienage and citizenship. Challenging mainstream historical critiques which focus on the ways in which the United States unilaterally imposed its own law abroad and influenced other legal traditions, Professor Burnett analyzes the events surrounding the Gonzales decision to argue that the civic and political leaders of the colonial periphery brought a transnational perspective to the debate over law and American empire and transformed U.S. law in the process. Professor Mae Ngai (Columbia) and Sam Erman (University of Michigan) will be the respondents.

On Wednesday, Martin Totaro will discuss Legal Positivism, Constructivism, and International Human Rights Law: The Case of Participatory Development. Mr. Totaro uses the debate surrounding the right to participatory development as a lens for viewing international human rights law generally. By offering a typology of international human rights law and applying that typology to recent shifts in rhetoric and practice at the World Bank regarding participatory development, Mr. Totaro examines the sociopolitical nature of rights recognition as a means of describing the early stages of norm development within customary international law. Galit Sarfaty (Harvard) will be the respondent.

On Thursday, we will conclude our symposium with a look at the role of empiricism in international investment law. In her essay Empiricism and International Law: Insights for Investment Treaty Dispute Resolution, Susan Franck (Washington & Lee) considers the recent move towards the reintegration of international law and empiricism and proposes five steps towards the creation of an empirical research agenda for international investment treaty dispute resolution. Professor David Zaring (Wharton) will be the respondent.

We encourage you to join in the online discussion this week. Throughout the symposium, we hope that you will visit our website to read full copies of the articles and to continue the scholarly conversation.

Further Evidence of the Move to Peer Review: New Journal International Theory

by Peter Spiro

Does Cambodia’s Amnesty Have To Be Honored?

by Julian Ku

No Progress in the Lubanga Trial

by Kevin Jon Heller

There Will Be Blood

by Chris Borgen

Kristof: “If Only Mugabe Were White”

by Peggy McGuinness

Where Else Does the Great Writ Extend? Afghanistan???

by Julian Ku

U.S. and E.U. Near Agreement on Sharing Personal Data

by Julian Ku

Is the ICC Overreaching in Darfur?

by Julian Ku

Canada Quietly Seeks to Withdraw ICC Warrants in Uganda

by Julian Ku

Wittes’ Law and the Long War: Wise Counsel for the Age of Terror (If That’s What We’re In)

by Peter Spiro

An Important Maori Land Settlement — But Where’s the Treaty Itself?

by Kevin Jon Heller

Justice Breyer Rejects Pragmatic Comparativism in Heller

by Roger Alford

World Attitudes Toward Torture

by Kevin Jon Heller

International Economic Law Interest Group Call for Papers

by Peggy McGuinness

A Perfect Day for Comparativism

by Roger Alford

The International Consensus that Didn’t Bark: U.S. Supreme Court Invalidates Death Penalty for Child Rape

by Julian Ku

Should the U.S. Enact Laws Punishing Crimes Against Humanity? Sure, But It Still Won’t Save Darfur

by Julian Ku

Sue OPEC? Or Regulate NYMEX?

by Chris Borgen

Council of Europe Criticizes Italy; Italy Continues to Persecute Roma

by Kevin Jon Heller

Belgium “Investigating” Bagambiki at Rwanda’s Request

by Kevin Jon Heller

Obama’s Global Appeal

by Roger Alford

Independence Day Quiz

by Kevin Jon Heller

Three Narratives of Medellin v. Texas

by Peggy McGuinness

Putting a Face on Those Bureaucrats in Geneva

by Peter Spiro

Okay, in Rome, not Geneva, but the point holds. Following in Duncan’s footsteps, I’ve been teaching here for the month in a Temple Law summer program. On Friday, we had an interesting visit to the UN’s Food and Agriculture Organization, which is headquartered here, with presentations by several lawyers in the agency’s legal service.

It was interesting stuff. FAO has its hands in a broad range of policy, including things like forestry and land ownership regimes. Of necessity, it takes the road of persuasion and expert assistance rather than trying to exercise muscle that it probably doesn’t have. Probably a nice example of government networks at work, this time through agriculture ministries (here’s a "framework agreement" between the FAO and the USDA). This was all news to me — being an international legal academic these days is about as meaningful as being an "American law scholar" — there’s just way too much to get your hands around. The lawyers, including our host, American Jessica Vapnek, came across as thoughtful and highly knowledgeable.

But the kicker was a short appearance at the end by Deputy Director-General James G. Butler. He is straight out of central casting to play the cattle commissioner of the state of Texas, right down to the cowboy boots and a drawl to match, and here he is, doing the good work of the United Nations. Butler gave a short talk to our students exhorting a life in public service, including, by implication of context, a life in international public service.

I have no idea how Butler came to be number two at FAO (although I assume the Bush Administration had something to do with it), and I have no idea how he really fits into the international bureaucracy (although it doesn’t appear to be in a John Bolton/fox-in-the-henhouse kind of way). This is not the kind of person that gives the anti-internationalists much of a target, for whom the bureaucrats in Geneva have long supplied a punchline. Not only is he not a foreigner, he’s got none of the traits of the chattering classes that might make him look like one, the citizenship notwithstanding. If this is the new face of global governance, sovereigntism hasn’t got a chance.

Can Afghanistan Invoke the “Hot Pursuit” Doctrine to Enter Pakistan?

by Julian Ku

Thanks to Haider Hamoudi

by Chris Borgen

D.C. Circuit Allows Chabad Case Against Russia to Go Forward

by Roger Alford

How to Set Up Your Own Country

by Julian Ku

It’s the Economy, Stupid (even in Iraq)

by Haider Ala Hamoudi

Legal Change and Iraq

by Haider Ala Hamoudi

Can President John McCain Execute Osama Bin Laden Without a Trial? Nope.

by Julian Ku

Avena is Back at the ICJ: What’s the Point?

by Julian Ku

Shi’ism and the Viability of the New Iraq

by Haider Ala Hamoudi

Iraq(s?)

by Chris Borgen

Curtis Bradley on Benjamin Wittes’ Law and the Long War

by Chris Borgen

China and Japan Agree (Sort of) to Jointly Develop Disputed East China Sea

by Julian Ku

The Rule of Law and Lawless Contractors

by Haider Ala Hamoudi

The Great Tomato Trade Wars

by Roger Alford

Life and Law in Iraq

by Haider Ala Hamoudi

Opinio Juris Welcomes Guest Blogger Haider Hamoudi

by Chris Borgen

Closing Remarks on Boumediene Insta-Symposium

by Roger Alford

I wanted to thank all of our participants for a wonderful “insta-symposium” on Boumediene. I certainly learned a tremendous amount from our guests and greatly appreciate their willingness to participate and thoughtfully engage.

I wanted to end by addressing some of the comments expressed concerning the format of these insta-symposia, especially on the issue of diversity. In organizing this event, I took pains to find experts in the field who provided diversity in terms of viewpoint (left and right), seniority (young scholars and seasoned veterans), professional expertise (historians, advocates, military experts, foreign relations scholars), gender, race, etc. But obviously we are always open to constructive criticism. So I wanted to offer you a chance to provide your thoughts about these insta-symposia, both in terms of the format and the diversity of voices. Please vote and, if you so desire, add any additional thoughts in the comments.

Please provide your evaluation of Opinio Juris’ effort to offer “insta-symposia” of major Supreme Court cases
Yes, definitely a welcome addition.
Yes, but improve the format
Yes, but offer greater diversity of voices
No, not my cup of tea


Free polls from Pollhost.com

Deference Reconsidered

by Julian Davis Mortenson

Deborah Pearlstein and Michael Newton wonder what’s left of judicial deference in the wake of Boumediene. It’s a good question: certainly if you listen to the Boumediene dissenters, the answer is “not much.” Chief Justice Roberts rails against “unelected, politically unaccountable judges” and “the rule of lawyers” in concluding that “this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants,” Slip Op. 2, 28 (Roberts, C.J., dissenting). And Justice Scalia is quick to echo his colleague, suggesting that the majority has “blunder[ed] in” behind a posture of “faux deference” to hide its “inflated notion of judicial supremacy.” Slip Op. 5 n.1, 6, 17.

In one sense the dissenters’ rhetoric is fairly standard stuff, albeit unbecomingly vitriolic. But there’s an issue here that goes beyond mere rhetoric: I think in this case the dissenters may actually misunderstand the majority’s conception of how deference ought to work. It’s true that the Court is unwilling to defer to the political branches’ categorical elimination of a fundamental liberty right, particularly one which it describes, as Ted White points out, as the only procedural right incorporated in the original Constitution. It is also true that the Court is unwilling to defer on which large categories of procedural rights should be included in “the sum total of procedural protections at all stages, direct and collateral” afforded to accused enemy combatants. Slip. Op. 54. The Court instead insists on setting the essential terms of review itself, guaranteeing meaningful opportunities for petitioners to assess and challenge the government’s evidence; to present exculpatory evidence; to proceed adversarially rather than inquisitorially; to receive speedy review; to mount a legal challenge to the Executive’s power to detain; to obtain an order of unconditional release; and above all else, to avoid indefinite detention on the basis of a process that threatens a considerable risk of error. See generally Slip Op. 59-63.

The Court decided that the CSRT and DTA weren’t intended to offer any of this, notwithstanding Justice Roberts’ description of them as a “good faith” effort to implement Hamdi. (I don’t want to beat the drum on this point any more than I did in my last post, but the Court is absolutely right, and Justice Roberts absolutely wrong. See pp. 3-6 and 26-33 here for a highly condensed summary of why that’s the case.) And so the Court found the MCA unconstitutional.

But it seems clear to me from the tone and approach of the Boumediene majority that a serious and systematic effort to lay down rules—certainly procedural, and perhaps to some extent even substantive—governing preventive detention is likely to be respected by this Court. In its concluding paragraphs, the majority underscores that “[t]he political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Slip Op. 69. Earlier in the opinion, the majority emphasized that “proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time.” Slip Op. 65. Given that the Court has just overruled Congress’ first venture into this area, how precisely will this deference be realized? The opinion makes it clear: through the inverse relationship between the scope of habeas review and the procedural rigor of any prior proceedings, a phenomenon that plays a crucial role in the majority’s adequacy analysis. See Slip Op. 52 (“The necessary scope of habeas review in part depends upon the rigor of any earlier proceedings.”); id. at 57 (“habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here”).

(It should be noted that all this deference language may have one caveat. The majority pays notable attention to the savings clauses in both Swain and Hayman, which provided that “a writ of habeas corpus would be available if the alternative process proved inadequate or ineffective.” Slip Op. at 48. Congress might thus be well advised to provide for some flexibility in instances where law and equity require—the majority emphasizes, after all, that “common-law habeas corpus was, above all, an adaptable remedy. Slip Op. at 50. But such a clause seems unlikely to have much practical significance. The relatively rare success of original writs after AEDPA suggests that courts are unlikely to use escape clauses or flexible language to run roughshod over a carefully calibrated congressional scheme.)

So, returning to Michael’s important questions about the application of CIPA, the introduction of hearsay, the production of witnesses, interaction with counsel, and so forth, my own strong sense is that the court would love to defer to a reasonable resolution of these issues—specifying the particular mechanisms and legal tests by which the Court’s high-level procedural commandments will be implemented—so long as it is clearly the result of a process aimed at protecting the basic right of a detainee to demonstrate his innocence. And I frankly suspect that such deference is likely even on the question of the substantive authorization to detain, so long as the definitions of detainable persons are sufficiently nuanced—for example, varying in some systematic way, perhaps based on time of detention and the threat that is allegedly presented by the detainee (two factors that are mentioned in the Boumediene majority).

If this is right, then Congress has a choice. It can let the Article III courts work out the crucial questions of our legal structure for counterterrorism, including both the substantive categories of people the President is authorized to detain, and the procedures to determine whether a given petitioner falls in a detainable category. Or Congress can take on those tasks itself. In assessing this choice, Marty Lederman argues quite plausibly that there is no rush to institute a new preventive detention statute, particularly given the unhealthy political climate of election season. But on the broader question of whether Congress should be involved at all, I tend to sympathize with Ben Wittes’ desire for active participation by the most democratic branch of government, largely because the “paradigm problem” outlined here by Geoffrey Corn and David Scheffer fairly demands democratic participation in its solution.

But whatever the wisest course may be, my point is simply that the Court seems likely to defer to reasonable congressional implementation of the broad directives outlined in Boumediene. What are reasonable procedures? How long is a reasonable period of time? So long as Congress appears to have taken the core requirements seriously—so long as it can plausibly claim that it sought to “provide defendants with a fair, adversary proceeding”—the Boumediene majority suggests that congressional determinations about the details of procedure will receive significant deference.

One quick note about Justice Scalia’s accusation that the majority has extended an act of grace to our “enemies” (Slip Op. 1) (Scalia, J., dissenting). This is simply dishonest. Scalia’s formulation assumes, even if only rhetorically and morally, the conclusion of this entire controversy. The ultimate substantive question here, as Steve Vladeck has well articulated elsewhere, is whether these detainees are in fact “our enemies.” It is simply non-sensical to hinge the availability of an innocence-proving mechanism on whether the person seeking to use that mechanism is innocent. Scalia’s prominent and repeated formulation was not a responsible presentation of this case to the country at large.

With that, my time here is up. I’ll leave the last word on what Eric Freedman rightly describes as a momentous case to one of the Court’s most understated members, who offers a typically commonsensical summary: “today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.” Slip op. 3 (Souter, J., concurring). The time for perseverance is not yet over.

What’s the Point of Eliminating Letter Grades?

by Kevin Jon Heller

More on Eisenstrager

by Chimene Keitner

After posting my initial comments, I remained troubled by Julian’s criticism of the majority’s treatment of Johnson v. Eisenstrager. I’d like to offer a few more reflections on that decision here.

The Eisenstrager opinion was certainly based largely on territoriality and citizenship, as Julian points out. However, practical considerations were not irrelevant to the Eisenstrager majority’s decision, or else the majority would not have mentioned them. Although Justice Scalia characterizes the practical considerations raised in Eisenstrager as support for the majority’s holding, rather than part of the holding itself, this seems a difficult distinction to draw with confidence in reading an opinion that was clearly animated by many concerns.

The Boumediene majority explicitly indicates that its functional reading of Eisenstrager is designed to reconcile Eisenstrager with the approach of the Insular Cases and with Reid v. Covert (an explanation that Justice Scalia rejects). So, although Julian is correct that Eisenstrager certainly does not tell us to look only at function, the Boumediene majority is equally correct that Eisenstrager does not tell us to look only at form.

Even to the extent that Eisenstrager does look at “form” (citizenship status plus absence of de jure sovereignty), it is not on all fours with Boumediene because, as the majority points out, the Boumediene petitioners “are foreign nationals, but none is a citizen of a nation now at war with the United States.” The Eisenstrager majority’s opinion is inscribed in, and inseparable from, the traditional statist paradigm in which an individual’s legal standing is determined with reference to his or her country of citizenship, a fortiori in times of war. For example:

– “our law does not abolish inherent distinctions recognized throughout the civilized world between … aliens of friendly and of enemy allegiance”

– “The security and protection enjoyed while the nation of [the alien’s] allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us.”

– “The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.”

– “The essential pattern for seasonable Executive constraint of enemy aliens [has been laid down] not on the basis of individual prepossessions for their native land but on the basis of political and legal relations to the enemy government…”

The above quotations make clear the importance of the Eisenstrager petitioners’ enemy alien status to the majority’s decision-with an emphasis on enemy, not just alien. The Eisenstrager majority accepts the assumption that a given individual is “faithful to his allegiance,” and that it is therefore appropriate to take “measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.” Based on this assumption, and buttressed by the U.S. military tribunal’s conviction of the petitioners for providing intelligence to the Japanese forces in China, the majority (in an early articulation of the concept of lawfare) refuses to place “the litigation weapon in unrestrained enemy hands.”

Justice Scalia’s dissent in Boumediene adopts a monolithic notion of “the enemy” that might be appropriate, if not descriptively accurate, in the context of a war between states. It is neither appropriate nor accurate here. Fighting “the enemy, in Afghanistan and Iraq,” which is how Justice Scalia characterizes the United States’s current military engagement, is not the same thing as being at war with Afghanistan and Iraq. According to lists compiled by the Washington Post, citizens of almost 50 countries have been detained at Guantanamo. Certainly, the Eisenstrager majority would have balked at the notion that the United States could “impute” the “commission of hostile acts” as the intention of each of these individuals “because they are a duty to his sovereign.” Precisely because that is not what the United States is doing here, the Eisenstrager rationale cannot be imported wholesale to resolve the Boumediene dilemma.

Whatever the merits or failings of the ascriptive allegiance approach in Eisenstrager, it does not transform the Guantanamo detainees into enemy aliens. And, even if it remains binding precedent, it does not dictate that alien detainees can never seek review of their extraterritorial detention in federal court.

SCOTUS Decides Important Foreign Sovereign Immunity Case

by Julian Ku

Commentary to Boumediene

by Caroline Kaeb and David Scheffer

While I fully agree with Justice Kennedy’s majority opinion and Justice Souter’s concurring opinion in Boumediene v. Bush, I found it significant that neither those opinions nor the two dissenting opinions of Chief Justice Roberts and Justice Scalia found it necessary or desirable to refer to international law despite the relevance of that body of law to the earlier Guantanamo cases of Hamdi, Rasul, and particularly Hamdan. Of course, one should never be surprised or alarmed at sole reliance on U.S. law and precedent in a federal court’s adjudication of a dispute. But in Boumediene the opportunity existed to confirm that even if one were to accept the dissenters’ view that Guantanamo remains outside of U.S. sovereign de jure jurisdiction and thus, in their view, outside the reach of the Constitution’s habeas corpus protection, there are minimal due process rights and fundamental guarantees established in the International Covenant on Civil and Political Rights and in the Geneva Conventions (treaties to which the United States is a State Party) and in customary international law (including Article 75 of Geneva Protocol I, reaffirmed by the plurality in Hamdan) that point to a duty by U.S. officials, wherever they operate in the world, to provide far better access to the legal rights underpinned by habeas corpus (as part of the broader principle of a fair and speedy trial) than has been afforded by the Bush Administration in its detainee policies since 9/11 or by the U.S. Congress (in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006).

