Archive for
October, 2008

Why Can’t Obama’s Aunt Contribute to His Campaign?

by Peter Spiro

As we enter in the election home-stretch, there have been some tit-for-tat allegations about foreign money ending up in presidential candidate coffers.  The latest involves a $265 contribution by Obama’s undocumented alien aunt.  But why shouldn’t non-green-card-holding foreigners be able to give political money?  It’s their election, too. . .

Trick or Treaters as Norm Entrepreneurs

by Chris Borgen

Today is Halloween in the U.S. and some kids will be going door to door dressed as norm entrepreneurs. Not that they will be dressed up as Nobel laureates (though some may…) but rather that many kids throughout the U.S. will take pasrt in reverse trick or treating, a project to increase awareness among Americans of forced child labor on many of the farms that provide cocoa to large chocolate manufacturers.

Kids participating in reverse trick or treating will distribute information cards about child labor in the cocoa industry at the houses they visit.  They will even give out samples of Fair Trade Certified chocolates. Hopefully, this project will not only educate the public but also help spur a shift to purchasing chocolate products that are not the result of abusive labor practices. The goal is to reach 250,000 households by the end of today.

I hope it works but I fully realize how difficult the process of norm diffusion can be. Because, although my kids (dressed as Asokha from the Clone Wars and the White Power Ranger) will be handing out Fair Trade cards and chocolate samples, in writing this I realize that I will be giving out some candy at home that has been made by the usual corporate suspects (as well as organic lollipops and pretzels, which have not).  I guess norm internalization must begin at home.

Hamdan’s Sentence Stands — As It Should

by Kevin Jon Heller

As I predicted a few weeks ago, Judge Allred has refused to reconsider Hamdan’s sentence in light of the Bush administration’s argument that he was not entitled to credit for the time he served as an enemy combatant:

A military judge has refused to reconsider the sentence of Osama bin Laden’s former driver, forcing the Bush administration to either release a man it insists is a dangerous terrorist in two months or continue to hold him at Guantanamo Bay as an enemy combatant despite his having served his time after a trial and conviction.

Salim Ahmed Hamdan, 40, a Yemeni captured in Afghanistan in late 2001, was sentenced in August to 66 months for providing material support for terrorism following his conviction by a jury of six officers. But the jury knew that the judge, Navy Capt. Keith J. Allred, planned to credit Hamdan 61 months and eight days for the time he had already been held at the military prison in Cuba.

Prosecutors had sought a 30-year sentence, but the jury, unconvinced that Hamdan was anything more than a low-level al-Qaeda figure, came back with a sentence that ostensibly allows Hamdan to be released Dec. 31.

Military prosecutors argued that Allred erred in deciding that Hamdan was entitled to credit for time held. In a ruling Wednesday, which was released yesterday, Allred refused a government motion that he reassemble the jurors and tell them Hamdan is entitled to no credit.

The government has argued that Hamdan’s status as an enemy combatant is separate and independent of any trial for his violation of the laws of war. U.S. officials said that would allow the United States to continue to hold Hamdan beyond Dec. 31. But such a step would likely lead to criticisms that the military commission trials at Guantanamo are meaningless.

Judge Allred was right to reject the government’s ridiculous argument…

OECD Study on Income Distribution, Poverty, and Relative Tax Burdens of Members, Released October 2008

by Kenneth Anderson

The OECD has released a very interesting new study of relative income distribution, poverty, inequality, and tax burdens and progressivity of the tax burden, comparing the OECD member states.  “Growing Unequal? Income Distribution and Poverty in OECD Countries.”  

The study is sure to produce a number of discussions about the relative position of the US in relation to the OECD countries and the OECD average.  A couple of possibilities:

Income inequality.  The United States, the report says, has the highest level of income inequality of any country in the OECD (although a common criticism of these comparisons is that there are considerable method problems in comparing very large (US) and very small (Denmark) economies).  

Wealth inequality.  Likewise, the US, according to the report, has the highest level of wealth inequality, and indeed it is much higher than the income inequality.  The top 10% in the US, says the report, have 28% of total income, but 71% of total net worth, i.e., wealth.

Tax burdens.  Interestingly, however, the report notes that the United States has the second highest level of tax progressivity in the OECD countries, exceeded only by the small economy of Ireland.  In part this reflects the fact that the US tax system is used much more extensively as a redistributive welfare device than direct welfare payments are; through such things as the earned income tax credit and such mechanisms, the tax system serves as a welfare payment mechanism.  The taxes paid are extracted far more from the wealthiest than in other OECD countries, according to the report.

(I see from a quick google that the report is in fact being widely discussed; the methodologies are also being discussed around the economics blogs.)

The Economist Endorses Obama

by Kevin Jon Heller

Okay, now I’m confused.  The Republicans keep telling me that Obama is a socialist, a Marxist, and a communist all rolled into one tasty expropriation-minded morsel.  So why is The Economist, center-right at best, endorsing him for President?  Has the left infiltrated that august journal, as well?  Call in Michelle Bachmann!

Read the endorsement here.

OJ Ranked 19th in Visitors Among Law Professor Blogs

by Kenneth Anderson

TaxProfBlog has posted a chart with the visitor and page view ranks for law professor blogs for the last quarter.  Our Very Own Opinio Juris is ranked number 19th in visitors.  Of course, we like to think that it is the quality, rather than the quantity, of our visitors that matters.  And we do thank you for coming by.

However, I can’t resist commenting that with the rise of empirical studies among legal scholars, and among international legal studies, we have developed a passion – mania, even? – for counting things.  

It is not historically unprecedented; in the rise of literacy and educated thought in 18th century Britain, a certain mania for counting all sorts of things developed – somewhat in a vacuum, as the tools of statistical analysis had not yet been developed.  This was the period, for example, when amateurs began counting, among other things, deaths and death rates in London and then beyond, and the result was eventually the profession of actuary.  

But what I cannot help noticing is that when we law professors count things, the things we apparently most love to count are matters of importance to being a law professor.  Ever more refined ways of measuring scholarly productivity, for example – isn’t the fastest way to the top of the SSRN rankings (besides an article entitled F***) an article talking about UN News rankings, measuring scholarly citations, etc., etc.?  I admit to being as fascinated by it as the next person – er, law professor – even though in many cases I can’t think for the life of me what difference it ought to make.

Beware of a “Mavericky” America Where Failed Policies are Rewarded, or, Why Francis Fukuyama Endorses Barack Obama

by Chris Borgen

Francis Fukuyama, one of the leading intellectual lights of American conservatism, has endorsed Barack Obama in a short essay in the (aptly titled) magazine The American Conservative

I’m voting for Barack Obama this November for a very simple reason. It is hard to imagine a more disastrous presidency than that of George W. Bush. It was bad enough that he launched an unnecessary war and undermined the standing of the United States throughout the world in his first term. But in the waning days of his administration, he is presiding over a collapse of the American financial system and broader economy that will have consequences for years to come. As a general rule, democracies don’t work well if voters do not hold political parties accountable for failure. While John McCain is trying desperately to pretend that he never had anything to do with the Republican Party, I think it would a travesty to reward the Republicans for failure on such a grand scale.

McCain’s appeal was always that he could think for himself, but as the campaign has progressed, he has seemed simply erratic and hotheaded…

America has been living in a dream world for the past few years, losing its basic values of thrift and prudence and living far beyond its means, even as it has lectured the rest of the world to follow its model. At a time when the U.S. government has just nationalized a good part of the banking sector, we need to rethink a lot of the Reaganite verities of the past generation regarding taxes and regulation. Important as they were back in the 1980s and ’90s, they just won’t cut it for the period we are now entering. Obama is much better positioned to reinvent the American model and will certainly present a very different and more positive face of America to the rest of the world.


Hat tip: The Huffington Post

The Not-So-Final U.S.-Iraq SOFA

by Duncan Hollis

The last few weeks have seen a flurry of news stories on Iraqi political resistance to the “final” text of a U.S.-Iraqi status of forces agreement (“SOFA”).  Last week, the main storyline was that the Iraqi Parliament had better accept the agreed text or else, while the Iraqi Parliament gave every indication they would delay any decision till after U.S. and Iraqi elections.  This week the new storyline revolves around Iraqi proposed changes to the agreement, purpotedly to reflect Iraqi objections to U.S. forces attacking Syria from U.S. bases in Iraq.  Meanwhile, today brings news of a “confident” President Bush who somehow still envisions the deal getting done on his watch. 

Others have more expertise than I do on the Iraqi internal machinations over any SOFA with the United States, but I want to focus on the lurking U.S. domestic process question, assuming U.S. and Iraqi negotiators eventually agree on a new “final” text.  Bruce Ackerman and Oona Hathaway recently argued that Congress must approve the SOFA since its terms and surrounding circumstances exceed the conditions and terms of standard status of forces agreements that the Executive has concluded on its own in the past.  Michael Glennon has taken a similar stance.  For the most part, these objections are substantive; i.e., the obligations undertaken fall beyond existing Executive authorities.  In contrast, I’m more hung up on a process problem that needs resolving before we can fully engage with the substantive questions over the scope of the President’s powers.  Specifically, I’m troubled by the fact that Congress may still not know what the old “final” agreement was, let alone what it might look like in a revised form.  Neither side has released the existing “final” text, although copies of it have leaked in Arabic and a rough English translation.

Beware of Meek Multilateralist America Bearing Gifts, or, the Spirit of Raymond Aron

by Kenneth Anderson

I have no idea whether this report in the Israeli newspaper Haaretz is accurate:

French President Nicolas Sarkozy is very critical of U.S. presidential candidate Barack Obama’s positions on Iran, according to reports that have reached Israel’s government. 

Sarkozy has made his criticisms only in closed forums in France. But according to a senior Israeli government source, the reports reaching Israel indicate that Sarkozy views the Democratic candidate’s stance on Iran as “utterly immature” and comprised of “formulations empty of all content.”

Accurate or not, the sentiment attributed to Sarkozy reminds us that, as one French friend reminded me a few months ago, beneath the surface, the spirit of Raymond Aron is alive and well in France.  That spirit is Atlanticist and coolly realistic.  What it says is … beware of the moment when the Americans finally become meek multilateralists, bearing gifts of group processes and decisions, of communion with the community of nations, and appear to be setting aside their interests or, worse, humbly declare that they have heard the world community and at last accept the cosmopolitan call and recognize that American interests can really only be those of the rest of the world – as the rest of the world defines them.  Be very afraid.  Meek American multilateralism is really a signal that the United States has given up on the game.  Far preferable is a United States that robustly, brusquely, even rudely asserts its interests and cavalierly assumes that the rest of its allies and enough, at least, of their core interests will be carried in train: only then will one know for what the Americans are willing to expend blood and treasure, and whether it includes … France.  (I paraphrase my friend in a view that I have admittedly adopted as my own (updated).)