The self-inflicted and increasingly fatal wound of the government and of the dissenters was the original decision to create the novel “unlawful enemy combatant” category for Guantanamo detainees that purported to deny them both prisoner of war status under the Geneva Conventions (and the fair trial rights of POWs) and any terrorist categorization under U.S. federal criminal law compelling prosecution before long-established criminal courts and under the anti-terrorism laws already available in the U.S. Code.

The legal vacuum into which the Bush Administration threw all Guantanamo detainees distanced such individuals from the rationale advanced by Justice Scalia in his dissenting opinion, where he relies so heavily on distinguishing the Johnson v. Eisentrager precedent from the majority’s view of it. The German defendants in Eisentrager were prisoners of war who had been prosecuted before a duly constituted U.S. military commission in China for violating the laws of war during armed conflict (WWII) outside the United States. Their prosecution, and the Supreme Court’s affirmation of the denial of habeas review in Eisentrager, occurred in part because they had prisoner of war status when prosecuted and the procedures under which they were prosecuted were deemed by the Supreme Court to satisfy due process requirements for a U.S. military trial held overseas on territory over which the United States had neither de jure nor de facto sovereignty. In contrast, it is the lack of prisoner of war status for the Guantanamo detainees (even those with strictly Taliban associations) and the insufficient application of necessary due process standards, particularly in a flawed military commission on territory over which the United States exercises de facto sovereignty (namely, Guantanamo), that compels the majority in Boumediene to focus on the habeas corpus right and the necessity of its availability under the circumstances of Guantanamo.

Scalia fumbles within his own reasoning by analogizing the Guantanamo detainees to “the more than 400,000 prisoners of war detained in the United States during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court—and that despite the fact that they were present on U.S. soil.” If only that were the case under these circumstances!

What if, from the beginning of the U.S. military invasion of Afghanistan in 2001, the government had clearly established the constitutional basis for waging a war (and not the rhetorical battle cry of the so-called war on terror) and established two sets of detainees—those classified as prisoners of war and detained at U.S. facilities either on U.S. territory or on foreign soil (including Guantanamo where U.S. de facto sovereignty resides), and those classified as terrorist suspects and arrested for trial as terrorists before U.S. federal courts?

The prisoners of war—who, by the way, need not satisfy every single condition of Article 4 of the Third Geneva Convention to be accorded prisoner of war status or comparable status by the detaining power—could have been held without access to habeas corpus and without trial for the duration of a reasonably-defined state of war. The government could have used its discretion, assuming the war was properly authorized, legitimately to categorize certain terrorist suspects and most if not all of the Taliban soldiers as prisoners of war. That would have satisfied Justice Scalia’s preference for denial of habeas corpus for such alien enemies. There would not have been a legal vacuum of the character the dissenters in Boumediene have so consistently endorsed in the Guantanamo line of cases. Granted, those individuals whom the government desires to classify as international terrorists would have to be indicted, arrested, transported to the United States, and brought to trial in accordance with U.S. requirements of due process, including habeas corpus. The artificially-concocted category of “unlawful enemy combatants,” which has been the gateway to the Bush Administration’s distortion of both the law of war and anti-terrorism law, never would have survived the earliest scrutiny.

“What if?” never trumps reality, but the Supreme Court’s majority opinion in Boumediene invites us to speculate how different this entire mess would have been if only American policy-makers had had greater faith in long-standing federal law and the Constitution. The dissenters are seemingly intimidated by the terrorist suspects and others swept up for detention at Guantanamo, all of whom were labeled as “unlawful enemy combatants.” The dissenters continue propping up the deeply flawed detention procedures and military commission system that were carved out of fear not only of terrorism but of the Constitution, rather than upholding the Founders’ commitment to the rule of law. It is the latter that will best defeat international terrorism directed against the United States and not the Bush Administration’s approach, which was struck down once again by the Supreme Court.

The ICC Stays Lubanga’s Prosecution — and May Let Him Walk…

by Kevin Jon Heller

Becky Hammon Is Not a Traitor

by Kevin Jon Heller

Function Over Form

by Chimene Keitner

Many thanks to the Opinio Juris team for hosting this conversation, and to colleagues who have already offered such interesting and insightful posts. In this spirit of exchange, I’ve crafted comments that I hope will challenge and extend some of their observations, as we all continue to digest this momentous opinion on- and off-line. The benefit of continued reflection will no doubt reveal shortcomings in my preliminary reactions. My current research takes a comparative look at the application of constitutional protections to non-citizens when a government acts extraterritorially, so stay tuned for more in-depth analysis in my next article!

The Boumediene majority frames its question broadly, but answers it narrowly. It asks “whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection” (slip op. at 15). But, as Marty Lederman pointed out in an early post, the Court’s decision does not address this broader question, confining its holding to “a territory, like Guantanamo, over which the [U.S.] Government has total military and civil control” (slip op. at 16). The majority speaks the language of “de facto sovereignty,” which Roger Alford in his second post appropriately highlights as a critical concept in the majority opinion. It seems to me that this term is used more as a counterpoint to the Government’s emphasis on de jure sovereignty, and does not do much independent work as a meaningful concept in and of itself. At a minimum, the majority is clear about what it understands this concept to encompass for the purpose of deciding this case: those enclaves in which “no [municipal] law other than the laws of the United States applies” (slip op. at 21), and in which the United States can, as a practical matter, enforce the judgments it issues (id.).

The territorial limits of the majority’s logic should provide comfort to its detractors, and prevent complacency among its enthusiasts. The Supreme Court has yet to issue a blanket opinion prohibiting the U.S. government from acting arbitrarily vis-à-vis non-citizens in its custody and control overseas, whether the constraints on arbitrary action come from the Constitution or from international law. A starting-point for such a decision could be the majority’s statement that “[e]ven when the United States acts outside its borders, its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as are expressed in the Constitution'” (slip op. at 35) (citing Murphy v. Ramsey, an 1885 case upholding a statute denying the vote to any “bigamist, polygamist, or any person cohabiting with more than one woman” in the Territory of Utah). However, it seems to me that the majority here is more concerned with what it views as the coordinate branches’ gall in attempting to insulate their activities from judicial scrutiny by relying on a century-old lease, than with articulating a comprehensive theory of what Peter Spiro in his post dubs “constitutional cartography” (a job for us academics).

It comes as no surprise that Justice Kennedy authored the majority opinion in this divisive case, or that his reasoning about the extraterritorial reach of habeas jurisdiction is framed expressly in functional, rather than formalist, terms. Prior to the Boumediene decision, I had begun thinking of a more context-sensitive approach to the extraterritorial application of constitutional constraints and protections in terms of what I call “bounded functionality” (this is perhaps one version of the “something in between” that Roger evokes in his first post on Gerry Neuman’s typology of approaches to the territorial reach of the Constitution). I look forward to continued conversations about how these approaches can inform judicial reasoning.

In his second post, Julian Ku criticizes the majority’s focus “practical and functional considerations” for its unpredictability. In his view, the majority’s willful misreading of Johnson v. Eisenstrager will force government lawyers to assume maximalist, rather than minimalist, interpretations of applicable protections overseas. Whatever the moral merits of this result, Julian worries about the effect on judicial legitimacy of a technique that Justice Scalia-criticizing Chief Justice Roberts-has notoriously derided as “faux judicial restraint.”

Although the majority’s decision certainly has weaknesses, any departure from Eisenstrager is not, in my view, one of them. As Paul Halliday eloquently emphasized in his post about the lack of precise historical analogs, “To ask this question of the past is to seek what is not there: the present.” Julian is probably correct that explicit, rather than disguised, disavowal of precedent is preferable, although I am not convinced that the majority’s discussion of Eisenstrager belongs in the latter category, since I believe Eisenstrager is distinguishable. This is certainly one of the many threads to pursue in future discussions of the Boumediene decision and its significance for apprehensions and detentions carried out by the United States outside Guantanamo.

In the end, this is a case about borders: the borders of habeas jurisdiction, and the border between law and politics. The first has been clarified somewhat, but both remain contested.

ITLOS Elections

by Duncan Hollis

Symbolism Over Substance?

by Michael Newton

I regret that my post is delayed somewhat by travel. I am at present writing from Venice, en route to which I had occasion to do more thinking about the implications of Boumediene than I did for detailed dissection of its precise phraseology. The fortuity of my presence overseas allows me to report the prevailing media spin that Boumediene represents a reestablishment of American law and a repudiation of the U.S. military acting as “jailor, judge, and jury.”

Franklin D. Roosevelt captured the essence of the moral struggle to preserve the American way of life in World War II by telling the nation that “the mighty action we are fighting for cannot be based on a disregard of all things worth fighting for.” The struggle to refine the optimal balance between the president’s duty to “preserve, protect, and defend” the constitution and the executive obligation to protect American lives and property may very well be the most enduring question of our time. At its heart, Boumediene rests on the straightforward legal determination by the Court that the Suspension Clause applies to the detainees in U.S. custody at Guantanamo Bay, followed by the rather predictable conclusion that the circumstances motivating the Congressional deprivation of habeas rights to the detainees did not rise to those specified in the constitution itself. Viewed in the stark terms portrayed in the media, the case can be seen as a validation of essential conditions of human liberty against the exercise of raw governmental power. Given that a president who disagrees with the court’s conclusions has publicly stated that he will nevertheless comply with its opinion, Boumediene does represent all that is best about an America dedicated to law and the preservation of life and liberty.

At the same time, there is a vaguely disquieting dimension to the Boumediene decision. The heart of the majority analysis relies on the assumption that the present system of Combatant Status Review Tribunals combined with the oversight and remedial powers of the D.C. Circuit Court of Appeals is inadequate to protect the essential human liberty of the detainees. The factual record indicates otherwise given that far more detainees have been released from Guantanamo than are currently in custody, and the current procedures provide both for periodic individualized reviews as well as a new CSRT when evidence surfaces that could result in a reversal of a previously determined status. By sheer coincidence, the Secretary of Defense recently ordered a new CSRT for Haji Bismullah on the basis of new evidence that could lead to his release. Because the Secretary’s request rendered the prior CSRT a non-final decision, the Solicitor General subsequently requested that the Court remand Bismullah’s case from its pending decision in Gates v. Bismullah. Although Justice Souter postulates the necessity for the majority opinion on the truism that “some of these petitioners have spent six years behind bars,” the evidence is that the system is indeed working to release those who do not pose a continuing threat to American interests and citizens. Furthermore, the majority establishes constitutional habeas rights, even as it acknowledges that an Article III process will not foreclose further confinement for future petitioners on the sole basis of a hostile status.

I do not believe that the Court intended its Boumediene reasoning to be read as automatically requiring release of any of the present detainees who do represent a continuing threat to the American constitutional order. The decision nevertheless contains the seeds for profoundly troubling extrapolations. For example, if the requirement for a “competent tribunal” found in Article 5 of the Third Geneva Convention is distorted in the future to mean an established Article III court, then the hands of the military would be bound with devastatingly deleterious effects on military operations overseas. The negotiating record for the Geneva Conventions and the official Commentary are both clear that the phrase “competent tribunal” was specifically negotiated to be much more operationally flexible than the preexisting domestic court systems. Boumediene cannot be properly read as applying in the context of an international armed conflict wherein the clear mandates of the Geneva Conventions have been applied.

Finally, while Boumediene is portrayed as somewhat inspiring and idealistic, there is a troubling disconnect in its pragmatic implications. In practical terms the majority candidly admits that its decision “does not address the content of the law that governs petitioners’ detention.” I am struck by the immense disconnect between the moral certainty with which the court creates a substantive right that can be gleaned neither from the law of armed conflict nor from any clear precedent, but at the same time creates such enormous uncertainty and moral confusion. There are more than a few federal judges who are today beginning to ponder some of the following important questions as cases begin to be filed: What are the standards of review? Does the voice of military expertise get ANY deference? Are the previous findings of CSRT panels to be completely discounted as if they were mere martinets in the hands of an overweening chief executive? Can any evidence that would be inadmissible hearsay if a specific petitioner were charged criminally provide the basis for continuing detention? What are the limits of the right to petition the court for witnesses on the petitioners’ behalf? Do the normal CIPA provisions apply [which are quite similar to those used in the military commission proceedings] or will a future Court hold that Boumediene requires some more expansive access for detainees to personally assess and rebut extremely sensitive classified information?

In the end, after the inevitable delays caused by debate, deliberation, and development, I am hopeful that the imprimatur of Article III authority actually provides minimal substantive difference. In that event, federal habeas review will have served to validate the professionalism and patriotism of those who have sacrificed the past six years to protect America while respecting legal norms. Boumediene represents a striking reinforcement of our constitutional separation of powers; I pray that the quest to balance civil liberties does not in the end deprive our citizens of their lives or liberties.

What is De Facto Sovereignty?

by Roger Alford

I want to return to the issue of the Court’s discussion of de facto sovereignty, which has the potential to be one of the most important holdings of Boumediene. The reason it is so important is that the Court’s articulation of de facto sovereignty has the potential to be the new test for the application of constitutional guarantees to noncitizens abroad. This has ramifications far beyond the narrow issue of habeas corpus. So what exactly is de facto sovereignty?

I see several possible interpretations of de facto sovereignty based on my reading of Boumediene: (1) the territorial model; (2) the occupation zone model; (3) the military base model; (4) the effective control model; (5) the physical custody model; and (6) the exercise of power model.

The territorial model. First, de facto sovereignty could mean something quite narrow. The narrowest reading of de facto sovereignty would emphasize that Guantanamo is almost unique in that it effectively falls within the territory of the United States but for the fact that Cuba retains ultimate de jure sovereignty. Under this definition, Guantanamo Bay would constitute a data set of one.

The occupation zone model. A second definition would focus on all territories that the United States physically occupies and controls. This would encompass a much broader category of territory, including the American zone in Germany after the Second World War and arguably all of Iraq during the period when Iraq was governed by the Coalition Provisional Authority. It also would apply to the Green Zone today.

The military base model. A third definition would focus on the individual facilities that we occupy and control subject to lease agreements with other nations. Under this definition the Constitution would extend to any alien physically located in any United States military base anywhere in the world. It also would extend to aliens held in any United States prison, barracks, or detention facility anywhere in the world that is within the practical control of the United States.

The effective control model. A fourth definition is even broader and would emphasize effective control of a detention facility. The Court emphasized that “Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” So the Constitution would apply if the United States exercised effective control over a detention facility even though the detainees are held by coalition forces or military personnel from other nations pursuant to an agreement with the United States.

The physical custody model. A fifth possible definition of de facto sovereignty would emphasize physical custody over the person rather than the territory. This definition would essentially define de facto sovereignty as equivalent to control over the individual’s physical movement. If a person has been arrested and his movement is forcibly circumscribed by United States authorities, then the United States is exercising control over that person and the Constitution applies to their conduct.

The exercise of power model. The broadest possible definition of de facto sovereignty is that the Constitution applies to noncitizens abroad any time the United States exercises authority over those individuals. This definition parallels Justice Brennan’s dissent in Verdugo-Urquidez: If the Constitution authorizes our Government to enforce our laws abroad, then when the Government agents exercise this authority, the Constitution travels with them. Under this definition, the Constitution is an unavoidable correlative of the Government’s power to enforce the law.

I don’t think it is clear which of these possible definitions future courts will adopt. It really is anyone’s guess. The Court in Boumediene seemed to emphasize a functional, ad hoc approach that would prevent the political branches from exercising power and then manipulating the circumstances under which that power is exercised so as to circumvent constitutional guarantees:

“The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution. Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.”

What Now?

by Geoffrey Corn

I also would like to begin by expressing my thanks to the Opinio Juris team for giving me the opportunity to share some thoughts on the Boumediene decision. My post is a bit tardy due to the fact that I have been in Israel staying in some places with limited internet access. More on some perspective judicial review of military issues inspired from this place towards the end.

As I read through the Boumediene decision, I kept asking myself the same question: what happens now? How will the government respond to the ruling and the inevitable deluge of habeas petitions challenging enemy combatant designations? With full judicial review of these determinations now a certainty, it is natural to assume that the key concern for the government will be to ensure subsequent process is more “protective” of detainee rights. But as I read through the opinion, it struck me that the real battles of the future will not be about process, but about the substantive definition of the term “enemy combatant.”

When the CSRT’s were established, there was clearly an effort to model them after the Geneva Prisoner of War Convention (GPW) article 5 tribunal. Article 5 of the GPW requires that any doubt related to a detainees qualification for POW status must be resolved by a review tribunal. But the value of this model was limited by a simple reality: unlike an article 5 tribunal which applies the definition of prisoner of war (POW) found in article 4 of the GPW, the CSRT’s could not rely on a well established international definition of “enemy combatant.” Instead, the Bush administration created the definition to be applied by the CSRT’s. As the majority reminded us (as if we needed reminding), the scope of this definition was broad enough to include not only individuals captured on the battlefield, but also individuals apprehended in locations far removed from any combat activities.

Although the definition of enemy combatant was not the focus of this opinion, it seems to me that it is remains the critical issue lying just below the surface. Why do I believe this? Professor Kent already noted the sentence in Justice Kennedy’s opinion that hints at the possibility the use of more robust procedure might obviate the need for habeas access (Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65)). But I have my doubts that Justice Kennedy’s use of the term “process” is limited to procedure. This is because of the simple fact that the CSRT is in essence an article 5 tribunal. There is nothing magic about characterization of the review tribunal. Instead, the critical distinction between the CSRT’s and an article 5 tribunal is the standard applied to justify indefinite detention as a necessary incident of war. As a result, it seems to me that because the procedures for an article 5 tribunal are essentially analogous to those of the CSRT’s, the Court was not indicating that merely re-designating the CSRT’s to an article 5 tribunal would cure the defects. Nor that in the future prisoners of war would also be entitled to challenge their detention through the Great Writ. This is because of this fundamental distinction between an article 5 tribunal and the CSRT’s, a distinction that is more about substance than process.