For a lovely short introduction to Aron’s Atlanticist thought, see this Bradley Lecture at AEI in 2005 by Financial Times columnist Christopher Caldwell.

ICC +1

by Kevin Jon Heller

The Czech Republic is set to become the 109th member of the ICC.  The lower house of the Czech parliament recently voted 140-6 in favor of ratifying the Rome Statute, which the country signed in 1999.  The upper house voted to ratify the Statute in July.

Kudos to the Czech Republic!

Is There a New Bush Doctrine?

by Julian Ku

It’s a little late in the Bush administration to be creating new foreign policy doctrines, but the NYT suggests that U.S. Defense Secretary Robert Gates did just that in his speech yesterday at the Carnegie Endowment.  According to the NYT, this is the key sentence is the most expansive articulation yet of the nuclear deterrence policy:


Today we also make clear that the United States will hold any state, terrorist group or other nonstate actor or individual fully accountable for supporting or enabling terrorist efforts to obtain or use weapons of mass destruction — whether by facilitating, financing or providing expertise or safe haven for such efforts,

I don’t really see anything radical here, but then again I haven’t been parsing this stuff as carefully as some folks.  I think that the NYT sees this as expanding deterrence and threats of military retaliation, not just against the states that use nukes against the US, but to any state that aids a terrorist group in obtaining nukes or WMDs

McCain Finally Finds a Winning Strategy

by Kevin Jon Heller

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Don’t Count Too Much on a New Bretton Woods

by Julian Ku

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Sure, some kind of important event will happen on November 4th involving the coronation of some guy named Barack, but international economic law geeks will have their eyes focused on a different date: November 15th.  On that day, G-20 industrial leaders will gather at the National Building Museum in Washington D.C. to try to come up with a global response to the global financial crisis.   Some of the leading participants, most notably French President Nicolas Sarkozy and UK Prime Minister Gordon Brown, are calling for this summit to serve as a second “Bretton Woods,” referring to the famous 1944 conference in Bretton Woods, New Hampshire credited with laying the groundwork for the post-war economic legal order. 

Bretton Woods itself has achieved a somewhat mythical status and I think that its impact is generally overstated,

Gitmo Cases Move Ahead in the Courts

by Deborah Pearlstein

While the Bush Administration may have reconciled itself to leaving office with the detention center at Guantanamo Bay still up and running, the U.S. federal courts continue pushing the detainees’ cases ahead toward resolution.  After briefing by the parties on their competing definitions of “enemy combatant,” U.S. District Judge Richard J. Leon yesterday announced a ruling…

Is this the “End of International Law”?

by Julian Ku

So asks Robert Dreyfuss of The Nation, in his interesting piece about the recent U.S. cross-border raids into Pakistan and Syria, with Iran looming (see this NYT article for background).  Dreyfuss is very worried about this doctrine, and suggests that its acceptance could result in the “end of international law.”  I wouldn’t go that far, but it is definitely a challenge to traditional norms of international law, although as I suggested here, the doctrine does have some pedigree in the Law of the Sea.  Supporters appear to have grafted a new element to the traditional “hot pursuit” doctrine: the idea that raiding a “failed”  or at least “failing” state that cannot maintain its sovereignty is more justifiable.  President Obama (yes, I’m trying to jinx him) may have a particular interest in this doctrine since raiding Pakistan was something he first raised a couple of years ago.

ICC Prosecutor to Pursue Case Against Darfuri Rebels

by Kevin Jon Heller

With all the attention being paid to the pending genocide charges against Bashir, the media has largely ignored Moreno-Ocampo’s recent announcement that he intends to seek an arrest warrant against rebel commanders in Darfur who are believed to be responsible for a vicious attack on AU peacekeepers in 2007:

“In a couple of weeks I will present my third case against some rebel commanders who were attacking African Union peacekeepers,” Moreno-Ocampo told a Council on Foreign Relations symposium, sponsored by Hollywood actors Angelina Jolie and Brad Pitt.

Moreno-Ocampo has been investigating a 2007 attack on an AU base in Haskanita, Darfur which killed 12 peacekeepers and was blamed on rebels. A U.N. report said vehicles used in the attack bore the initials “JEM,” which could have stood for the Justice and Equality Movement, a powerful rebel group.

Khalil Ibrahim, leader of the group, said in July that if any of his guerrillas was indicted they would be handed over to the international court for trial.

I confess that I’m conflicted about about Moreno-Ocampo’s plans…

Sex, Religion and Chewing Gum: Defining “Public Morals” Under the WTO

by Roger Alford

Article XX(a) of the GATT allows countries to violate WTO rules if doing so is “necessary to protect public morals.” The “public morals” exception is notoriously elusive, with only one WTO case—the US-Gambling Services case—clarifying the scope of the exception. So in a real sense we don’t really know when “public morals” can or cannot be invoked. According to the Panel report in that case, “the term ‘public morals’ denotes standards of right and wrong conduct maintained by or on behalf of a community or nation.” (Para. 6.465). Okay that really clears things up.

So if one cannot discern public morals based on WTO case law, how about analyzing what countries are actually doing. By good fortune, one of my students just finished working as an account manager at UPS and he informed me that the UPS website provides a handy service that identifies all “restricted or prohibited commodities” in every country in the world. From my perspective this list gives international trade scholars a pretty good sense of what type of products are prohibited in particular countries based on factors such as public morals.

Of course there are some political restrictions, such as a dozen Islamic countries that prohibit the importation of any Israeli products. And there are plenty of products one would expect to be restricted, such as alcohol, drugs, tobacco, weapons, etc. But beyond these categories there also were numerous other prohibited items that took me by surprise. Here is a sample of the kind of products that apparently offend public morals in different parts of the world:

Niger “Convicted” of Failing to Stop Slavery

by Julian Ku

 The Economic Community of West African States (ECOWAS) Community Court of Justice has found that the West African state of Niger has violated its obligations to protect its citizens for slavery.  Specifically, Niger failed to prevent  Hadijatou Mani, who was sold into slavery at the age of 12 in 1996 for about £300 and regularly beaten and sexually abused.  The Court awarded a judgment of 10 million CFA francs in damages, which is about $US 22,500.  

I’ll admit up front that I know very little about the ECOWAS Court, so I don’t know the basis for jurisdiction or even which treaty or norm Niger was held to have violated. Its not that I have any doubt that slavery is illegal under international law, it’s that it has been outlawed so many times in so many treaties, that it is hard to know which legal instrument to pick.If anyone has a link to an online version of the judgment, I’d be very appreciative.   

Slamhounds on My Trail…

by Chris Borgen

In honor of Ken, I wanted to post a quick heads-up to this post by Tom James at Futurismic, which has the excellent title “I, For One, Welcome Our New Robodog Overlords.”  Money quote:

According to Prof Steve Wright of Leeds Metropolitan University:

“What we have here are the beginnings of something designed to enable robots to hunt down humans like a pack of dogs. Once the software is perfected we can reasonably anticipate that they will become autonomous and become armed.

We can also expect such systems to be equipped with human detection and tracking devices including sensors which detect human breath and the radio waves associated with a human heart beat. These are technologies already developed.”

I don’t have a Stendahl quote for this, so I’ll close with the opening from William Gibson’s Count Zero, a sci-fi novel from twenty years ago which may prove all-too-prescient in this instance:

They set a slamhound on Turner’s trail in New Delhi, slotted it to his pheromones and the color of his hair. It caught up with him on a street called Chandni Chauk and came scrambling for his rented BMW through a forest of bare brown legs and pedicab tires. Its core was a kilogram of recrystallized hexogene and flaked TNT.

He didn’t see it coming. The last he saw of India was the pink stucco facade of a place called the Khush-Oil Hotel.

[I have no idea what recrystallized hexogene is, but it sure sounds nasty.]

Blackwater to Protect Somali Shipping Lanes

by Kevin Jon Heller

A couple of months ago, I blogged about the possibility that Blackwater would support the African Union’s peacekeeping mission in Darfur.  That hasn’t happened yet, but the company seems to have found another line of work — fighting pirates off the coast of Somalia:

Blackwater Worldwide and other private security firms — some with a reputation for being quick on the trigger in Iraq — are joining the battle against pirates plaguing one of the world’s most important shipping lanes off the coast of Somalia.

The growing interest among merchant fleets to hire their own firepower is encouraged by the U.S. Navy and represents a new and potential lucrative market for security firms scaling back operations in Iraq…

Nicholas Burns on Diplomatic Power: “We Should Talk to Our Enemies”

by Chris Borgen

Career diplomat Nicholas Burns has an essay in Newsweek on the whole “negotiate with adversaries” kerfuffle. (Yeah, I said “kerfuffle” because that’s about all it deserves.) He begins:

One of the sharpest and most telling differences on foreign policy between Barack Obama and John McCain is whether the United States should talk to difficult and disreputable leaders like Iran’s Mahmoud Ahmadinejad or Venezuela’s Hugo Chávez. In each of the three presidential debates, McCain belittled Obama as naive for arguing that America should be willing to negotiate with such adversaries. In the vice presidential debate, Sarah Palin went even further, accusing Obama of “bad judgment … that is dangerous,” an ironic charge given her own very modest foreign-policy credentials.

Are McCain and Palin correct that America should stonewall its foes? I lived this issue for 27 years as a career diplomat, serving both Republican and Democratic administrations. Maybe that’s why I’ve been struggling to find the real wisdom and logic in this Republican assault against Obama. I’ll bet that a poll of senior diplomats who have served presidents from Carter to Bush would reveal an overwhelming majority who agree with the following position: of course we should talk to difficult adversaries—when it is in our interest and at a time of our choosing.

The more challenging and pertinent question, especially for the McCain-Palin ticket, is the reverse: Is it really smart to declare we will never talk to such leaders?