Nor do I believe the distinction is merely definitional. Once an individual is designated a POW, a framework carefully developed to limit the arbitrary exercise of authority by the detaining power comes into force (see here). By removing these detainees from the protections of the GPW, it was the Bush administration that deprived them of the substantive and procedural checks to such arbitrary power, vesting the government with a degree of discretion that the Court was unwilling to permit. Thus, it is this full spectrum of protections for POWs – including a more limited definition of that term – that in my opinion would provide the “process” that Justice Kennedy suggested could obviate the need for judicial review.

So it seems that because the designation of enemy combatant has been used for individuals far removed from the “core” meaning of that term (captured on the battlefield after engaging in hostilities against U.S. or coalition forces), the definition of that term will now become central in the inevitable habeas litigation that will follow this decision. Tinkering with the CSRT procedures will do nothing to resolve the fundamental dilemma lying at the core of this process: the legitimacy of the expanded definition of enemy combatant resulting from treating the struggle against international terrorism as a “global war.” Relying on the current definition of enemy combatant used by the CSRT (an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners) will still require the reviewing court to decide how far “part of or supporting” extends.

So for me, the real “what now” is how the courts will react to the expansive definition of enemy combatant that has resulted in “generational” detention not only for individuals captured in a zone of active military operations, but also those captured in places far removed. I wonder if the government will move to codify that definition or perhaps adopt one more narrowly tailored to the traditional notion of a battlefield belligerent. I certainly believe that such a move is now far more likely than before this decision.

What seems certain is that until the scope of this definition is legally sanctioned, detainees will continue to argue that their attenuation from the military component of the war on terror makes their designation as enemy combatants illegitimate. And until that issue is addressed, the government will continue to struggle to defend depriving individuals of their liberty indefinitely based solely on the “necessities of war.” If there is one certain outcome – and in my opinion benefit of this opinion – it is that after a six year saga of legal opinions, policy decisions, and ongoing detentions the government will finally be forced to clearly articulate and defend the rationale for the expansive application of the term “enemy combatant” that is at the heart of the concept of a Global War on Terror.

A final thought inspired by my current locale. Last week I participated in a conference on the law of armed conflict at Hebrew University, and since then I have been staying with a close friend who recently retired as a Colonel from the legal department of the Israeli Defense Force (his last few years spent as the legal advisor to the commander of the West Bank command), and another close friend from the IDF legal department who studied with me at the Army JAG School. This has given me the opportunity to share perspectives on the role of the judiciary in wartime decisions. What I have found fascinating is routine intervention by Israeli courts in ongoing military operational decisions. But what I have found even more fascinating is how unremarkable this role seems to my friends and other Israeli legal experts at the conference. For them, a judicial opinion prohibiting certain interrogation techniques, or establishing the law applicable to targeted killings, or responding to a request to halt the destruction of a home in the West Bank is a normal part of the legal process. Perhaps more importantly, there seems to be a strong consensus that such a judicial role strengthens the legitimacy of military operations.

Don’t get me wrong, I have not become an advocate of routine judicial intervention in operational military decisions, and I have expressed to my friends here my doubts related to the competence of judges to rule on such matters. But it does strike me that perhaps judicial oversight of certain aspects of military affairs, especially those involving mature theaters of operation and the application of newly conceived concepts to justify government actions, might not be so outrageous. As several other bloggers have noted, this opinion will likely have a substantial positive impact on the international credibility of the U.S. But perhaps it will also make the job of the armed forces a bit easier by finally forcing greater clarity in the standards to be applied during military operations, which seems precisely the benefit that makes my Israeli friends feel so comfortable with their process.

Does Ignoring Precedent Matter?

by Julian Ku

Perhaps the least persuasive part of the largely unpersuasive Boumediene opinion is its attempt to distinguish the most relevant and binding precedent on the subject: the Supreme Court’s 1950 decision in Johnson v. Eisentrager.

In Boumediene, the Court effectively overruled Eisentrager’s holding that enemy aliens cannot have the benefit of habeas corpus when held outside the territory of the United States. (This is not surprising, I suppose. In Hamdan, the Court essentially overruled Eisentrager’s holding that the Geneva Conventions cannot serve as a basis for a remedy in a civilian proceeding.)

Justice Scalia’s dissent, which probably went overboard in some parts, was absolutely right in its evisceration of the Court’s analysis of Eisentrager (see pp. 10-13 of Scalia’s dissent). The Court did not say it was overruling Eisentrager, but it is hard to see how it could have reached its decision today without doing so. Go ahead. Read Johnson v. Eisentrager and try to convince yourself that the denial of the writ to enemy aliens captured and held overseas during wartime was simply based on practical and functional considerations rather than on territoriality and citizenship.

Does it matter if the Court departs substantially from past precedent? Not to the many commentators (on this blog and elsewhere) who have hailed the decision. But even if one is happy with the result, one has to be worried about a judicial methodology that veers rather dramatically from precedent without admitting that it is doing so. Not only does this further undermine the legitimacy of the Court, but it makes it hard for future decisionmakers to know what is or is not legal? The Bush Administration and Congress can rightly complain that the Court has moved, and continues to move, the goalposts here.

It was totally reasonable for lawyers prior to Hamdan to believe that military commissions were statutorily authorized, the Geneva Conventions were not self-executing, and prior to Boumediene that the writ of habeas corpus and U.S. constitutional rights do not extend outside the territory of the United States to enemy aliens. Indeed, it would have been irresponsible for an attorney advising the President NOT to point out that the legal authority existed.

What now? The unacknowledged departure from precedent represented by Hamdan and Boumediene leave us in uncharted territory. A future decisionmaker has got to assume, and attorneys will have to advise him or her, that the writ of habeas corpus almost certainly extends to wherever the U.S. holds de facto control and where practical considerations do not forego extending the writ (the Green Zone in Iraq and Bagram, Afghanistan come to mind). Further, such attorneys should also advise that enemy combatants there enjoy the protection of at least the Fifth Amendment Due Process rights identified in Hamdi and probably others as well. Nor can congressional action limit or constrain the exercise of these rights in any meaningful way. The entire process of detaining enemy combatants is going to be crafted via a series of federal district court and appellate court decisions attempting to apply the murky judicial methodology the Court provided today (and which is probably going to change tomorrow). If I were in OLC, I would certainly recommend that the President and Congress assume they are totally bound by the Constitution overseas, unless or until the Court tells me otherwise.

Maybe this is all for the good, if all that matters is the result. But how we get to a result is a big part of the Court’s legitimacy as a judicial (rather than a policy) decisionmaker. And the Court did itself no favors today on that front.

What Comes Next?

by Julian Davis Mortenson

Thanks very much to Opinio Juris for including me in this conversation. I look forward to trading ideas with the terrific group of commentators that Roger and his colleagues have lined up. I should admit from the outset that my instincts here are not exactly neutral: while I now teach national security and international law at Fordham, I was a member of WilmerHale’s Boumediene team and one of the principal drafters of our briefs in the case. I hope the result of that background here will be a deep grounding in specifics rather than any unfair bias.

I want to start off with two points, one related to the majority’s peculiar choices about narrative structure and one directed at the bottom-line question we are all struggling to understand: what comes next?

(1) The CSRT Process: It is remarkable that such a favorable majority decision relies on such a colorless description of the CSRT process. This was an absolutely central focus of the litigation, but the majority operates at so high a level of abstraction that some of Roberts’ criticisms take on a rhetorical force that is quite undeserved. The majority notes that detainees could submit “reasonably available” evidence, but doesn’t touch on extensive evidence that this standard appears rarely (if ever) to have extended to anything or anyone besides other detainees at Guantanamo Bay. It spends no time describing the remorseless vise that pinned detainees between a one-sided body of unconfrontable secret evidence on one hand and a legal presumption that all this evidence is accurate on the other. Unless I missed it, the opinion doesn’t even mention the do-overs that were ordered in cases where a detainee was exonerated by his first CSRT proceeding.

Perhaps most conspicuous is the absence of any discussion about the whistleblower revelations from CSRT insiders—people hand-picked by the government, in other words, to participate in this process. One former CSRT administrator described a system in which “no exculpatory information” was ever presented (except accidentally when the government’s allegations were internally contradictory), where forceful pressure from senior command was brought to bear on CSRT panelists, and where overwhelmed legal officers raced through dozens of hearings in a tightly compressed time period. Another described the information gathered from recalcitrant (and sometimes nonresponsive) intelligence agencies as “lack[ing] even the most fundamental earmarks of objectively credible evidence.” And, while this occurred in reaction to a separate legal process, it can’t have escaped the Court’s attention that the former head prosecutor of the Military Commissions resigned his post in public protest against corrupting political influence on that process.

What is particularly surprising about the majority’s colorless approach is that many observers think it was precisely these revelations which led the Court to reverse its initial denial of certiorari in such stunning fashion. Yet they don’t appear even as a defensive riposte by the majority (the Court could have easily achieved much this purpose by acknowledging—without necessarily adopting—these criticisms of how the formal CSRT procedures were actually applied).

So what happened? I suspect three things may be going on. First, the Court is appropriately uneasy about undertaking what would amount to fact-finding on certiorari review. Resting its decision on anything other than the bare text of the CSRT procedures would have provoked a firestorm from the dissents. Second, the Court may have wanted to avoid miring future challenges in factual disputes about how a set of procedures are actually applied—even though such assessments are invited by the Court’s earlier Suspension Clause decisions in Hayman and Swain. Third, the majority may have worried that any extended riff on the full factual context might let opponents of Boumediene cabin the case as primarily focused on faithless application of a potentially valid set of rules.

It’s certainly frustrating from an advocate’s perspective to see Roberts’ credulous praise of the CSRTs go unchallenged in this way. But does all this render irrelevant the practical facts about how CSRT review actually operated? Well, it doesn’t take much of a legal realist to realize that this can’t be true. Kennedy may not have flagged any of these issues in his decision, but they had to have loomed large in driving the results of his flexible analytical structure. It’s the classic problem of conveying the rich fullness of your client’s situation, knowing that “atmospherics” and “optics” can often be outcome determinative. A former colleague liked to remind me that “we’re in the presentation business!” And that’s no less true when key pieces of the presentation don’t make it into the formal judicial outcome.

(2) Preventive Detention: Some commentators have been much too pessimistic about the prospects for statutory preventive detention in the wake of this decision. While there may well be other constitutional problems with such a regime, nothing in Boumediene prevents Congress from devising a comprehensive system of preventive detention—much as Congress devised a comprehensive system of criminal justice in the Military Commissions Act. Under the majority’s opinion, Congress can create procedures governing review; Congress can funnel the cases to a new court to conduct that review; Congress can define burdens of proof; and Congress can define the categories of people who are detainable. Indeed, I’ll argue in a later post that the majority essentially invites Congress to do so—albeit in a more thoughtful way than the 15 lines of statutory text which constitute the sum total of congressional participation on this question to date.

Will habeas corpus still be available for suspected terrorists to challenge the results of those preventive detention determinations? After Boumediene, the answer to that question is almost certainly “yes,” at least in areas where the writ runs. But—and here’s the key point—the question isn’t whether habeas is available at all, it’s what kind of review a habeas court will employ. The majority makes it clear that the scope of habeas review depends both on the detainee’s status and on the procedures that detainee has already received (or can expect to receive in relatively short order). See, e.g., Slip. Op. at 51, 52-53. This is at the heart of the mess that Roberts and Kennedy stumble into as they talk past one another in their discussion of direct vs. collateral review. Where the pre-habeas process is battlefield interrogation by U.S. soldiers, as the Solicitor General came close to suggesting in Hamdi, habeas courts will be searching and skeptical. Where the pre-habeas process offers a legitimate chance for innocent detainees to prove that innocence to an independent decisionmaker, the procedures and standards applied in habeas are likely to be far more deferential

Think of criminal habeas. The post-AEDPA habeas regime mandates heavy deference to state courts, not just on factual questions, but even on questions of pure law. It’s hard to imagine, simply as a predictive matter, that the Court wouldn’t extend even greater deference to a preventive detention regime in the national security context, so long as the basic pre-habeas process offers detainees a meaningful chance to contest their detention. (All of this, I should be clear, brackets the underlying substantive question of whether the Constitution would permit preventive detention as such.)

Is this small consolation for advocates of preventive detention? Well, that depends on your views of the constitutional baseline, because Boumediene certainly leaves no doubt that the grossly inadequate process of CSRT-DTA review can’t suffice to justify the continued detention of people who have been ghosted from the peaceful streets of Sarajevo into indefinite supermax detention in the Caribbean. But so many of the questions about how preventive detention would work involve balancing and calibration that the Court is likely to respect serious congressional engagement with these hard issues—so long as the final product incorporates genuine respect for the broad procedural requirements described by yesterday’s opinion. This all connects to another crucial aspect of Boumediene: its implicit position on how deference to the political branches should operate. I’ll come back to that in a later post.

Boumediene: History vs. Analogy

by Paul D. Halliday

Chief Justice Roberts is right: Guantanamo is “unique.” [p2] But can that which is unique be analogized? If not, why work by analogy? Yet this is what the justices have generally sought in the past. They ask, what case can I find that looks like today’s? Simple answer? None. To ask this question of the past is to seek what is not there: the present. Approaching the past this way means missing the chance to develop the kind of historical analysis that might help us think our way into the problems we confront today.

Even with over 11,000 people using habeas corpus in the 300 years before 1789, no case can provide the strict analogy the justices seek. That said, many come close: “prisoners at war” in the 1690s; Frenchmen and Indians in Bengal; writs used across centuries in a host of “jurisdictionally quirky” [Roberts, p28] settings from Berwick to both Bostons, and in Barbados and beyond. So what? Looking for a case is to overlook how serious historical explanation might better inform contemporary legal thinking.

What we find in thousands of cases across thousands of miles are patterns revealing principles about habeas corpus. Recovering such principles through historical analysis provides us with ways of thinking not only about the past, but about our present, ways that may surprise and help us—regardless of our partisan or jurisprudential commitments—because they bring us into our questions from unanticipated points of entry.

Consider three principles Justice Kennedy identifies out of the past:
1) habeas corpus rests on a theory of power, not a theory of liberty [p10],
2) it was “an adaptable remedy” [p50],
3) by which “liberty and security can be reconciled.” [p70]

That habeas rests on monarchical power, not proto-liberal ideas, may sound disturbing. But ideas about the prerogative, taken up by royal justices around 1600, built the legal refuge to which later ideas about liberty could resort for safety. A prerogative writ made a legal unity of otherwise quirky places. Place was not the point in habeas litigation. People were: the king, his officers, and their accountability to the king, through his justices, for their detention of his subjects, both “natural” and “local.”

Given early modern jurisdiction’s impressive quirkiness, adaptability was the writ’s essence. Church courts, justices of the peace, conciliar courts, and more: all answered the writ, because the justices accepted no impediment to their adaptation of the writ to new circumstances. Across the 17th century, the judges humbled one quirky place after another: Berwick, the Marches of Wales, Durham, the Channel Isles. Judges in new courts joined those in King’s Bench, issuing the writ in the Caribbean (to which King’s Bench also sent writs in the 1670s), in India, Quebec, and beyond. Adaptability explains the astonishing independence of the court in the 1640s, when the justices used habeas corpus to release those imprisoned by military officers and jurisdictional novelties thrown forth in the maelstrom of civil war.

Because no jurisdictional quirkiness imparted immunity from judicial supervision (see below, for the exception), the writ became the means by which liberty and security might be reconciled. Chief Justice Holt showed powerfully this capacity to reconcile liberty and security between 1689 and 1710. He and his court released hundreds of accused traitors and spies—French, Irish, Scots, and English—during a period of war and threatened rebellion, while always taking care to identify those who might, by law, properly endure all the horrors trial and conviction for treason might bring. Justice Scalia may be right to decry the “judicial supremacy” [p17] judges like Holt seem to threaten. Whether that is a danger, and how it might be addressed, are not questions for historians. But the history suggests nothing if not the capacity of judges, like Holt, to consider the legality of any detention, of any subject, “local” as well as “natural.”

The one exception? Parliament, its imprisonment orders, and the imprisonments made possible by its statutes. This morning’s papers all remark on the “rebuke” the president has received. Perhaps. More notable, viewed from England’s history, is the rebuke given to statutes and to the Congress that makes them. No force has imposed more limits on the ambit of habeas corpus from 1679 forward than statute. The Habeas Corpus Act of that year—always lauded—imposed unanticipated limitations on the writ in later years. Successive statutes suspended bail (though never habeas corpus) in times of national crisis, even when the claim of crisis seemed dubious at best. Statutes made by colonial assemblies made possible slave regimes on the western side of the Atlantic that no triumphant proposition from Somerset’s case could void. Statute impressed thousands of seamen into the stinking bowels of His Majesty’s Ships against their will. If, as Justice Scalia suggests, “history teaches” [p23], what it teaches is that perhaps we must look our elected representatives—and thus ourselves—in the face and ask how we came to this pass.

What’s Left of Judicial Deference?

by Deborah Pearlstein

Though the opinion in Munaf and Omar should give us all some pause, I’m still thinking that yesterday’s Boumediene opinion comes as close as I’ve seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security.

The majority opinion doesn’t just embrace a functional approach to resolving questions of the scope of the Constitution’s applicability abroad. (When constitutional lawyers talk about functional approaches, they generally mean something that takes into account the practical effects of a particular outcome in resolving questions of constitutional power). In announcing the practical considerations that matter, Justice Kennedy’s opinion gives executive claims of security necessity (that is, the executive’s view of what’s practical) at Guantanamo the back of his judicial hand.

What does matter in determining whether the Constitution (here, the Suspension Clause) constrains U.S. actions outside the territorial United States? Kennedy says three things: 1) citizenship and status of detainee; 2) the nature of the site of the detainee’s apprehension and detention; and (3) practical obstacles inherent in resolving entitlement to writ. What about the practical obstacle the administration’s been touting all along—that full habeas hearings with consideration of all evidence and so forth would compromise U.S. national security? According to Kennedy: “The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Ouch.