Continue reading after the jump…

Sunday with Stendhal: The Spirit of Faction

by Kenneth Anderson

Sundays are a bit slow around OJ, so I thought I might offer (unless my confreres think it too far off topic) a series of indeterminate run, Sundays with Stendhal, featuring quotes from various works of the master.  Stendhal was a diplomat in much of his career, a figure of a transborder European elite culture, and is also a figure who crosses in European history the divide from the Napoleonic world into the genuinely modern world beginning in the 1840s.  It is true that I have a mild obsession with Stendhal.  It is also true that I am, and always will be, in love with Mathilde de la Mole, with whom my beloved wife J-M shares a great many traits. I first read The Red and the Black when I was fourteen or fifteen, the gift of a high school friend who was, like his parents, an unapologetic Stalinist and who despised the New Left in my California college hometown – but who believed in the value of the less-decadent works of the bourgeoisie. I have read The Red and Black at least every other year, and usually once a year, since age fifteen.  So.  That probably explains a lot.  But, in recognition of the election upcoming …:

‘I have a married sister in Provence; she is still pretty, good, gentle … well, as soon as she heard of the execution of Marshal Ney, she began to dance!’

‘Is it possible?’ said the horrified Julien.

‘It is the party spirit,’ replied Altamira, ‘the spirit of faction.’

(From chapter 39, The Ball, The Red and the Black.  I’ll stick in the original French, if I can figure out how to do the diacritical marks.)

Interviewer to Biden: Tell Me Why Obama Isn’t a Marxist

by Kevin Jon Heller

Take five minutes out of your busy day and watch this interview, which would be hysterical if it was a Saturday Night Live send-up of an interview by a conservative newscaster, but is just sad because it’s real.  Notice how little the interviewer — who is clearly animatronic and programmed by Powerline and Hugh Hewitt — knows about “socialism” and “Marxism.”

Hat-tip: Volokh Conspiracy.

Noncitizen Campaign Workers

by Peter Spiro

Over at the excellent polls/politics site FiveThirtyEight, Sean Quinn describes an Obama volunteer working doors in Virginia:

Back in Charlottesville, we encountered Alex Englehard, a German from Heidelberg pursuing his legal degree and on break after his fifth-year exams. Englehard, a dedicated full-time Obama volunteer, said many Americans “don’t realize how big an impact this one election has on the rest of the world.”

He reported getting a few scattered complaints that a foreign citizen would get involved in American elections, but that they all came from people who told him they were supporting McCain. Nobody brought it up the day we tagged along.

There’s no law against noncitizens working for political campaigns, and that presents a channel for noncitizen influence even though they lack the franchise.  This example is unusual; he’s not even a resident.  I wonder how many foreigners are working for campaigns this year.

Law School: The Recessionary Countercyle? Dark Thoughts from the Dismal Science on a Dreary Day in DC

by Kenneth Anderson

Even in the midst of crashing law school endowments, lowered giving, and so on, can we assume at least that law school itself is counter-cyclical to the economy overall?  When the economy tanks, is it true that students and recent grads take refuge in professional schools?  Here is some data from the LSAC that suggests yes, and that it is consistent with other recessions and economic downturns in the US.

From the standpoint of the schools, I wonder if it is accurate to suggest that the law schools that benefit most from the counter-cyclical upturn in applications are the mid to lower ranked schools, rather than the top schools.  The top schools, after all, benefit from fantastic amounts of alumni giving and the growth of endowment portfolios in the good times, but lose a chunk of that in the bad.  The mid to lower ranked schools, by contrast, do not have those levels of donation or endowment – and are that much more dependent upon tuition – which is supported or at least not eroded by the downturn.  Presumably the recession cuts into the rate of tuition increases, but I’m not sure whether that is really so much true past the first bad year.

Many schools look to foreign students as an important and increasing revenue stream as the baby boomlet gradually tapers off.  But the current recession is headed worldwide as we speak.  Europe, Latin America, the oil extraction countries, and now Asia – as US demand slumps – are all feeling the pinch.  In a genuinely global recession, will those student flows dwindle, at least for a couple of years?  Or will they, like their American counterparts, decide to double down on the professional school bet and leverage into the downturn?

The Provisional Measures Order in Georgia v. Russian Federation: Trying to Navigate Between Scylla and Charybdis

by Chris Borgen

Last week the ICJ issued an order for provisional measures  (pdf is here) in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) . This case, along with the recent referral to the ICJ for an advisory opinion on the status of Kosovo, are the latest cases arising out of secessionist conflicts that have come to the ICJ docket. Both cases present complex facts and will not only be important regarding the evolving jurisprudence and state practice concerning secession and self determination, but will also be important markers concerning the strengths and weaknesses of the ICJ.

The ICJ will have to also navigate between its desire for relevance and the risk of overstepping its mandate. It will not be an easy task…

Happy United Nations Day! What United Nations Day?

by Kenneth Anderson

Today, Friday, October 24, is United Nations Day.  If you are in the United States, however, your reaction is more likely to be – huh?  What United Nations Day?  This is not a feature of a right-wing blackout to prevent takeover by the ‘black helicopters’ – neither the New York Times nor the Washington Post mentioned it at all, at least in the A sections of the hard-copy papers.  I might have missed something in the last couple of days, but I don’t recall seeing anything earlier, either.  My anecdotal sense, to be perfectly blunt, is that even among elites, and among us international law elites, here in the United States, the UN is a combination of ever-so-slightly passe and a bit of an embarrassment.  Am I wrong about that?  Maybe, but not to judge by the media coverage.  But why the gap?