Marty’s right that the decision leaves open the critical next question of what about the habeas petitioners today held at the United States base in Bagram, Afghanistan. But that’s a pretty strong shot across the bow of the executive branch all the same.

[Cross-posted at Convictions]

The Importance of Boumediene

by Eric Freedman

Having consistently benefitted from the high level of dialogue on this site, and conscious that it inhabits a scholarly field in which I do not specialize, I particularly appreciate the invitation to post a response to the Boumediene decision here.

Of course, the ruling raises numerous legal, historical, and practical points that will be the subject of hundreds of thousands of words of commentary in the days and years to come, but I hope that those do not have the effect of obscuring in a welter of detail the truly profound importance of what happened in Washington yesterday morning.

Let me start by pasting in, unedited, a comment posted about the case to the website of the Times of London:

USA has always been a great country, if not the best, this desicion prove it, once again the American democracy, constitution and division of power prove to be the most eficient way of soceity in the world. this is a grreat day for America, and the begining of the healing of this country.

Ernesto, Caracas, Venezuela


Ernesto here makes tersely the two points that I will make only a bit less tersely.

1.

A. In terms of American constitutional law, this decision ranks in the top five of all time. It will in the future appear in constitutional law casebooks right after Marbury v. Madison and right before the Steel Seizure case. Why? Because it implements the structural thinking that permeates the Federalist.

What the Convention’s Rube Goldberg creation was supposed to achieve, somehow, was to constrain government power whether in the hands of an aroused public (forestalling the excesses of democracy) or of a single individual (whether King or President because, whether that person’s motivations were good or ill or views wise or foolish, the public had the right to set policy) while at the same time getting the needed work of government done.

So we got both:
– checks and balances, dividing power between the branches and then setting them against each other so as to prevent potentially tyrannical concentrations of power, and
– separation of powers, attempting to see to it that governmental tasks (e.g. raising taxes, impeaching the President) would be carried out by the organ(s) of government that could perform them best in light of what we were trying to achieve in the first place: representative non-tyrannical government.

B. In that context, whether an individual should or should not be imprisoned is not in any sense a political question. It is a judicial question. If the executive branch believes that an individual should be incarcerated, it has the burden of persuading neutral adjudicator (a judge, chosen jointly by the an executive-legislative process) of the legal and factual correctness of its view.

Leaving habeas corpus entirely aside, this thinking explains why repudiating the English model impeachment of public officials by the legislature extends no farther than removal from office and is not a criminal conviction, and why private citizens may not be subject to bills of attainders (legislative acts, signed by the executive, convicting individuals of crimes).

C. These are the basic structural premises of the ruling yesterday, and why my paragraph 1(A) above reads as it does.

2.

The ruling yesterday is the best possible thing that could have happened for the position of the United States in the world, and specifically for its efforts to defeat terrorism.

That is a struggle that simply will not be won exclusively, or even primarily, by military means nor yet by economic ones. Leaving idealistic concerns entirely aside, this country simply lacks sufficient resources in either area.

To defeat ideologies opposed to ours we will have to win the hearts and minds of people around the world. That requires demonstrating in deed adherence to our professed ideals, sometimes paying a short-term practical price (just as we do when a guilty person is acquitted in the criminal justice system) in order to preserve what is in fact America’s greatest strength: the moral force that comes from being an example to the world, a country that others justifiably want to emulate, one confident enough in its own values that its President wears his amenability to the rule of law as what I have called “a republican crown” rather than casting it aside in times of stress.

If a young person living in an authoritarian nation who is asked to compare the behavior of her government in addressing perceived security threats with that of ours answers*accurately and tragically*that there is not much difference, the future of the American empire is dim at best.

Ernesto’s comment on Boumediene with which I began this post encapsulates, I hope, its significance as a burst of sunshine onto this landscape.

The United States and the world have had a very good day.

Boumediene and Choice of Law

by Beth Van Schaack

As others have noted, the Supreme Court left open a number of pressing questions in its Boumediene opinion. Most intriguing from my perspective is the choice of law issue addressed to the question of which body (or bodies) of law will apply to determine the lawfulness of the detainees’ detentions in the forthcoming habeas proceedings. To this issue, the Court merely noted that: “It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined” (p. 69).



The question of which law governs is not an obvious one. In all cases, of course, U.S. law will govern the question of when and how an individual may be detained by U.S. government agents. In certain cases, however, international law speaks to the same question.



International humanitarian law (IHL) in particular is relevant to those individuals detained while participating in hostilities in Afghanistan prior to the establishment of a new government there (i.e., between October 7, 2001, and June 19, 2002). During this time, the conflict in Afghanistan was an “international armed conflict” within the meaning of Article 2 of the 1940 Geneva Conventions. (According to that provision, the Conventions “apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”). By contrast, individuals detained after June 19, 2002—when the conflict in Afghanistan was no longer an “international armed conflict” as defined by IHL—are only subject to the IHL governing non-international armed conflicts. (From that date onward, the conflict was no longer between High Contracting Parties; although multiple High Contracting Parties remain involved in the conflict, they are aligned on the same side). Individuals detained outside of the theater of war, like the Boumediene petitioners who were detained in Bosnia-Herzegovina, likely fall outside of IHL altogether.



All of these individuals are presumptively protected by human rights law, which applies in times of peace and war. Article 9(1) of the International Covenant on Civil and Political Rights states: “No one shall be subjected to arbitrary arrest or detention.” The precise relationship between IHL and human rights law remains inchoate, although it is clear that in situations of armed conflict, both bodies of law will apply in a complementary fashion. For example, IHL as the lex specialis can add content to the determination when a detention is “arbitrary” within the meaning of human rights law.



This leads to the question of what substantive standards govern the legality of the detention of individuals under these various bodies of international law, assuming they apply. Under IHL, the specific rules applying to individual detainees depend upon conflict classification, the relationship of such individuals to the conflict, and the circumstances of their capture. In particular, in international armed conflicts, there are regimes for interning prisoners of war as a matter of course and for interning aliens in the territory of the Detaining Power or in occupied territory who present security risks.



By contrast, the rules governing non-international armed conflicts do not create a specific regime for the detention of individuals. Thus, the procedures applicable to their detention are governed by domestic criminal law as tempered by relevant provisions of international human rights law. The International Covenant on Civil and Political Rights, while setting forth a general prohibition against arbitrary detention and a right to habeas corpus, does not provide much in the way of substantive standards to determine when a detention is arbitrary. Clearly detentions not in accordance with procedures established by law would qualify (Art. 9(1)).



This choice of law question will also force the lower courts to confront §5 of the Military Commission Act, assuming it applies to pending cases. This provision states:



No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.



Strong arguments exist that this clause—if it indeed applies to situations in which detainees are contesting the validity of their detentions—violates fundamental separation of powers principles by constraining the sources of law and rules of decision courts can invoke in deciding matters before them, as convincingly advanced by our colleague Steve Vladeck in his amicus brief in the cases.


Three Reflections on Boumediene

by G. Edward White

I have three levels of comments:

1. History. Although Kennedy’s opinion spent a lot of time with the history of habeas, it drew only two conclusions with much bite.The first is that the Suspension Clause was passed before the Bill of Rights, so one could argue that the right to challenge one’s detention before a court or a judge was treated as the only right sufficiently important to put in the original Constitution. That view makes protection for the “great writ” more important, in the view of the framers, than “due process of law” or protection for “speech,” or self-incrimination, or trial by jury. Of course one could also argue that the decision not to include a Bill of Rights was not a judgment about the importance of the rights, and if so, the content of the rights subsequently enumerated gives testimony to their importance. Still, it gives one pause to recall that the only procedural “right” detailed in the original document is the “privilege of the writ of habeas corpus.” The second historical conclusion is that the writ ran with the king’s dominions. The fact that habeas was available to the “king’s subjects” in India and America, which included members of non-English populations and resident aliens, makes it easier to suggest that extending habeas protection to aliens in Guantanamo isn’t completely at odds with the “original meaning” of the Suspension Clause. At some point there seems to be something of a historical dispute between Kennedy and Scalia on the scope of habeas jurisdiction, but I read Scalia only to be saying that no historical authority has suggested that if an alien is arrested and detained by a “King’s officer” (say, a person in the service of the US armed forces) in a foreign theater of operations, habeas jurisdiction would be concurred. Scalia doesn’t agree that Guantanamo is US territory for the purpose of habeas jurisdiction, but he lost on that issue. So being detained in Guantanamo is different, after Boumediene, from being detained in an Iraqi jail, by Iraqi authorities, at the request of the US.

2. Separation of Powers. I find myself unsympathetic to Roberts’s arguments about judicial triumphalism and the exhaustion of other remedies. The original purpose of the habeas writ was to test the legality of executive detentions. The concern, at a time when religious and political conflict were closely associated, was with executive officials, ostensibly acting under the name of the king, holding people in custody because of the unpopularity of their religious views. The theory of the habeas writ was that the king would be embarrassed by that conduct, and would thus exert his grace and mercy (the writ is a royal prerogative writ) on behalf of his subjects to ensure that his courts (the original judges hearing habeas cases were King’s Bench judges) tested the actions of his officials. So if the point of habeas to ensure the sufficiency of evidence on which a person is incarcerated, the idea that Congress and the Executive should presumptively be deferred to when they seek to limit the access of incarcerated persons to the courts seems quite out of place. Judges are the enforcers of habeas, and they, not the other branches, should determine its scope. As for exhaustion, if it were the case that the Combatant Status Review Tribunals were just being formed, and at least in theory detainees, represented by military counsel, would have opportunity to challenge the evidence against them and otherwise test the sufficiency of their detentions, one might be inclined to encourage their use. But that is not how the CSRTs work, at least for prospective ‘enemy combatants’ since 9/11. Someone is arrested in Afghanistan or elsewhere, either in actual military operations or in some counter-terrorist context; the person is brought up before a CSRT and characterized as an ‘enemy combatant’ by a member of the military; some evidence is produced; the tribunal designates the person an ‘enemy combatant’; the person is detained, and, before Boumediene, at the pleasure of the military. In that context I am not sure what “adminstrative remedies” there are to exhaust. The very fact that both the Congressional statutes withdrawing jurisdiction from the federal courts were comparatively uncontroversial when they were passed, and the executive was given a great deal of deference on “war on terror” issues for at least five years after 9/11, suggests that Congress and the executive are not inclined to be overly scrupulous about the rights of persons they think are threatening national security in a direct way. One wonders whether Roberts would be equally inclined to be deferential to the executive and Congress if, as was the case in the early 1950s, both were inclined to support the forcible segregation of African-Americans and whites.

3. Practical Application. I suspect that Boumediene may be one of those cases whose aspirational reach and impact turns out to be far greater than its practical effects. It is possible, as some commentators have suggested, that the logic of Boumediene is that anywhere in the world where the United States has de facto sovereignty, a detainee–citizen or alien–may have habeas access to a civil court to challenge the sufficiency of the detention. Under this reading Guantanamo would not be a “quirky” jurisdiction, as Roberts suggests, but a precedent for the proposition that when officials of the United States government exercise custody over a person in a place where the United States government has the equivalent of sovereign authority (a military base, a military prison in an “occupied” territory), that person should be able to challenge custody through a habeas petition. Put that way, Boumediene embodies the principle that when officials of the United States are incarcerating someone in territory controlled by the United States, civil courts of the United States are available for habeas relief. That would be consistent with our aspirations for the “rule of law.” But none of this is to say that many detainees would be advantaged by the ability to swear out habeas writs. At least not many detainees of the sort that have ended up in Guantanamo or the CIA’s facilities. Recall that the standard of review, on a habeas petition, is whether the evidence suggests that the prisoner was appropriately detained as falling into one or another category of persons eligible for detention. When a person is arrested in a military theater of operations, or in some sort of counter-terrorist operation, that evidence is difficult to counter. Virtually every prisoner in the American penal system is eligible of habeas relief. One doesn’t seem a constant stream of such persons being released because they successfully challenged the basis of their detention. The very fact that after Boumediene there is some risk that the federal courts might be clogged with habeas petitions by ‘enemy combatant’ detainees suggests that a comparatively swift way of disposing of most of the challenges will be developed. Indeed, one might be inclined to think that the only beneficiaries of Boumediene are likely to be persons who can show, with some clarity, that their detentions were dubious in the first place.

Boumediene and the Use of History; Boumediene & Munaf

by Andrew Kent

Thanks to Opinio Juris for inviting me back. These things are always fun. I’m not going to try to systematically address Boumediene, but will instead offer a few thoughts about Boumediene‘s use of history and the relationship between Boumediene and Munaf.

1. I agree with much of the Chief’s and Scalia’s criticisms of the Boumediene majority opinion’s aggressive assertions of judicial supremacy over detention decisions in the war on terror. But it cannot be accidental that the Court chose to release Munaf v. Geren on the same day. And if Boumediene is a green light for lower federal courts to exercise substantial control over the military’s legal proceedings regarding captured enemies, Munaf is a red—or at least yellow—light. There the Court goes out of its way to emphasize that the relief ordered by the lower court against the U.S. military was wholly inappropriate and that courts should careful to avoid “unwarranted judicial intrusion into the Executive’s ability to conduct military operations abroad” (slip op. 22). I hope Munaf’s cautions will be noted by lower court judges.

2. Although not implicated directly in either case, I bet the Geneva Conventions played an important behind-the-scenes role in today’s decisions. The Executive has of course long taken the position that alleged members or associates of al Qaeda or the Taliban captured in Afghanistan or elsewhere are not covered by the Geneva Conventions, but that all persons detained in Iraq are. Though in 2004 Hamdan held that Common Article 3 protects al Qaeda etc. personnel, that provision is merely a floor to outlaw the worst kind of misconduct by U.S. personnel. So generally speaking, Iraq conflict detainees have pretty comprehensive legal protections under Geneva (and Iraqi law, where applicable), whereas Guantanamo detainees have been perceived to be in a “legal black hole,” to use the popular metaphor.

My sense is that at least three justices (Kennedy, Souter and Ginsburg) simply think it is unacceptable for persons in U.S. detention to be held outside the protections of either the Constitution or a robust international legal regime like Geneva. Recall that Hamdi’s plurality pointed to Army regs implementing Geneva procedures as an example of acceptable due process. And Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65). This seems likely to be a reference to Geneva. Munaf’s unanimous deference to the Executive could well be motivated in part by the comfort the Court draws from the presence of Geneva in Iraq.

Back in the black hole, the government was essentially informed today that procedures and standards devised by the Executive or Congress for Guantanamo will never pass muster with this Court unless Article III courts are involved and able to enforce the Constitution. Rasul, Hamdi and Hamdan invited the President and Congress to create the kind of “non-constitutional” and “non-habeas” framework that Boumediene finds clearly unconstitutional. This is bad news for the advocates (e.g., Jack Goldsmith, Ben Wittes, Neal Katyal) of creative statutory detention and review procedures more appropriate for the novel circumstances of the war on terror.

In light of the significant losses the Executive has suffered in the Court in Guantanamo cases (Hamdi, Hamdan and now Boumediene), as well as the awful prisoner abuse and the diplomatic and public relations disasters, and one wonders whether even the Executive might now think we would have been better off maintaining from the outset that Geneva did not apply to al Qaeda etc. personnel, but that it would be applied anyway as a matter of humanity and good policy.

3. Judges and lawyers are often cautioned that they misunderstand and misuse history when they try to force it to decisively answer current legal problems. According to historian Jack Rakove: “Professional historians should have no problem in admitting ambiguity or uncertainty in our findings, but political and legal disputes leave little room for scholarly hemming and hawing.” Here’s historian Michael Bellesiles: Unlike advocates arguing for a client or judges justifying a decision, “[h]istorians doubt any case for which all the evidence falls consistently on one side and work on the assumption that the past is pitted with ambiguities and paradoxes.” The criticisms of lawyers and judges often seem apt. (I know that I—lacking a graduate degree in history—live in fear that I am getting my history wrong in some way. And I probably am.)

The Boumediene majority opinion appears to handle the complexities of constitutional history and its application to current disputes in a way that should please most historians. The historical question is whether, as of 1789 when the U.S. Constitution went into effect, aliens could have used the common law writ of habeas corpus to challenge in civilian courts on the mainland their detention as combatants by the military in a location under the de facto control but not de jure sovereignty of our country. The Boumediene majority considers the historical evidence but carefully and modestly declines to draw any firm conclusions because the evidence is ambiguous and incomplete and our eighteenth century predecessors did not leave record of having confronted and resolved the precise issues we face today. I have previously concluded much the same thing about the historical evidence, in a 2007 law review article and post for the Opinio Juris symposium about the D.C. Circuit decision in Boumediene.

Before today, the Court had a very different view. The five justice majority in Rasul v. Bush (2004) reviewed English habeas history and concluded that: “Application of the habeas statute to persons detained at the [Guantanamo Bay military] base is consistent with the historical reach of the writ of habeas corpus. . . . In the end, the answer to the question presented is clear.”

But as a detailed and erudite recent article on this topic by Professors Paul Halliday and G. Edward White (cited by the Boumediene majority) notes, “[t]he historical underpinnings of Stevens’ analysis [in Rasul] were slight” (p. 116 of the SSRN version). And lo and behold, the Court has recognized and corrected its error. In Boumediene, all nine justices reject the faulty historical analysis in Rasul. The Boumediene majority opinion correctly notes that the history of the writ provides “no certain conclusions” (slip op. 16). The Court finds “little” historical “support” for the claim that common law courts sitting in England prior to 1789 entertained “petitions brought by alien prisoners detained abroad” (slip op. 18-19). In fact, the Court notes, there is a “lack of historical evidence on point” (slip op. 22). All five justices in the majority signed on the opinion—and these statements—in full. Souter notes in his somewhat odd concurrence that he “join[s] the Court’s opinion in its entirety.” The four justices in dissent reject Rasul’s analysis and conclusions and instead find that the available evidence points the other way. I think they go too far by finding a clear answer, but their historical argument is, in my view, stronger than the Rasul majority’s.