Friday News Flash: Obama Constitutionally Ineligible for Presidency! (Okay, Maybe Not)

by Peter Spiro

In a sign of increasing election-eve desperation on the Right, respectable Republicans (Andrew McCarthy, for one) appear now to be taking seriously the argument that Obama does not meet constitutional eligibility requirements for the presidency. Details after the jump.  Perhaps a clever tactic to divert attention away from John McCain’s own citizenship issues?  He’s got bigger problems than that! . . .

Naomi Watts to Play Landmines Nobel Prize Winner Jody Williams in Movie

by Kenneth Anderson

One further side note to the discussion of Roger’s article in Virginia journal on Nobel Prize winners … I see from some random Reuter’s story on Yahoo news that that actress Naomi Watts is considering signing up to play Jody Williams in a film on her life:


LOS ANGELES (Hollywood Reporter) – Naomi Watts is in negotiations to star in “My Name Is Jody Williams,” a drama based on the life of the Nobel Prize-winning campaigner against landmines….  Brash and somewhat controversial, Williams famously calledPresident Bill Clinton a “weenie” for not signing the land mine ban.  The Universal project will be written and directed by Audrey Wells (“Under the Tuscan Sun“).

I wonder how this sort of activity fits into norm entrepreneurship?  In the politics of the international ban campaign, people were of extremely mixed views on celebrity sponsorship and activism.  One the one hand, many people favored it – not precisely star-struck, though many of them were, but quite hard-headed about the advantages of celebrity attention.

Truth & Reconciliation, Spanish Style

by Duncan Hollis

I’m just back from 9 days in Madrid — my first visit, and it was great.  Of course, while there I couldn’t ignore the international law-related story of the day.  Judge Baltasar Garzón (of Pinochet, al Qaeda, and Eta fame) is at it again.  This time he’s agreed to open a criminal investigation into thousands of disappearances and executions surrounding Spain’s half-century old civil war.  It is a move that has some significant political support; it comes on the heels of recent legislative efforts to offer symbolic reparations to Republican victims of Franco-era atrocities. But Garzón’s inquiry has generated a firestorm of controversy in Spain, threatening the “pact of forgetting” that formed a pillar of the transition to democracy after Franco’s 1975 death.  On Monday, Javier Zaragoza, the National Court’s chief prosecutor, appealed Garzón’s move, arguing that it is barred by a 1977 amnesty law passed to help Spaniards put the war behind them.  Garzón, however, contends that since the crimes he’s investigating are crimes against humanity, no amnesty law can override the search for justice in such cases. 

I suspect that Spanish law will ultimately dictate how this case gets resolved (whether through some interpretation of the existing 1977 amensty law or through the application of a newly enacted law ala Chile and Pinochet).  But looking at it from an international perspective, a few interesting questions loom.

Progress on the Disclosure of Documents to Lubanga?

by Kevin Jon Heller

It appears that there may have been some progress regarding the Prosecutor’s ability to disclose the potentially exculpatory information to the defense — progress that is not reflected in yesterday’s decision.  According to a recent motion, the Prosecutor has received permission to turn over all of the disputed documents to the Trial Chamber in unredacted form, so that the judges can engage in an “unfettered review” of what information needs to disclosed to the defense.  If so, the odds that the Trial Chamber will lift the stay have improved considerably.

That said, problems remain. As the motion makes clear, the UN and the NGOs that have provided the 228 disputed documents have still not agreed to disclose all of the documents — or, more precisely, all of the documents the Trial Chamber ultimately concludes are discoverable — to the defense, whether in unredacted or redacted form.  The breakdown of the UN documents is as follows:

  • 135 of the 173 documents can be disclosed directly to the defense in unredacted form.
  • 35 of the 173 documents can be disclosed directly to the defense with redactions.
  • 3 of the 173 documents cannot be disclosed to the defense, directly or indirectly.

And here is the breakdown of the NGO documents:

  • None of the 55 documents can be disclosed to the defense in unredacted form.
  • 53 of the 55 documents can be disclosed to the defense in redacted or summarized form.
  • 2 of the 55 documents cannot be disclosed to the defense in any form.

As this point, we have no way to know whether letting the Trial Chamber review all of the documents in unredacted form will solve the problem. The overwhelming majority of the NGO documents still cannot be given to the defense in unredacted form, and the Prosecutor is recommending that 22 documents from one NGO be disclosed to the defense only in summary form.

There is also a cryptic paragraph in the motion (20) that says “[f]or the Trial Chamber’s information and ease of reference, the Prosecution — at this stage — can submit 19 NGO documents in redacted form, with redactions applied pursuant requests [sic] from the respective NGOs.”  That statement seems to contradict the Prosecutor’s assertion that it will provide the Trial Chamber with unredacted versions of all of the disputed documents.

Would the non-disclosure of five documents and the disclosure of more than 50 documents in redacted or summarized form satisfy the defendant’s right to receive all potentially exculpatory evidence?  It will depend on how critical the non-disclosable documents are and whether the Trial Chamber thinks the redacted or summarized versions of the other documents are an adequate substitute for the unredacted versions.  We will see.  Expect the defense to fight the issue — with justification — tooth and nail.

Bowoto v. Chevron Goes to Trial

by Roger Alford

One of the most important Alien Tort Statute cases has begun in California that will test the scope of corporate liability under international law. The facts are hotly disputed but either version is truly bizarre. Over 100 Nigerians seize a Chevron oil platform on May 25, 1998. Plaintiffs argue that it was a peaceful nonviolent act of civil disobedience. The Defendants argue that Chevron employees were being held hostage and some of the hijackers engaged in violence against employees. After a three day standoff, Chevron called the Nigerian Government Security Forces. The Nigerian military retake the platform and allegedly engage in various human rights violations against Bowoto and other protesters.

Bowoto sued Chevron under the ATS alleging, among other things, that Chevron through its subsidiary Chevron Nigerian Ltd., aided and abetted human rights abuses committed by the Nigerian military authorities, including torture and cruel and inhuman treatment. The attacks by the Nigerian authorities allegedly were with Chevron-leased helicopters and with the cooperation of a Chevron-crisis management team. Chevron alleges that it requested the Nigerian authorities to conduct the hostage rescue mission in a peaceful manner. The only protesters who were killed allegedly were attacking the military.

After numerous legal challenges a federal court in the Northern District of California dismissed all claims except for a few ATS claims. Obviously the case is fact intensive, and whether violations of international law occurred will depend on the jury’s factual determinations. According to one version, a corporation through its surrogate aided and abetted the death, torture, and inhumane treatment of innocent, peaceful protesters by military personnel acting in concert with Chevron employees. According to another version, the facts establish that a company simply reported criminal conduct where it was doing business and was seeking assistance from the government to help rescue its workers who were being held hostage.

It’s rare for ATS cases to get this far. I will try to update you as I hear of developments.

Sullivan on Blogging

by Peggy McGuinness

I have been a big fan of Andrew Sullivan’s writing for a couple of decades (since his TNR days), and have read his blog pretty regularly for the past four years.  He has an interesting essay up at The Atlantic’s newly redesigned site, “Why I Blog.” From the intro:

This form of instant and global self-publishing, made possible by technology widely available only for the past decade or so, allows for no retroactive editing (apart from fixing minor typos or small glitches) and removes from the act of writing any considered or lengthy review. It is the spontaneous expression of instant thought—impermanent beyond even the ephemera of daily journalism. It is accountable in immediate and unavoidable ways to readers and other bloggers, and linked via hypertext to continuously multiplying references and sources. Unlike any single piece of print journalism, its borders are extremely porous and its truth inherently transitory. The consequences of this for the act of writing are still sinking in.

Solo blogs are a different beast from group blogs; reported blogs different from academic blogs.  But the recognition that the medium changes the way we think and write   and the way we think about writing  applies to those of us who do this as a small part of a larger job just as much to those who blog full-time.  And for at least a few hours each week, we live within this world created by the blogosphere; not quite a conversation, but not quite deep reading either.

His video conversation with Marc Ambinder (a political reporter/blogger) on the subject of blogging is also worth watching. I would be interested to know how OJ readers view the world of blogs circa 2008.

Princeton LAPA Fellowship Deadline

by Peggy McGuinness

For interested readers, our friend and colleague Bobby Ahdieh sends along the following information about fellowships with the Princeton University Program in Law and Public Affairs.  The fellows program has typically hosted at least one or two public international law scholars (several of them are OJ alums!).  Past fellows rave about the experience — the time to focus on a longer project, the interdisciplinary approach to public law issues, and the opportunity to engage an audience beyond the legal community.  The deadline for applications for 2009-2010 academic year is November 3.  Here’s an excerpt from the website:

Princeton University’s Program in Law and Public Affairs (“LAPA”) explores the role of law in constituting politics, society, the economy and culture. LAPA participants are engaged in the study of law both in the present and over time, not only in the US, but also in countries around the world and across national borders. Each year, LAPA brings to Princeton a select group of residential fellows and occasional visitors drawn from the academy, legal practice, government, and policy-making institutions. They join a collection of professors on Princeton’s permanent faculty who draw upon diverse methodologies to investigate legal phenomena. By combining the multidisciplinary expertise of Princeton’s faculty with knowledge and perspectives provided by leading academic and practical experts on the law, the Program in Law and Public Affairs has created an exciting new forum for teaching and research about the legal technologies and institutions needed to address the complex problems of the new century.

Lubanga’s Release Gets a Step Closer — Maybe

by Kevin Jon Heller

The Lubanga fiasco continues.  Earlier today, the Appeals Chamber upheld the Trial Chamber’s indefinite stay of the proceedings, but refused to order his immediate release, instead remanding the case to the Trial Chamber for further consideration of the issue.