By contrast with the Court’s approach today, the Brief of Legal Historians as Amici Curiae submitted in Boumediene argued that the “Court’s conclusion in Rasul is fully supported by the historical record.” Given his vote in Boumediene, not even Justice Stevens, the author of the Rasul majority opinion, appears to believe that anymore. The amici legal historians also wrote that “prisoners of war and alleged enemy aliens could challenge the legality of their detention by way of habeas corpus. Even where in these cases courts ultimately declined to discharge the petitioner, they reviewed the basis of the prisoners’ detention on the merits.” The Boumediene majority correctly notes that whether the key cases’ holdings “were jurisdictional or based upon the courts’ ruling that the petitioners were detained unlawfully as prisoners of war is unclear” (slip op. 17).

Rather than attempt to answer a momentous question of U.S. constitutional law based on an ambiguous and incomplete historical record, the Court today quite properly turns to other sources of constitutional meaning, namely text, structure, the Court’s precedent and functional, consequential and prudential considerations. Well done.

Methodologically, that is. On the substance of many issues, the Court is shaky. It badly misreads key precedents (Johnson v. Eisentrager, Balzac v. Porto Rico). It somehow convinces itself that “separation of powers” principles written by the Founders into the Constitution positively require that the federal judiciary have the final say about the legality of all executive detentions, even those occurring during wartime outside of the United States and involving noncitizens. It utterly fails to answer the Chief’s fairly devastating dissent. I am still fond of my textual-structural approach to the territorial scope of the Suspension Clause (in the article and post linked to above), but will not reprise it a third time here.

Notwithstanding these and other disagreements, I applaud the Court’s new-found methodological caution regarding the use of history.

A Second Take on Boumediene: Habeas Corpus and Military Commissions

by Steve Vladeck

It didn’t take long for the media and the commentators to quickly seize on the real question after Boumediene: now what? Let me begin by suggesting there are at least four categories (and probably more) of cases in which we must separately assess Boumediene’s implications:

  1. Non-citizens detained at Guantánamo challenging their detention.
  2. Non-citizens detained at Guantánamo challenging their pending trial by military commission.
  3. Non-citizens detained elsewhere outside the United States.
  4. Non-citizens detained in the United States (i.e., al Marri)

Although there is a whole lot to be said about each of these categories, I want to begin with (2), because in a way, that’s the simplest.

Before September 11, it was well established that habeas corpus was an appropriate means through which to mount a collateral attack on the exercise of military jurisdiction. At various points, especially during the 1950s and 1960s, the Supreme Court struggled over whether other challenges to military trials could be litigated via habeas, but jurisdictional challenges were just about always allowed.

Hamdan, of course, reaffirms that idea, especially in one of the more overlooked parts of Justice Stevens’s opinion for the Court–Part III, where he rejected the idea that the courts should abstain from deciding Hamdan’s habeas petition until the military commission proceedings had been complete. Simple enough to express, the idea is that a jurisdictional defect implicates the defendant’s right not to be tried in the first place, and not just the rights that would attach to such a trial. (Double jeopardy case law is somewhat analogous).

Anyway, I suspect the upside of all of this is that habeas petitions mounting collateral attacks on the jurisdiction of the military commissions under the Military Commissions Act of 2006 (“MCA”) can now go forward, and Hamdan itself probably will prevent the habeas courts from staying their hand. The question then becomes whether the military commissions will wait for the habeas proceedings to run their course, or whether the habeas courts won’t even give them that chance, and will order them to hold off…

But whatever the procedural posture, I wonder if the end result is to actually accelerate the resolution of fundamental questions concerning the constitutionality of the substantive provisions of the MCA? For example, if someone like Omar Khadr challenges his military commission on the ground that, inter alia, he’s entitled to combatant immunity, it strikes me that such a claim could get resolved much more quickly now than if he had to raise it as a defense at trial, raise it in a post-conviction appeal to the “Court of Military Commission Review,” and then raise it in a subsequent appeal to the D.C. Circuit.

Ultimately, then, I think today’s decision ensures that the one set of questions that can now be answered perhaps the most expeditiously are the substantive questions concerning the MCA. And hidden within some of those questions are perhaps the most “meta” questions at stake in these cases — the substantive detention criteria, the scope of the conflict, and, oh by the way, the applicability and enforceability of international humanitarian and human rights law…. so things may not take quite as long to drag out as we might think, it just might be the military commission cases, and not the challenges to detention without trial, that provide the vehicle.

Primer on Boumediene

by Roger Alford

Beth Van Schaack has a really nice primer on Boumediene available here. She will join us at Opinio Juris for more detailed discussion and analysis of the opinion shortly.

Good Day in Gitmo, Bad Day in Iraq

by Deborah Pearlstein

While there’s much, much more to be said on the Supreme Court’s blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today—and the news there is hardly pro-detainee.

In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S. citizen detainees), Munaf and Omar would lose on the merits of their habeas claims—and there’s therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.

The detainees’ key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The court concludes that this claim is “of concern,” but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination.

Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the “extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway.” But given the briefing the court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it’s a little hard to imagine just what kind of exceptional circumstances they have in mind. Among other things, the same State Department had said in its most recent country report that Iraqi jails have “significant human rights problems,” including “torture and other cruel, inhuman, or degrading punishment” and “[a]busive interrogation practices” including “rape, torture and abuse, sometimes leading to death.”

I’m not sure which is more remarkable about the decision—the fact that it was unanimous or the fact that the court decided to reach the merits of the habeas claims that the men were being held in violation of their rights under U.S. law. I’ll say it was the decision to reach out and decide the merits—of a piece, one might note, with Justice Kennedy’s paean to the role of the federal courts in such matters in Boumediene itself: “Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury.” Read: We’ve been holding back. We’re no longer so inclined.

[Cross-posted at Convictions]

What Difference Does Citizenship Make? Even Less, After Boumediene

by Peter Spiro

Roger points to the importance of territory in marking the boundaries of citizenship. The other key element in constitutional cartography has been citizenship status, at least since Reid v. Covert. When it comes to enjoying the protection of the Constitution abroad, as a general matter citizens get it, noncitizens don’t.

Justice Kennedy’s opinion in Boumediene appears to slice at that in both directions. First, he plays up the fact that Black’s absolutist opinion in Reid was a plurality only, and that the case did not overrule In re Ross, in which a citizen’s right to trial by jury was found not to apply in the context of consular court prosecutions outside the territory of the United States. Notwithstanding the lack of five votes, Black’s opinion in Reid is typically treated as representing a pretty absolute rule of constitutional law: for citizens, the constitution is portable. Is Kennedy backtracking from that here? If so, having citizenship now gets you less.

(There is also the decision today in Munaf, in which the Court throws the bone of statutory habeas to citizen petitioners, in part by virtue of their status as such, only to find no relief with a decision playing hard on the retrograde territorialist logic of Schooner Exchange v. McFaddon.)

More obviously, the lack of citizenship may be less of a disability post-Boumediene. It’s still a part of the picture: on page 36 of the slip, where Kennedy lays out the test for determining the reach of the Suspension Clause, citizenship is in effect included as half a factor (and one that’s then completely ignored, for obvious reasons). Citizenship status seems to be one of the elements of formalism that Kennedy has in his cross hairs (the other being sovereignty). This doesn’t mean that noncitizen status is by any means irrelevant — Kennedy concurred in Verdugo-Urquidez, with some language playing up the citizenship factor — but perhaps to the extent “practical obstacles” to the application of constitutional rights don’t inhere, noncitizens now have an opening they didn’t have yesterday.

A First Take On Boumediene: Habeas Corpus and Error Correction

by Steve Vladeck

First, my thanks again to Roger, Peggy, and the rest of the OJ crew for the opportunity to share some preliminary thoughts on Boumediene. Obviously, there’s already a lot out there, with much more yet to come. Rather than tackle the big and obvious headline stuff, or try to respond to other points already made, I want to focus on what, for me, was the most fascinating part of Justice Kennedy’s majority opinion—his excursus on the purpose of the writ of habeas corpus.

Consider the following passage, found at pages 55–57 of the slip copy:

Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes’ words, to “cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.” Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant. . . .

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. [alterations in original]

In other words, the constitutional sufficiency of the CSRT procedures is only one small piece of the puzzle. The fact that there is a substantial likelihood of incorrect results, and that such results would cause immeasurable harm, is itself a reason to conclude that the DTA review process is an inadequate substitute for habeas. This may seem like doublespeak, because how can the process be truly constitutionally “adequate” if there is such a high probability of inaccuracy. Chief Justice Roberts certainly seems to think this is nuts in his dissent. But I think Kennedy is saying something else here—that accuracy is the desired end, and procedural sufficiency is but a means thereto.

If so, then such analysis would constitute a potentially sweeping retreat from one of the hallmarks of the Rehnquist Court’s habeas corpus jurisprudence (and the scholarship of the legendary Paul Bator): the idea that habeas corpus is not about error correction; that the “Great Writ” is meant to ensure fair proceedings, but not necessarily accurate proceedings. (For one troubling example of such a case, see Herrera v. Collins).

Kennedy is careful, of course, to note that this discussion is limited to the context of habeas petitions challenging detention by executive order, and not other forms of habeas review where there is less reason for skepticism. As he says on pg. 57, “Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here.” But I wonder if that’s not closing the barn door after the furry little things have already left, for it begs the question whether the “underlying detention proceedings” are “thorough,” and it suggests that habeas review is far broader whenever there are reasons to think that such proceedings are not.

The idea that habeas actually should be about error correction (or, at least, should also be about error correction) when there are reasons not to trust the underlying detention proceeding is reminiscent of the heyday of the Warren Court’s habeas jurisprudence. I’m just surprised to see it re-emerge here, and so prominently, at that…

I hope to have some more later on the relationship between Boumediene and the equally significant decision today in Munaf, but thought I’d pause here, for now.

Israeli Supreme Court Upholds Unlawful Combatants Law

by Kevin Jon Heller

The Territorial Reach of the Constitution

by Roger Alford

Just to get the discussion going, I wanted to highlight the Court’s analysis in Section IV of the Boumediene decision on the territorial reach of the Constitution. The precise question presented is the geographic question of whether the constitutional guarantee of the writ of habeas applies to detainees at Guantanamo Bay.

Before discussing the case, it is worth highlighting the different models that have been used to address the territorial reach of the Constitution. As Gerald Neuman has noted in his important article “Whose Constitution?” in the 1991 Yale Law Journal, there are four major models: universalism, membership, territorial, and a balancing approach of global due process. Here is how Neuman summarizes the four models:

Universalist approaches require that constitutional provisions that create rights with no express limitations as to the persons or places covered should be interpreted as applicable to every person and at every place. The precise commands of the provisions, especially of those creating rights subject to balancing tests, may vary from place to place, but one can never simply dismiss the provisions as inapplicable….

Social contract rhetoric has played a significant role in American constitutionalism. Social contract theory seeks to legitimate government through the idea of an actual or hypothetical agreement embodying the consent of the governed who have established the state and empowered it to govern. Some accounts of social contract theory identify a limited class of “members” as the proper beneficiaries of the contract. The beneficiaries have rights based in the contract; nonbeneficiaries are relegated to whatever rights they may have independent of the contract….

Under a strictly territorial model, the Constitution constrains the United States government only when it acts within the borders of the United States. Strict territoriality prevailed as dogma for most of American constitutional history, until its overthrow in Reid v. Covert….

This emphasis on the countervailing necessities of overseas action may suggest that all of these models can be collapsed into a brand of harmless universalism: recognize constitutional rights as potentially applicable worldwide, and then balance them away. One might engage in ad hoc balancing in the individual case, or balance more categorically; the balancing process may be intrusive or highly deferential. The concurrences of Justices Frankfurter and Harlan in Reid v. Covert offer an example of this approach as regards citizens’ rights abroad, and Justice Kennedy in Verdugo-Urquidez located himself within the tradition of Harlan’s concurring opinion. This approach suggests that, ultimately, extraterritorial constitutional rights boil down to a single right: the right to “global due process.”


So where does Boumediene fall among those models? It is difficult to say, because in some respects the question is limited by the Court’s determination that Guantanamo Bay effectively is within the territory of the United States. But there definitely is some language in the opinion that seems to suggest a much broader approach than simple territoriality. Here are a few key excerpts:

We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory…. [F]or purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. The Court has discussed the issue of the Constitution’s extraterritorial application on many occasions. These decisions undermine the Government’s argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends. (pp. 23-25)….

In its principal brief in Eisentrager, the Government advocated a bright-line test for determining the scope of the writ, similar to the one it advocates in these cases. Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. That the Court devoted a significant portion of Part II to a discussion of practical barriers to the running of the writ suggests that the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it. Even if we assume the Eisentrager Court considered the United States’ lack of formal legal sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at least to some extent, the political branches’ control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there…. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” (pp. 33-35)….

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. (p. 41).


My first blush reading of the case is that the Court is adopting a rule that the Constitution applies abroad provided the United States exercises de facto sovereignty. I’m not sure if that is closer to a territorial model, the balancing global due process model, or something in between. At a minimum it appears that the Court is rejecting the broad universalist and the narrow membership models.

Roberts Summarizes Boumediene: No One Wins

by Julian Ku

I haven’t had time to come up with anything interesting or cogent about the expected but still disturbing result in Boumediene. And we have an all-star cast of guest-bloggers ready to comment, as Roger points out below. But as a place to begin, it is worth checking out Chief Justice Roberts’ powerful conclusion to his dissent, which I think accurately characterizes the likely result of this decision: more muddle and more litigation.

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit— where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Boumediene “Insta-Symposium”

by Roger Alford

The Supreme Court has just rendered its decision in Boumediene v. Bush, announcing that the DTA procedures are not an adequate and effective substitute for habeas corpus and that the MCA operates as an unconstitutional suspension of the writ.

Opinio Juris is very pleased to announce an “insta-symposium” to discuss the decision. We have an amazing line-up of guests, including Geoff Corn (South Texas), Eric Freedman (Hofstra), Paul Halliday (Virginia), Chimène Keitner (Hastings), Andrew Kent (Fordham), Jenny Martinez (Stanford), Julian Davis Mortenson (Fordham), Michael Newton (Vanderbilt), Deborah Pearlstein (Princeton), Patrick Philbin (Kirkland & Ellis), David Scheffer (Northwestern), Beth Van Schaack (Santa Clara), Steve Vladeck (American), and G. Edward “Ted” White (Virginia).

We look forward to the discussion over the next few days.

Will the US Come Into Line on Hate Speech?

by Peter Spiro

Major War Criminal Arrested in Serbia

by Kevin Jon Heller

Liberian Truth and Reconciliation Commission Comes to the United States

by Peggy McGuinness

Big picture, fine lens: A response to Mohsen al Attar

by Katharine G. Young

My thanks to Mohsen al Attar for his comments on my Article, and to the editors of Opinio Juris and the Yale Journal of International Law for organizing this symposium.



Mohsen al Attar’s comments bring the historical critique of global capitalist arrangements to the contemporary project of human rights, particularly the under-recognized “sub-set” of economic and social rights. He responds to the conceptual micro-study of the minimum core idea, demonstrated in Parts II to IV of my Article, by emphasizing its final conceptual step. This analysis moves upwards and outwards, into the heart of debates about the future of the world economy. Yet my Article suggests the importance of combining this step with a grounded analysis of economic and social rights, as well as the basic background ideas – of market exchange, their distributive consequences and their economic and political justifications – in which they operate. It is only by taking into account the full spectrum of analysis – of both the global market framework and the contours of individual rights claims – that the formidable challenges of economic and social rights, as outlined in the concluding part of my Article, can be addressed. As al Attar notes, I advocate, in large part, a return to more explicit claims of responsibility, causality, and benchmarking, rather than the use of a minimum core proxy. In areas no less complex than the international regimes of trade, aid, security and development, as well as the structures of national economies, such an analysis is as difficult as it is necessary.



As a subject of historical critique, the minimum core concept may be mapped, as I suggest in Part I, on to developmentalist prescriptions of a minimum threshold for national and global redistribution – moderate enough to placate self-interested states and avoid production disincentives, and redistributive enough to transfer economic gains to the sectors or classes which can not otherwise access them. For al Attar, this lends a humanizing character to my suggestions. In the same way that my Article travels from constitutional to international fields of law in relation to the minimum core concept itself, al Attar correctly points out that the idea of economic and social protections is itself borrowed from welfare state design. The ameliorative necessity of such rights, which developed in lock-step with industrialization and market capitalism, were recognized by classical liberal political economists like Adam Smith. Yet their institutionalization came from political struggle and powerful alliances. Both the idea and the movement were sidelined, to deleterious effect, during the neoliberal reforms of the 1990s, and the mantra of privatization, deregulation and liberalization. The transition crises in Eastern Europe and the public health emergency in Sub-Saharan Africa, following on the heels of these reforms, serve as empirical reminders of these consequences.



Nonetheless, the prescriptions of my Article do more than humanize this fact. If it were merely humanizing, it might simply call for a push – even a “big push” – for increased foreign aid. Or it might move a little further, and adopt the “augmented” Washington Consensus, which has finally conceded the importance of social safety nets and targeted poverty reduction. Yet I suggest that there is space within the economic and social rights idea to challenge and rework the institutional forms of market exchange in more effective ways. Part V of the Article offers the beginning outline of a number of pathways.



For example, I suggest that economic and social rights can provide a set of tools for assessing the positive and negative obligations that flow from states to individuals, often via a detailed analysis of the legal protections (and privileges and immunities) that the state has offered private actors. Mohsen al Attar emphasizes the prescriptive parts of my Article – that we would do well to reflect on a state’s positive obligations via indicators and benchmarks, and negative obligations through responsibility and causality. I suggest this orientation, not to rebut justiciability, extraterritoriality and non-derogability concerns – indeed, extraterritoriality remains the most important nut to crack, and will probably be resolved by legal analogies outside of the field of human rights – but to dislodge their hold on the economic and social rights agenda. The full rebuttal is reserved – if any more is needed – to the misplaced division between so-called negative and positive rights.



Instead, my Article emphasises that positive obligations (correlating with economic, social, cultural, civil and political rights) are measurable through benchmarks and indicators: a state’s housing policy, for example, can be monitored by a process of investigation and localized adaptation that may be missed by an asserted minimum core of a housing entitlement. For negative obligations, causality arguments become more critical. By distributive analysis, much of which relies on the tools of economists, one can predict the avoidable and immense material deprivations caused by present institutional arrangements. When a breach of a negative obligation is identified, it can be remedied not only by a state desisting from the offending conduct (as traditional human rights advocacy prescribes), but also by experimenting with different institutional arrangements. In this way, causality arguments arise for positive obligations, and benchmarking activities arise for negative obligations, and so the division between negative and positive obligations itself diminishes.



International committees – al Attar mentions the Human Rights Committee, but I have also detailed the important work of the Committee on Economic, Social and Cultural Rights – and national courts, as well as policy-makers, should become more familiar with these methods and ideas, as should the human rights movement as it belatedly confronts the challenges behind the economic and social rights commitment. While the idea of fundamental material protections – of adequate food, health, housing and education – is a powerful one, it is not alone sufficient to change the current organization of national and global markets. Yet with a careful analysis of current arrangements – both upwards, with high theoretical critique, and downwards, with micro-institutional analysis – ideas remain a necessary part of this development.

Commentary on Katharine G. Young’s article: The Minimum Core of Economic and Social Rights – A Concept in Search of Content

by Mohsen al Attar



Ideas about global capitalism have been in constant flux since the beginning of the twentieth century. In the early 1900s, imperialist theorists such as Hobson and Hilferding argued that inter-state rivalries would bring down the castle; WWI and WWII seemed poised to do just that. Fast-forward to the 1950s and not only did this not happen but the castle was fortified and stood stronger and taller than it ever did before. The reason? Giovanni Arrighi explained in his seminal work, ‘the Geometry of Imperialism’, that changes in international capitalist relations were neutralising the inter-state rivalries of yesteryear. Briefly, vertically and horizontally integrated multinational firms were supplanting the nation-state as ‘the primary form of political organization of world capitalism’ thus reducing instances of cross-border strife. Building on and possibly even supplanting the work of Arrighi, Robinson and Harris detailed in an important article the ways in which neoliberalism was further transforming the existing capitalist order: through widespread integration of national economies in the world trading system and a restructuring of finance and production systems along global lines. Combined – and despite disagreement between the various camps – these critiques of capitalism are invaluable in comprehending the state of the world today.



Having just read Katharine Young’s article, I would argue that much more could be understood about the nature and future of our world by relating the theories of the above-mentioned scholars to the work of the Human Rights Committee as it concerns socio-economic rights. Whereas Hobson and Hilferding, Arrighi and Robinson-Harris, asserted that changes to global capitalism were the result of ‘polarising tendencies’ within the system itself, neither group seemed to consider that the conflict between neoliberalism – the epitome of an ‘obsolete market mentality’ – and society – champion of a democratic human mentality – was (and is) a key catalyst in its transformation. From the rubble of WWII emerged the Universal Declaration of Human Rights, an idealistic – albeit entirely credible – set of obligations to which states committed themselves to respect and promote. This document was followed shortly thereafter by the two Covenants, each guaranteeing a set of interrelated and, as some would later argue, mutually dependent series of rights. It is no secret, and Young’s piece attests to this, that controversy has surrounded the concretisation of socio-economic rights from the moment of their inception.



In her timely piece, Young surveys the various approaches that human rights scholars, human rights activists, and the Human Rights Committee have adopted in their advocacy for socio-economic rights. Being familiar with the literature, I can confidently state that no single article does a better job at compiling the strengths and weaknesses of each trend within the minimum core debate. But Young does more than simply survey the state of the discourse; in the final section, she argues for a reformation of the movement’s preferred approach to the minimum core – to assess a state’s positive obligations via indicators and benchmarks and its negative obligations through responsibility and causality. Despite being a little nebulous at times, her suggestion is a sophisticated one that should be examined by human rights scholars, activists, and state officials for it provides a powerful rebuttal to the justiciability, derogability, and extraterritoriality concerns that seem to perpetually circulate and to frequently undermine progress in the socio-economic rights field.



To return to my introduction, whether Young knows it or not (and seeing that her article is peppered with references to neoliberalism and trade matters, I suspect she does), she is contributing to a wider debate on the ills of unfettered capitalist expansion. When two opposing forces come into conflict ‘one of them has to come out on top’. Capitalism in general – and neoliberalism in particular – weaken democracy and strengthen the market, producing a series of social and economic dislocations. Economists from Adam Smith through to Joseph Stiglitz have been aware of this; in fact, the welfare state was inaugurated to counter-balance the inevitable impact. A variety of groups, such as social movements, non-governmental organizations, and, increasingly, human rights advocates have sought to address these dislocations by either challenging the constitutive elements of the international economic framework or – and here we find Young’s work – by democratising and humanising the global capitalist order. Indeed, Young offers us a coherent and convincing account of the potential of the minimum core, a field otherwise muddled by ambiguity and contradictions, to promote access to material items that would undoubtedly improve our collective quality of life. I would argue that she achieves this formidable feat by being persuaded herself (and, in turn, persuading readers) about two assumptions: 1) That everyone involved in the debate shares in her commitment and refreshing idealism to social justice and 2) That human rights have become a foundational element in a quasi-global constitution to which all nations are bound. Her assumptions may or may not be founded but this is inconsequential for the approach she advocates is a sound one that, and to repeat myself, deserves much consideration by scholars within the field if we are to move socio-economic rights and social justice beyond the facade of academic rhetoric.



Ultimately, Arrighi and Robinson-Harris still believe that the cyclical rise and fall of great powers at the hands of other great powers determines global capitalism’s evolutionary course. Social movements would likely dispute this claim – and the scholarly treatment of the impact of social movements on regulatory frameworks would corroborate their retort – by pointing to the numerous instances in which popular struggle has altered the course of contemporary history. The human rights movement is part of this struggle and is a powerful force in the remaking of the world along more democratic and equitable lines. Young’s ideas about indicators and benchmarks, about responsibility and causality have the potential of contributing to the struggle in a practical and meaningful way by altering our very perception of the rights we advocate for. I conclude this comment by urging others to read her article (with particular attention to the final section) and by urging Young to develop her ideas; they are most welcome and much needed.


The Minimum Core of Economic and Social Rights: A Concept in Search of Content (abstract)

by Katharine G. Young



Within the catalogue of rights—whether conceived in constitutional or international terms—economic and social rights are said to be especially indeterminate. This Article inquires into the conceptual foundations of a minimum core of economic and social rights. This concept of the minimum core has been applied to provide determinacy and even justiciability to the rights to food, health, housing, and education, and also (most ambitiously) to give substance to minimum legal obligations in both national and global distributive justice debates. This Article brings together the methodological insights of comparative constitutional law and international human rights, and traces the ways in which concepts are borrowed from each field. By doing so, this Article disaggregates three contrasting approaches to giving content to the minimum core—that of a normative essence, minimum consensus or minimum obligation. This Article further demonstrates how each approach is ultimately insufficient as a conceptualization of social and economic rights and their enforcement. It ends by gesturing towards a new way of approaching a universalized discourse of minimums in economic and social rights.



You can read the entire article here.

GITMO Interrogators Instructed to Destroy Notes

by Kevin Jon Heller

Who is the “Sovereign” in Sovereign Debt? – A Response to Tai-Heng Cheng and Mark Weisburd

by Odette Lienau

First, I would like to thank Opinio Juris and the Yale Journal of International Law for hosting this symposium and providing the opportunity to discuss my recent article, Who is the “Sovereign” in Sovereign Debt? Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century. I would also like to thank Tai-Heng Cheng and Mark Weisburd for their thoughtful comments on the piece. Given that their comments raise overlapping themes, I address them jointly in this response.

I structured the article in three sections, which deal with the potential non-continuity of sovereign debt as questions of doctrine, economic feasibility, and political possibility, respectively. Perhaps more importantly, I position my discussion of sovereign debt continuity within the larger framework of asking about legitimate sovereignty, where I think it belongs. While the comments focus on the first doctrinal section, and my response here follows suit, I would welcome discussion on the other issues as well. I should also clarify that I do not intend the article to be a defense of U.S. Chief Justice William Howard Taft’s doctrinal approach in the 1923 Tinoco arbitration between Great Britain and Costa Rica. Nor do I intend to propose the award as a definitive solution to the problems of identifying illegitimate sovereign debt. Rather, I see the discussion of Taft as responding to the current hostility expressed toward weakening a strict rule of sovereign debt continuity. I hope that explicating and contextualizing this historical alternative will help to re-open what is too often considered a closed question.

Now to the comments:

Tai-Heng Cheng argues that the Taft arbitration cannot be precedent for the odious debt doctrine, at least as formulated by Alexander Sack, for two reasons. First, he highlights that private arbitrations such as this may have persuasive or secondary authority as international law but are not strictly precedential. Second, he emphasizes that the facts of the Tinoco arbitration involve regime change rather than state succession, which is the focus of Sack’s odious debt doctrine.

On the issue of what constitutes strict or technical precedent, Tai-Heng is certainly correct. Nonetheless, international legal treatises persist in citing the Tinoco arbitration as the main case for the idea that sovereign recognition in international law depends on a government having “effective control” over a territory and its people. Of course, these treatises themselves do not carry strict precedential weight (as do few things in international law), but they do point to the very high standing of Taft’s award as a source of international authority. This raises interesting empirical questions about how one portion of a finding can achieve the status of pseudo-precedent while other portions, which ground the actual award for Costa Rica, lapse into semi-obscurity for decades. Such a broad empirical question is beyond the scope of my article (not to mention this response). However, it does suggest that the embrace of the Tinoco finding on the part of mainstream jurists is only partially complete. Even if the ‘effective control’ element of the case formulates or clarifies pre-existing international law on sovereign recognition (thus explaining its higher status), the simultaneous dissociation of a government’s recognition from its absolute right to bind future generations is not – or should not be – easily ignored.

As to the second question of whether Taft’s award can even be pseudo-precedent for odious debt cancellation, given its different factual context, this depends on what one means by ‘odious debt.’ Although Alexander Sack’s formulation is conventionally understood to be *the* doctrine, there is no particularly good reason that this should be the case. Certainly Taft himself (writing in 1923) would not have had recourse to ‘the doctrine’ as formulated by Sack in 1927 or indeed to any clear pre-existing international notion of what should define ‘odiousness.’ Indeed, part of my argument is that any characterization of legitimacy or illegitimacy in state obligations necessarily implies (and reinforces) a corresponding conception of what constitutes valid sovereignty and valid sovereign action. Similarly, adopting a particular conception of legitimate sovereignty suggests that (1) sovereign contracts that violate this vision are not ‘sovereign contracts’ properly so called; and thus (2) such contracts are ‘odious’ under that particular conception of sovereignty and therefore do not extend beyond the downfall of the regime. Taft’s finding insists that even if a government has control of a territory and its people – as did the Tinoco regime in Costa Rica – that government must still comply with its own internal laws and adhere to a legitimate government purpose in entering into sovereign obligations. This counters what I call a strictly ‘statist’ or absolutist conception of sovereignty in sovereign debt, which would allow any government defined by ‘effective control’ to bind future generations, even while disregarding internal legal mechanisms or the requirement of valid government purpose; such a framework would deny the possibility of ‘odiousness’ on any characterization.

But doesn’t this broad and contingent approach leave the idea of ‘odiousness’ bereft of a clear definition? And doesn’t it raise the risk of allowing multiple competing visions of ‘odiousness’ to emerge across different forums? Yes to both, and I hope jurists and others will consider this open-endedness an invitation to further discussion. More importantly, I hope the discussion moves beyond the question of how to define (or deny) the existence of a pre-existing odious debt doctrine and addresses more squarely how any treatment of debt continuity rests upon and reinforces a broader political theory. (I should also point out that the problem of competing standards in other legal areas does not necessarily shut down economic activity; it may even help to focus direct attention on the pros and cons of pressing for greater harmonization.)

Mark Weisburd contends, additionally, that Taft’s award is not nearly as far-reaching as I suggest, and that the oil concession finding in particular stands simply for the idea that local law governs a contract if the contract so provides. While this basic formulation is true, the facts of the case invited Taft to decide whether or not the law on the books should be carefully applied to a (dictatorial) government in the same way that it would be applied to a lowly private company. It is unlikely that the Tinoco regime considered itself equally bound by its own laws (or even paid them close attention) in agreeing to this contractual provision. Furthermore, earlier theoretical approaches consider the sovereign government to be ‘above the law,’ even in a law-abiding polity. Had Taft adopted this latter statist or absolutist approach, in which local law and legitimacy are simply shaped and updated by sovereign decree or action, he would have arrived at a different conclusion.

Although I don’t make it sufficiently clear in my article, the potential use of this rule-of-law approach, as I call it, could extend beyond a context in which a government’s law was explicitly applied to that government through the interpretation of a specific contract provision (as in Tinoco). It may be the case that foreign law controls for a contract involving country Z, but the question still arises as to how Z’s government may bind itself and future generations. The foreign court could simply accept the assertions of Z’s government that it acted properly by virtue of its governmental status (statist), insist that only Z’s people acting through representative institutions could enter binding obligations (popular), or attend to Z’s constitutional principles and relevant statutes to determine whether the contract was properly concluded (rule-of-law). It could also, as an additional or separate requirement, require that the contract was entered into for a legitimate government purpose, at least so far as the creditors knew.

It is important to point out that this latter element of legitimate government purpose (an outcome oriented conception of valid sovereign action) is separate from the three other approaches, which focus on the process by which a state’s people relate to its government. I do not mean to interpret Taft’s Royal Bank finding as deriving from a particular Costa Rican legal provision, as Mark seems to suggest. It is quite clear that the Royal Bank award presents a separate and basic requirement for legitimate government purpose in sovereign contracting.

Both Mark and Tai-Heng raise questions about how broadly applicable (or even helpful) my reinterpretation of Taft’s approach might be. Mark highlights the flagrant nature of government wrongdoing in the Royal Bank portion of the Tinoco case, and the unusual ease with which creditors knew of this wrongdoing. Tai-Heng points out that my framing of Taft’s arbitral decision “does not go very far in protecting the oppressed.” I agree, and these shortcomings are part of the reason that I present Taft’s approach with caveats. That said, I think it is an important award to resuscitate for closer contemporary study, perhaps as a minimum standard for sovereign debt continuity. The possibility of incremental doctrinal development in the face of an unchanging text is surely not foreign to jurists. The ideas of ‘legitimate government purpose’ and ‘creditor knowledge’ have developed in international and domestic law, and they need not remain stuck in a 1923 fact pattern or in 1923 international norms. Furthermore, caution and incrementalism may be virtues in formulating international legal frameworks that define sovereign action as good/bad, civilized/uncivilized, or odious/non-odious – particularly when significant capital flows are at stake. And while identifying sovereign state action through rule of law does allow oppressive governments to change the laws at will, it also forces them to enact those changes if they wish their contracts to be internationally binding. If nothing else, this makes the nature of the ruling regime more transparent to the population and provides the general public with clear grounds for identifying and resisting objectionable government policies. And, of course, none of this precludes the option of debt cancellation as a gesture of solidarity, compassion, or justice for an incoming state or regime.

Response by Professor Weisburd

by Mark Weisburd

Odette Lienau’s Who is the “Sovereign” in Sovereign Debt? provocatively argues that Chief Justice Taft’s method of analysis in his 1923 arbitral award in the so-called Tinoco arbitration offers a useful approach to controversies over so-called odious debts owed by states, that is, debts incurred for purposes unrelated to the well-being of the population of the state responsible for the debt. Lienau argues that Taft applied what she calls a “rule of law” approach, making the enforceablility of the obligations in question in that arbitration dependent upon the compliance of the regime incurring the debt with its own law. Such a rule, she argues, would provide some protection of a population against a corrupt government while establishing a relatively objective standard against which lenders could evaluate the risk that any particular debt would not be paid. Lienau contends that such a mode of analysis would avoid the difficulties posed by the two other most common ways of addressing odious debt situations.

One of these approaches, which Lienau labels “statist,” enforces against a state all debts formally attributable to that state. This view is justified as necessary to avoid throwing credit markets into confusion; it is problematic because it would require a state to bear the burden of all debt concluded in its name, even those debts incurred in the name of the state by officials whose intentions to steal the borrowed money were obvious at the time of borrowing. The other approach focuses on the popular legitimacy of the regime incurring the debt, and makes the enforceability of the debt dependent on the purpose for which the debt was incurred and to which the proceeds of the borrowing were applied. The advantage of this view is that the state would not be responsible for debts incurred in its name but conferring no benefit on its population; the disadvantage is that it makes the enforceablility of debt uncertain at the time the debt is concluded, in turn reducing the willingness of lenders to deal with any government not both perfectly democratic and perfectly incorruptible.

Lienau is certainly correct that the binary choice to which she objects is undesirable. It is absurd to impose the burden of the loss from a theft on the victims rather than on the thief, but it is also unreasonable to expect lenders to lend money in the knowledge that they may be denied repayment on the basis of vague standards whose applicability in a particular case may be difficult to determine. Unfortunately, it is not clear that the approach Chief Justice Taft actually took in the Tinoco arbitration will do the work Lienau asks of it.

To explain this conclusion, it is necessary to describe the two claims Taft addressed. One was brought on behalf of a British firm whose oil concession, granted by the Tinoco regime of Costa Rica, was cancelled by the government which was elected to power after Tinoco’s overthrow. The other was brought on behalf of a British bank which had extended credit to the Tinoco regime by honoring checks, totaling $200,000 in American money, drawn on a Costa Rican government account with the bank and payable, in essence, to Tinoco himself and to his brother. The Costa Rican account had been established by the deposit in the British bank of certain notes issued by the Tinoco government; the bank’s claim arose when the successor government refused to pay the notes.

Taft ruled for Costa Rica on both claims. As to the concession agreement, Taft concluded that a crucial provision, exempting the concessionaire from certain taxes, had been entered into in violation of the Costa Rican constitution, and was both unenforceable itself and so central to the agreement as to render the entire agreement unenforceable. As to the notes held by the British bank, Taft concluded that it was so obvious at the time the checks were drawn that the $200,000 was for the personal use of the Tinoco brothers rather than for governmental purposes that the bank simply could not enforce the debt against Costa Rica.

While these determinations at first blush seem to support Lienau’s argument, closer examination renders that conclusion doubtful. In the first place, as Taft noted, the concession agreement itself provided that “disputes in respect to . . . execution of this contract shall be . . . decided according to the laws of Costa Rica.” Taft was therefore not somehow crafting his own approach to resolving this matter. Rather, he was applying the internal law of Costa Rica in a case where the agreement giving rise to the claim expressly made that law applicable. To be sure, Taft did not explicitly state that Costa Rican law governed because of the language of the concession agreement; rather, he stated that “[the concession’s] validity is, as I have already said, to be determined by the law in existence at the time of its granting; and that means the law of the government of Costa Rica under Tinoco.”

Unfortunately, it is not clear where in the preceding portion of his award Taft had taken that position. The most logical explanation is that his reference is to the article of the concession agreement he had quoted earlier. This part of Taft’s award, then, appears to stand for no more than that local law should govern a contact if the contract expressly so provides, a proposition of fairly limited utility.

As to Taft’s disposition of the claim of the British bank, the problem for Lienau’s argument is about the reverse of that just discussed. Whereas the parties’ agreement appears to have been Taft’s basis for relying on Costa Rican law as to the concession agreement, it is not even clear that Costa Rican law was the source of the rule of law Taft applies to the bank’s claim. He states:

[The bank] must make out its case of actual furnishing of money to the government for its legitimate use. It has not done so. The bank knew that this money was to be used by the retiring president, F. Tinoco, for his personal support after he had taken refuge in a foreign country. It could not hold his own government for the money paid to him for this purpose.

What law imposed this obligation on the bank is not stated; certainly, Taft does not explicitly ground this obligation in the internal law of Costa Rica. The result regarding the bank, then, cannot be ascribed to the approach to sovereign debt advocated by Lienau, and the analysis Taft actually employed would not offer the advantage to creditors to which Lienau refers. That is, it is not clear that creditors’ uncertainty would be reduced if other tribunals followed Taft’s method of analysis of the bank’s claim, since it is not clear that Taft relied on a standard that the bank would have realized was applicable at the time of the transaction, even if it had assumed that its rights depended on Costa Rican law.

The bank’s claim provides a problematic precedent for a second reason. As the foregoing quotation indicates, Taft based his determination on his conclusion that the bank knew that it was paying money for Tinoco’s personal use, that is, that he was stealing the money. Indeed, he quotes “an agent of the bank” as stating that it was clear that Tinoco was about to fall at the time of the initial deposit of Costa Rican government notes. The Tinoco case, that is, was an extreme one. The dishonesty of the transaction was obvious as soon as the checks were presented to the bank. It is not at all clear how Taft would have dealt with a case where the matter was not so obvious to a lender at the time of the transaction, and thus not clear how broad the range of application of his rule would really be.

Odette Lienau is to be commended for devising an original approach to the odious debt dilemma. Her proposed solution, however, needs work.

Commentary on “Who is the Sovereign in Sovereign Debt?” by Odette Lienau

by Tai-Heng Cheng

My thanks to Opinio Juris and the Yale Journal of International Law for inviting me to comment on an excellent article by Odette Lienau titled “Who is the Sovereign in Sovereign Debt?” 33 YALE J. INT’L L. 63 (2008).

Odette addresses with aplomb the difficult problem of whether a government should be made responsible for the financial debts incurred by a prior despotic government. She accurately points out that this problem implicates two conflicting global policies: “financial workability” and “greater attention to states’ underlying populations.” (p. 110). Canceling debt risks damaging creditors’ balance sheets and credit markets, as well as limiting the state’s access to future capital. But imposing debts incurred by a despot on his victims after he is long gone seems unfair.

Odette looks back to move forward. She reinterprets Chief Justice Taft’s famous 1923 Tinoco arbitration award to propose a solution to balance the needs of credit markets and the formerly oppressed. Taft decided that Costa Rica would remain responsible for sovereign debts incurred by Frederico Tinoco, the former Minister of War who had seized power unconstitutionally. However, sovereign debts could only have been made in accordance with Costa Rican law and for governmental purposes. Thus, Costa Rica was not responsible for concessions that were never properly made under Costa Rican law. It was also not responsible for $200,000 in loans purportedly extended to Costa Rica but in fact lent to finance Tinoco’s trip abroad and an advance payment to his brother. Extrapolating this decision as “precedent for odious debt cancellation,” (p. 90) Odette proposes that governments today should be responsible for the sovereign debts incurred by their predecessor government even if that government was despotic and abusive. The only exceptions would be if the debts had not been incurred in accordance with the state’s domestic laws, or if they were not for legitimate government purposes.

Odette’s careful development of her thesis has many marks of good scholarship: the framing of an international problem; the identification of conflicting policy goals; the study of past decisions; and, importantly, the invention of an alternative approach to promote and harmonize the relevant policy goals. With some modesty, Odette states: “The . . . analyses presented here are insufficient to ground a strong policy proposal.” (p. 110). How might this be so?

Doctrinally, the Tinoco arbitration is not precedent for anything. Arbitrations, being privately sponsored systems of dispute resolution, derive their authority from the consent of parties to the arbitration. Thus, arbitral awards have long been held to bind only the parties and only in that dispute. An award may be persuasive, or even a subsidiary source of international law, as provided for by Article 38 of the Statute of the International Court of Justice codifying the customary law on sources of international law. However, to call it precedent strictu sensu is overstating its legal authority.

Further, contrary to what some scholars have asserted, the Tinoco arbitration does not support a doctrine of odious debt. The Tinoco arbitration concerned government succession, not state succession. The putative doctrine of odious debt could only apply to state succession, not government succession.

In state succession, there are no comprehensive rules as to whether the successor state continues to be bound by the obligations of its predecessor state. Thus, an odious debt doctrine, if it existed, could supply rules governing a narrow category of debt obligations to fill the interstices.

In government succession, international law has long held that a successor government is always responsible for the debts of its predecessor. As Odette reproduces Taft’s invocation of John Basset Moore: “Though the government changes, the nation remains, with rights and obligations unimpaired.” (p. 74).

The Tinoco award is consistent with exclusion of a doctrine of odious debt from government succession. Taft stated that restorationist Costa Rica government was responsible for the debts of the Tinoco government. The successor Costa Rica government was not responsible for the concession in question not because it was nullified by odiousness, but because it was improperly executed under the law applicable to the concession. The successor government was not responsible for the debt incurred by Tinoco for his personal use not because it was a state debt invalided by odiousness, but because it was never a state debt to begin with, even if it was dressed up in sham words to disguise it as such. Under the award, had the Tinoco government incurred debts under Costa Rican law to buy arms or pay soldiers to murder, rape and plunder resistance fighters, the resistance could have found themselves responsible for those debts when they formed the restorationist government.

Ultimately, however, since Odette is concerned with the invention of law, doctrinal irregularities of her proposal under existing law are of less import. What matters most is whether the proposal does what it says it will do.

Here the devil is in the details. Odette states that one advantage of her proposal is that “it presents a coherent framework for understanding internationally valid sovereign action on the basis of a state’s internal rule of law.” (p. 81). But if the rule of law in this context means simply that tyrants will have to enter into loans or concessions with foreigners by complying with proper domestic legal procedures, this proposal does not go very far in protecting the oppressed. One of the hallmarks of tyrants is their ability to change laws to suit their whims.

Another potential advantage of Odette’s proposal is that it is supposed to “pay greater attention to a state’s underlying populations.” (p. 110). When ravaged by a despot, a state desperately needs money: to rebuild its roads; educate its children; care for its injured. There is no nexus between the injustices of the past and the financial needs of the future. Canceling loans that financed oppression in the past does not necessarily account for the impact on access to fresh loans and damage to business relationships. Conversely, respecting debts incurred legitimately does not account for their financial burden on the population. If the policy goal is to stabilize and develop transitional states, then the law we recommend should not fixate on old grievances. Instead, the legal principle guiding renegotiation should focus on the effect of termination or continuity of obligations on the state moving forward.

One of the joys of membership in the international college of jurists, along with Odette and others, is the intellectual exchanges that unite us in the search for better laws. Opinio Juris has enhanced this experience by providing an opportunity here to debate, discuss, and disseminate. I look forward to vigorous responses from Odette and others, after which I hope we will have a drink together.

Who is the “Sovereign” in Sovereign Debt? Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century (Abstract)

by Odette Lienau

Combining legal interpretation with political science analysis, this Article highlights the competing “statist” and “popular” conceptions of sovereignty at stake in sovereign debt issues. It argues that these two dominant approaches do not exhaust the offerings of intellectual history and considers an alternative approach that emerged in the early twentieth century and may be of relevance again today. The Article contends that U.S. Chief Justice Taft’s foundational 1923 Tinoco decision, which grounds the current approach to sovereign governmental recognition, has been misinterpreted to support a purely statist or absolutist conception of sovereignty. It argues that a proper interpretation presents an intermediate or “rule of law” framework that coincides with Taft’s domestic jurisprudence and provides an alternate conception of sovereignty for the current lending system. In emphasizing the historical and theoretical contingency of the current sovereign debt regime, this Article problematizes the assumption in mainstream international finance that only a narrow conception of sovereignty and a strict practice of debt repayment are consistent with a functioning sovereign credit market. Considering the economic and geopolitical context of Taft’s decision, the Article also suggests that the changing nature of creditor competition may partially account for variations in the concept of sovereignty underlying sovereign debt.

You can read the entire article here.

Roma Protest their Mistreatment

by Kevin Jon Heller

Whose Rights? Which Equality? A Reply to Professor Bennoune

by Peter Danchin

I wish to thank Karima Bennoune for her criticisms and comments on my article “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law.” I wish also to thank Jon Finer and the editors of the Yale Journal of International Law for this wonderful opportunity to discuss the piece.

The inspiration behind Suspect Symbols is the idea of “value pluralism” which, as stated in the Introduction, takes the plurality of valuable options and ways of life to be ultimate and irreducible. The defining features of value pluralism are thus its anti-monistic position as an ethical theory, its view that conflicts of values are an intrinsic part of human life and that there is no single right answer in choosing between them, and that conflicts between entire ways of life suggest that not only individuals but also communities may be the principal bearers of rights (and duties) in pluralist political orders.

If we think even for a moment about current controversies in the world involving claims to freedom of religion—whether the so-called affaire du foulard in France and other European nation-states (and importantly also Turkey); the Muhammad cartoons controversy in Denmark and other predominantly Western states; or various areas of family law on issues such as marriage, divorce and custody—we can’t help but be struck by the variety of normative settlements both within and between different ways of life and the patchwork of legal dispensations that actually exist in the world. All states enact laws limiting the religious activities or practices of individuals and groups in that society to some extent, and in doing so all states assert certain specified reasons and grounds of justification for such limitations.

Irrespective of how such issues as the wearing of the Islamic headscarf may be resolved in particular domestic legal systems, the animating question for my work is how such questions are to be addressed as matters of international law. Do such practices perhaps violate or are they rather protected by international human rights norms regarding freedom of religion and belief and other associated rights? What, in particular, would we need to know in order to make such a determination? Indeed, is such a determination possible either as a matter of law or at the level of theory?

These are the questions that Suspect Symbols seeks to engage. Using the affaire du foulard as its theme, the article explores how even neutral laws of general applicability such as France’s Law 2004-228 banning the wearing of ostentatious religious symbols in public schools can result in claims of differential treatment (and thus unfair discrimination) by restricting the activities of only certain individuals or groups. Such questions of equal treatment, in turn, call into question the historical relationship between religion and the state with each state’s particular religious identity and constitutional matrix giving rise to its own complex patchwork of compromises and dispensations. The article’s general argument is that, together, such considerations of religious, ethnic and cultural diversity—and, in particular, deeply-held conceptions of individual and collective identity—suggest certain limits to the rationalist ambition of advancing a tidy and universally applicable theory of religious freedom in international law.

In this respect, the project is similar in inspiration to John Gray’s recent attempt to formulate a variety of “agonistic” liberalism which is “grounded, not in rational choice, but in the limits of rational choicelimits imposed by the radical choices we are often constrained to make among goods that are both inherently rivalrous, and often constitutively uncombinable, and sometimes incommensurable, or rationally incomparable”. See John Gray, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age 68-9 (1995). The argument thus pursues three lines of critique similar to those earlier advanced by Joseph Raz in his Morality of Freedom, as follows:

(i) in terms of method, by rejecting the notion of a fixed structure of basic liberties in recognition of the fact that the form of rights that best promotes autonomy is necessarily indeterminate and variable;
(ii) by recognizing that intrinsically valuable forms of human flourishing and ways of life enter into the value of autonomy itself such that forms of autonomous choice will vary in different societies; and
(iii) in acknowledging that incommensurabilities between ultimate values set a limit to the rationalist ambitions of legal and political philosophy.

Given this as the underlying ethos and logic of Suspect Symbols, it is rather dispiriting to note that Professor Bennoune has apparently commented on the article she wished I had written rather than the one I actually wrote. Rather than take up the article’s central conceptual and theoretical challenges regarding value pluralism and incommensurability of value, what attracts Bennoune’s initial interest and concern is footnote 214 at the end of the article and its discussion of the Shah Bano case. In particular, Professor Bennoune’s criticizes my account of Shah Bano for being insensitive to issues of gender equality and for “express[ing] little concern for Muslim women themselves who may be denied post-divorce maintenance” under Islamic family law in India. The article thus “only centers inter-group dynamics, not intra-group dynamics” and, while it does suggest “contestation as a remedy” in cases of conflict between competing claims to religious freedom and gender equality, it makes “no suggestion of what such a process could or should produce—or how it is to be mediated—or how women can be empowered within it.”

These are justified and very real concerns (which incidentally I personally share) and there are indeed libraries discussing this specific aspect of the relationship between religion and human rights. But in choosing the particular perspective of gender equality and the patriarchal structure of religious law and practice, Professor Bennoune misses the main point of the article. First, why should an article directed to the question of value pluralism substantially privilege one particular type of equality claim over others? There can be no doubt that women are an oppressed group whether in different religious groups or nation-states themselves (see, e.g. Catherine MacKinnon’s “Women’s Status, Men’s States” in her Are Women Human? And Other International Dialogues at pp. 1-14). But why focus on this particular oppressed group as against others? Why not focus, e.g., on the claims of children who may suffer various severe harms in the family, religious groups and states (think of the recent case involving the forced removal of 450 children from a polygamous Mormon group in Texas)? Why not focus on sexual minorities who face various forms of “dual subordination”, e.g. lesbian Muslim women in India who may seek to reject oppressive patriarchal religious structures only to find that the secular Indian state criminalizes a particular form of sexuality? What about discrimination by religious majorities themselves against certain religious or non-religious minorities (think, e.g., of states such as Iran, Israel or Russia)? And what about discrimination by states towards non-nationals on the basis of religion, ethnicity, gender, sexuality, and so on? These issues are not addressed in the article either; but this does not make them less important or not questions of genuine concern.

Second, and more critically, what is the normative basis for Professor Bennoune’s apparent privileging of claims to gender over religious equality? As illustrated by the detailed discussion of laws proscribing the wearing of the Islamic headscarf in the four nation-states of France, Germany, Turkey and the United States, the article addresses the question of how the State in essence protects whatever state interests it has as against the claims of religious groups. This is not a debate primarily within religious communities, but between religious communities and the State (or majority group) itself. Regardless of the merits of competing positions, the interesting question is why such debates within religious communities create different normative claims to those between religious communities and the state. Here, the idea of value pluralism allows us to see that there is in fact more than one substantive equality claim at issue.

The demand of the Muslim community in India for an autonomy regime and legal recognition of religious and other “personal” laws is a demand against the Indian state for substantive equality on the basis of religion or belief. In a case such as Shah Bano where a conflict arose between a Muslim personal law requiring the return of the marriage settlement upon divorce and the payment of maintenance only for the period of iddat, and the Indian Code of Criminal Procedure requiring monthly maintenance in specified situations of need, we are thus faced with a genuine conflict not between a liberty claim on the one hand and an equality claim on the other, but between two competing conceptions of equality: one protecting India’s Muslim minority against other majority and minority groups and the other the equal rights of women in India regardless of religion. Why recognize or privilege only the second substantive equality claim and not the first? And if both claims are to be given their due, how are the conflicts between them to be resolved?

One possibility is for the State to exercise its overriding legislative power—what Robert Cover once called the state’s “jurispathic” mode of coercively suppressing the “fecundity of the jurisgenerative principle” through the domination of autonomous paideic communities under a unitary law. But if so, what principle should the state employ? Professor Bennoune presumably believes the state ought to privilege whatever is best for women according to some conception of liberal substantive rights. Of course, if certain (nonliberal) religious communities are themselves strongly represented in state-based processes of democratic deliberation, then this may possibly defeat this objective (or, alternatively, may show the inadequacy of state law to protect the religious freedom of various minority groups). Thus, Bennoune must either be assuming a certain form of secular liberal democratic state or the applicability of international human rights norms such as Article 5 and 16(1) of CEDAW. (It is interesting to note that India has a reservation to both these provisions agreeing to abide by them only “in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent”). But what is this conception of equality exactly and who is to decide both its substantive meaning and its scope of application? Does it entail the version of maintenance upon divorce currently seen as meeting the demands of substantive gender equality in say France, or Australia, or perhaps Brazil? Or is it rather the latest account advanced by Catherine MacKinnon, or Abdullahi An-Na’im, or perhaps by Professor Bennoune herself? And how exactly is any such an account to be squared with the Indian Constitution’s commitment in Articles 26-28 to guarantee the communal autonomy of India’s religious minorities?

We may also ask whether the ultimate goal sought under the twin banners of “secularism” (or “equal individual rights”) and “gender equality” is for religious personal law to disappear altogether and to be replaced by a uniform civil code? Recall, e.g., Susan Moller Okin’s striking statement in her essay Is Multiculturalism Bad for Women? that it “is by no means clear, from a feminist point of view, that minority group rights are ‘part of the solution’” and in the case of nonliberal minority groups in liberal states, “female members of the culture … might be much better off if the culture into which they were born were either to become extinct (so that its members would become integrated into the less sexist surrounding culture) or, preferably, to be encouraged to alter itself so as to reinforce the equality of women—at least to the degree to which this value is upheld in the majority culture.” Is this the possibility of a “final solution” of which Isaiah Berlin once spoke—the prospect that mankind could be made ‘just and happy and creative and harmonious for ever’, for which no price could be too high to pay”? If so, what exactly is the price to be paid, how is to be exacted, and what, if any, are the possible alternative futures?

Ironically, in order for the state to be right in its codification of the demands of substantive gender equality, it must ignore or simply override the nuanced and contested internal arguments within religious communities themselves (the very “internal politics and debate among Muslims and those of Muslim, North African, and Arab heritage” which Bennoune oddly claims are “disappeared” in my article). The argument of Suspect Symbols is that there are strong normative reasons why the state ought to exercise considerable deference to the arguments going on there and that the struggle over the status quo ought not to be decided solely by the state according to what prevailing national majorities (recall the intolerant and threatening role of the Hindu Right in the Shah Bano controversy) or secular liberal academics, judges or bureaucrats decide.

Of course, how such claims are to be mediated is, yes, essentially-contested but require at a minimum an intersubjective and dialogic understanding of rights discourse. A helpful illustration of this dynamic is the current debate in South Africa over the recognition of Muslim personal laws. (Incidentally, this issue is now arising in a number of “Western liberal democracies” such as in Canada where the Ontario Law Reform Commission is reviewing whether Islamic principles of family and inheritance law could be used to resolve disputes within the Muslim community in Canada, and in England where the Archbishop of Canterbury has recently noted that Muslim communities seek the freedom to live under sharia law and has urged an exploration of what “might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom.”) After extensive consultations with Muslim communities, the South African Law Reform Commission proposed in July 2003 a draft Muslim Marriages Act which inter alia recognizes Muslim marriages (including polygynous marriages) and deals with a myriad of issues from registration, to dissolution, to custody of and access to minor children, and to issues of maintenance (both spousal and child support). In response, the South African Commission for Gender Equality (CGE) has drafted an alternative bill called the Recognition of Religious Marriages Act which is stated to be a “secular bill of general application” and which provides for the recognition of all religious marriages (thus avoiding issues of codification of specific religious doctrines).

For a recent discussion of the tensions between these two bills, see the research report by Rashida at www.law.harvard.edu/programs/hrp/documents/Manjoo_RashidaWP.pdf. These are precisely the type of conflicts which value pluralism both anticipates and celebrates. In South Africa, we can thus see a robust constitutional dispensation which provides the normative space for contestation between what Shachar has termed a “religious particularist” conception of pluralism in which different religious communities have legal power over issues of personal status and a “secular absolutist” conception in which the state has authority over family law matters and all citizens are subject to a uniform secular family law. That this contestation will yield varying forms of legal pluralism and accommodation while at the same time seeking to maintain the existence of different majority and minority cultures should not surprise us either descriptively or normatively.

Far from attempting to “opt out of the debate between universality and cultural relativism” as Professor Bennoune alleges, such a view of value pluralism seeks to take both notions seriously and endorses neither illiberal nationalism nor religious fundamentalism. If this has a “whiff of relativism” to it then yes, guilty as charged. But, following Steven Lukes, we should be careful to note that pluralism differs from relativism in at least three ways:

(1) pluralists see value choices as determined by “fundamental moral categories and concepts that are part of people’s being, thought and sense of identity,” whereas relativists see “whole outlooks as determined by forces of which people are unaware;”
(2) pluralists see cultural differences as “bridgeable” whereas relativists do not; and
(3) pluralists take the “values that divide cultures, groups and individuals to be objective, whereas relativists do not.”

In order for value pluralism not to lapse into the subjectivism of either utopian universalism (fundamentalism, whether religious or secular) or apologetic relativism (illiberal nationalism), it must strive for objectivity by continually seeking an overlapping consensus on the conflicting ends that divide cultures, groups and individuals. What needs to be recognized is that claims of equality and nondiscrimination—even in the most liberal of societies with their own historically contingent public-private divides—raise fraught and complex questions in their relationship to religion and culture. If the plurality of conflicting values is to be mutually respected (rather than uncritically dominated by a single value or a particular set of values originating in late 18th century Enlightenment thought), conflicts between equality norms and collective identities must be interpreted and intersubjectively discussed in continuity with each society’s historic traditions and reference points. Indeed, it is now widely recognized that “fundamentalist” resistance to the redefinition of cultural and religious forms can be correlated with the extent to which outside portrayals or attempts to influence a tradition are made in condemnatory or contemptuous terms. As Charles Taylor has observed, this is a “self-reinforcing dynamic, in which perceived external condemnation helps to feed extreme reaction, which calls down further condemnation, and hence further reaction, in a vicious spiral.” If the argument of Suspect Symbols is not just “literate” but correct, then the case to be argued against well-meaning advocates such as Professor Bennoune is: “Pluralism for the liberals; relativism for the cannibals.”

Response to Peter Danchin’s “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law

by Karima Bennoune

I am grateful for the opportunity to read and comment on Peter Danchin’s “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law.” The tolerance that it advocates reflects a generally healthy human rights impulse. Hence, I wish that I could write a positive response to the article into which a great deal of thought and work has obviously gone. Unfortunately, while it is well-written and literate, I disagree with a number of its ideas – and find some of them especially alarming from a women’s human rights perspective.

Like much writing in the field of international human rights on freedom of religion, the article is virtually gender blind and fails to seriously take into account the extensive literature in feminist legal theory and in women’s human rights on the range of implications of collective rights for women. Indeed, in his account of the Shah Bano case in India – in footnote 214 – Danchin tellingly worries about the potential essentializing of Islamic culture and history that can come from critiques of gender discriminatory practices of Islamic family law in India, but expresses little concern for Muslim women themselves who may be denied post-divorce maintenance under that body of law. Moreover, it may mean very different things for men than for women that his value pluralism “calls into question the exaltation of individual autonomy.” Some men can take such autonomy for granted within the collective, many women cannot. Ultimately, Danchin only centers inter-group dynamics, not intra-group dynamics. He does not seriously question who speaks for a community nor does he interrogate who defines the claims of a group in a group rights framework.

While his theory of value pluralism is articulately argued, it is unclear what it actually means in the real world of conflicts over human rights, especially for women. He suggests that his aim is to “satisfy and mediate” both the “demand for substantive equality between religious and cultural groups in a theory of toleration and differential treatment by the state and the demand for substantive equality in terms of the treatment by the religious minority of the autonomy of its own members.” However, something has to give in resolving such claims when they conflict – and in the real world it is usually women’s human rights that are surrendered to the particular, to the communal, and to religious justifications for sex discrimination. Human rights law offers insufficient guidance on resolving such conflicts between the right to religious freedom and the right to gender equality. While Danchin suggests contestation as remedy (in footnote 220), he makes no suggestion of what such a process could or should produce – or how it is to be mediated – or how women can be empowered within it.

As to the issue of religious symbols, I will focus only on his discussion of headscarves worn by Muslim women, a topic on which I have written. (For a full exposition of my own views, please see Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression and Women’s Equality Under International Law, 45 Colum. J. Transnat’l. L. 367 (2007). This article is cited in Danchin’s footnote 18. However, the point in Danchin’s text to which the footnote attaches fails to convey the complex, contextual point I was trying to make, and the specific quote in the text is not attributable to me.) Other than my article, Danchin cites almost exclusively literature on his side of the debate on this question. The many critical views of headscarves and their meanings for women written by people of Muslim heritage, like Chahrdott Djavann’s, BAS LES VOILES ! (2003) or Ghais Jasser’s The Twin Evils of the Veil, 5 Soc. Identities 31 (1999), or Malika Zouba’s Voile et dépendance, 59 Confluences Méditerranée 33 (Fall 2006), to name but a few, are omitted.

Danchin refers to religious fundamentalist movements as a “perceived threat” on page 6. In fact, women’s human rights experts like Hilary Charlesworth and Christine Chinkin have argued that religious fundamentalisms represent one of the greatest contemporary threats to the human rights of women. Yet, this topic remains largely overlooked in much of the human rights literature outside of the specialized field of women’s human rights. International human rights scholarship and critique has often portrayed a range of complex socio-political questions as simple matters of difference and individual rights to freedom of religion. No topic has more thoroughly manifested these shortcomings than the commentary on the regulation of headscarves in French public schools.

In the polarizing post-September 11 environment, many international human rights advocates and other critical voices have understandably been concerned with not appearing to be discriminatory against Muslims. To avoid this pitfall, such voices have often responded with a thin anti-racist account of the headscarf controversy in France, an account simply pitting a racist French state against headscarved Muslim girls who are being hampered from expressing their individual religious beliefs. In this narrative, as in Danchin’s article, all of the internal politics and debate among Muslims and those of Muslim, North African, and Arab heritage on this topic is thereby “disappeared.”

I conducted research last summer in the Muslim community in France among those many members of the community who support the ban on religious symbols in public schools as a way to combat pressure on women and girls, and on the secularism that secures their rights, by fundamentalist Muslim organizations. (See The Law of the Republic Versus the “Law of the Brothers”: Muslim and North African Voices in Support of the French Law on Religious Symbols in Public Schools, in HUMAN RIGHTS ADVOCACY STORIES (Deena Hurwitz et al. eds., forthcoming 2008)). Some women and girls may wear such garments as a personal religious or other choice (though the latter term needs to be understood in nuanced, contextual ways). However, fundamentalist groups have been strong proponents of headscarves and other “modest” clothing – pushing more and more restrictive garments that often have nothing to do with the local traditions or heritages of the women and girls in question. For example, girls of North African heritage are exhorted to wear the imported Iranian hijab and djilbab – specific garments entirely foreign to North African religious tradition prior to the Iranian revolution. Coercion and violence are sometimes used to impose such “dress codes.”

Danchin asserts that “In most religious traditions, the wearing of religious symbols or attire – for example the Jewish yarmulke, the Sikh turban, or the Islamic hijab – is not a simple matter of choice, but a matter of religious duty, ritual and observance. (emphasis added)” With regard to the hijab, this is – to borrow his favored paradigm – highly contested. He is choosing one particular interpretation. Many Islamic feminists, and others, dispute the interpretation of religious tenets that make such covering a religious duty per se. And, in any case, for the most part, such “duties” have largely been interpreted by men.

The most worrying assertion that Danchin makes here is to refer to women who wear the hijab as those who “take [their] religious obligations seriously.” (page 6) In this worldview, Muslim women who do not cover become those who do not take their religious obligations seriously – rather than simply having a different interpretation of what it means to be a Muslim woman. Such a view of them can have a range of grave consequences, from ostracization to violence, in the real contexts where women face these dilemmas. It is precisely such implications which have led some feminists of Muslim origin to argue that the wearing of headscarves by some girls in schools, especially schools with a high percentage of Muslim students, can indeed have a negative impact on the human rights of other girls. Thus, some limits on the wearing of headscarves in school in particular contexts may come within exceptions to the right to express religious belief as found, inter alia, in Article 18(3) of the International Covenant on Civil and Political Rights. Danchin, like a number of Anglophone human rights critics of the French law, rejects this possibility out of hand.

His attempt to exempt himself from having to deal with the actual context of these problems, by stating in footnote 11 that he will not consider “relations between local ethnic and religious groups and movements in foreign countries, or the political mobilization of different groups and the nature of their demands with the resulting potential for violence or other rights violations” suggests that he is avoiding the very heart of the problem. The failure of liberal and human rights forces to comprehend and respond forcefully to the menace of religious fundamentalisms, in this particular manifestation to Muslim fundamentalist pressure on women and girls to cover, needs to be addressed.

As to Danchin’s attempt to opt out of the debate between universality and cultural relativism by offering the additional alternative of value pluralism – this alternative has a whiff of relativism itself. He notes that “there is a plurality of ways of thinking not just about the good, but also about the right.” In some ways this is a healthy reminder to avoid hegemonic constructs of universality. On the other hand, for women in particular contexts, such equivocation can be perilous. Danchin posits that “(h)uman rights are not immutable truths[,]” but rather “conventions, whose contents vary as circumstances and human interests vary”. In some ways this is again a helpful warning against Western liberal human rights imperialism. But for those on the frontlines of the struggles against movements that seek to deny women’s equality, and to justify grave and pervasive forms of sex discrimination in the name of religion and culture, such language can represent a damaging capitulation. This approach risks deconstructing the tools they need most.

While I believe the motivation of this article is to advance the laudable goal of preventing religious discrimination in a time of prejudice, because of Danchin’s failure to contextualize, he ends up arguing the very theoretical “view from nowhere” that he critiques. As he is an obviously erudite human rights theorist, I urge him to re-think his approach to these crucial questions.

Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law (Abstract)

by Peter Danchin

Consider the following statutory provision:

In public schools, students are prohibited from wearing symbols or attire through which they conspicuously exhibit a religious affiliation.


Such a law, now familiar in the wake of the recent affaire du foulard in France, appears prima facie to violate the most basic tenets of the right to freedom of religion and belief in international law. Article 18(1) of the International Covenant on Civil and Political Rights provides that everyone has the right to freedom of thought, conscience, and religion, including the freedom “either individually or in community with others and in public or private, to manifest . . . religion or belief in worship, observance, practice and teaching.”

In most religious traditions, the wearing of religious symbols or attire—for example, the Jewish yarmulke, the Sikh turban, or the Islamic hijab—is not a simple matter of choice but a matter of religious duty, ritual, and observance. Within different traditions, there are a variety of ways in which religious symbols work. In Christianity, for example, the crucifix is worn as an ornament of conviction whereas in Judaism the yarmulke is worn as a matter of religious obligation.

For certain ethnic, religious, and cultural groups (whether they comprise the majority or a minority), wearing religious or traditional dress is closely bound up with spiritual practices and is a defining element of group identity. For Islamic girls and women the wearing of the hijab may be a form of social obligation which is religiously-motivated rather than a matter of religious duty per se. This, in turn, has an intergenerational dimension with the continuity of religious tradition being seen as a critical factor in the survival of specific cultural, religious, and linguistic groups.

While the specific historical reasons for the wearing of religious symbols and attire may vary in different religious traditions, the one common feature is the centrality of such practices to the manifestation of religious belief. Given this widely-acknowledged fact, on what possible grounds—and for what reasons—can a state seek to limit this aspect of the freedom to manifest one’s religion?

Considerable scholarly attention has been paid in recent years to the French law proscribing the wearing of religious symbols in public schools and to the issue of Muslim minorities in European nation-states more generally. This Article responds to a deeper concern. Stepping back from these debates, and from some of the more comfortable philosophical and jurisprudential assumptions upon which they appear to rest, it aims at a more rigorous theoretical treatment of the subject.

The Article thus asks whether there is a coherent notion of religious freedom in international law and, if not, why not? In identifying certain problematic aspects of the extant literature, it advances an argument which seeks to overcome the current impasse in liberal theorizing: the idea of value pluralism as a theoretical basis for religious freedom in international law. By acknowledging rather than seeking to avoid the disabling indeterminacies of rights discourse, and by recognizing the intrinsic connection between individual autonomy and communal goods, value pluralism opens new pathways for reimagining the limits of liberal theory and for cultivating an ethos of engagement toward currently intractable questions of subjectivity and intersubjectivity.

The full article can be read here.

Yale Journal of International Law, Vol. 33-1: Opinio Juris Online Symposium

by Editors of the Yale Journal of International Law

The Yale Journal of International Law is pleased to inaugurate its partnership with Opinio Juris in this first online symposium. This week’s symposium will feature three articles recently published in Vol. 33-1 of YJIL, available here.

Our discussion today will focus on the controversies that have arisen over attempts by states to regulate their citizens’ wearing and display of religious symbols. In his article, Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law, Peter Danchin (U. Maryland) looks to cases from France, Turkey, Germany and America, in an attempt to determine whether there is a coherent notion of religious freedom in international law and, if not, why not? He advances his own, novel theory, rooted in the discourse of value pluralism. Professor Karima Bennoune (Rutgers) will be the respondent.

On Tuesday, Odette Lienau (Harvard) will discuss Who is the “Sovereign” in Sovereign Debt?: Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century. In her article, Lienau, a Ph.D.-candidate in Government, blends legal interpretation and political science analysis to propose a third way of conceptualizing and evaluating issues of sovereign debt, beyond the dominant dichotomy between the “statist” and “popular” approaches. Her intermediate or “rule of law” framework emerges from an innovative reinterpretation of a landmark opinion by William Howard Taft. Professors Arthur Mark Weisburd (UNC) and Tai-Heng Cheng (New York Law School) will be the respondents.

The symposium will conclude on Wednesday with a discussion of The Minimum Core of Economic and Social Rights: A Concept in Search of Content, by Katharine G. Young (Harvard). In her article, Young, an S.J.D. candidate, explores what she terms the “indeterminate” landscape of economic and social rights in an attempt to conceptualize a minimum core. Professor Mohsen al Attar (U. Auckland) will respond.

We encourage you to join in the online discussion this week. Throughout the symposium, we hope that you will visit our website to read full copies of the articles and to continue the scholarly conversation.

The ICC’s Foiled Extraordinary Rendition

by Julian Ku

New Developments Regarding the ICC and Darfur

by Kevin Jon Heller

AALS International Law Section Call for Papers

by Peggy McGuinness

Avena Goes Back to the ICJ

by Roger Alford

New Blog on the European Convention on Human Rights

by Chris Borgen

What’s Your Greenage?

by Roger Alford

Djibouti’s Somewhat Silly Case Against France is Rightly Rejected by the ICJ

by Julian Ku

ICTR Refuses to Transfer Munyakazi to Rwanda

by Kevin Jon Heller

Genetically Modified Orgasms

by Roger Alford

The VCCR After Medellin

by Roger Alford

When Lawyers, Philosophers, and Theologians Gather Together

by Roger Alford