I have not had a chance to read the two — typically lengthy — decisions in any great detail, but these are the critical paragraphs from the decision on the stay, in which the Appeals Chamber points out that the Trial Chamber correctly concluded that there was “no prospect” of the exculpatory information being turned over to Lubanga any time soon:

90. Thus, by the time the Trial Chamber rendered the Impugned Decision – nine months after the issue had been first raised before the Trial Chamber and one week before the trial was due to start – it had become obvious that the assurances that the Prosecutor had given to the Chamber in October 2007, namely that the information providers were prepared to consent to the disclosure of the material in question, had proved to be wrong. The information providers were reluctant to consent to the disclosure of the material that they had provided and in spite of negotiations between the Prosecutor and the information providers, there had been only very limited results. The reaction of the providers to the Order of 3 April 2008 demonstrated that they would not consent to the disclosure of the material even to the Chamber, although some of the providers changed their position following the undertaking by the Trial Chamber at the status conference on 6 May 2008…

The Security Council Elections and Paul Kennedy’s Commentary

by Kenneth Anderson

Kennedy’s core argument is that the Security Council was framed to be a collection of great powers, in keeping with the understanding of the Charter’s drafters of what went wrong with the League of Nations in collective security.  This requirement was enshrined in the Charter itself:

The wording of Article 23, section 1, makes this clear when it states: “. . . due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization . . . .”

If the governments of the world wish to take those words seriously, they should pay no attention to some of the more preposterous campaigns being waged by a couple of this year’s Security Council wannabes. The most egregious of all is the bid by Iran; just how a country in defiance of Security Council resolutions can push for membership of that same body suggests either complete ignorance of, or great contempt for, the charter. In a rather different but equally silly way, there is the bid by Iceland. Actually, it is not its current state of national bankruptcy that should disqualify it from serious consideration. It is, rather, its obvious incapacity to contribute in a meaningful way to the maintenance of international security. Either you can do that, and are credible; or you can’t, and shouldn’t try to bid.

Kennedy notes – this is indeed highly relevant, as the Iraq war votes showed – that the “big boys,” the P5, are not entirely free to act on their own, because the procedural votes do include the non-permanent members.  It can matter whether those non-permanent members include, say, Iran.  Or Syria, to recall the President of the Security Council at the time of lead Iraq war votes…

John Bellinger Reflects on Four Years as Legal Adviser at State

by Kenneth Anderson

John Bellinger has been legal adviser to the State Department for the past four years.  In this speech to the International Law Weekend (October 17, 2008), he offers some reflections on his experience.  (We here at OJ were privileged to have John guest blog here in a unique and highly successful experiment in ‘blogging with the Legal Adviser’.)  I excerpt part of the speech below, and here is the link.  I will offer some thoughts of my own in a separate post; here let me just say that John is someone I know personally, a friend, and someone for whom I have enormous respect and admiration.  ( Excerpted is the opening section, setting out three goals for tenure as legal adviser.)

The Sudan Believes Bashir Is in the Clear!

by Kevin Jon Heller

Hope springs eternal in the Sudan — at least on the part of the government.  Apparently, Khartoum has managed to convince itself that the Pre-Trial Chamber’s recent request for additional information concerning the charges against Bashir means that it intends to dismiss those charges:

The Sudanese government hailed a decision by the judges of the International Criminal Court (ICC) requesting more information on the prosecutor’s request for an arrest warrant against president Omer Hassan Al-Bashir.

This week the judges of the Pre-Trial Chamber I which has officially started deliberating on the case against Al-Bashir earlier this month said in court documents that there are aspects of the ICC prosecutor’s application which require “additional supporting materials”.

The judges attached a confidential annex to their request which contained items for which the prosecutor is required to furnish extra documentation.

In mid-July the ICC’s prosecutor Luis Moreno- Ocampo filed 10 charges: three counts of genocide, five of crimes against humanity and two of murder and accused Al-Bashir of masterminding a campaign to get rid of the African tribes in Darfur; Fur, Masalit and Zaghawa.

An unidentified Sudanese official speaking to the daily Al-Sharq Al-Awsat published in London said that judges’ request “proves that Ocampo’s evidence is weak and fabricated and that Al-Bashir is innocent”.

The head of the Sudanese lawyers syndicate Fathi Khalil also said that the judges found that the evidence is non-compelling to build a case.

Khalil said that the prosecutor exceeded his mandate by the UN Security Council (UNSC) which did not find genocide being committed in Darfur.

Sudanese newspapers described the judges’ decision as an indication that Al-Bashir will be able to escape an arrest warrant.

It’s difficult to know where to begin with such silliness…

wronging rights blog

by Kevin Jon Heller

While I am on the subject of relatively new blogs, I have to confess that I’ve been remiss in plugging one of my favorites, wronging rights, the product of the brilliant and fiendish minds of Amanda Taub and Kate Cronin-Furman.  (For their “self-descriptions,” see here.)  I stand behind my description of the blog that they have kindly quoted on their website: “exceptionally well-written, and more amusing than a blog that focuses on various atrocities has any right to be.”  Take a look — you won’t be disappointed.

Addendum: Not to hijack Amanda and Kate’s post, but having mentioned wronging rights and Stop Genocide Blog today, I think it’s important to note how many international law bloggers are women: the two aforementioned blogs, our own Peggy and Deb, our wonderful colleagues at IntLawGrrls, and others.  There is, of course, always room (and need) for more.  But it’s great to be part of a discipline that to some extent bucks the general trend of women being underrepresented in blogging.

Stop Genocide Blog

by Kevin Jon Heller

Anyone interested in genocide issues would do well to check out the (relatively) new Stop Genocide Blog, a solo effort by the mysterious Michelle F. that is part of’s blog network.  It’s wonderfully written and follows Darfur, the DRC, and other situations much more closely than I do here.  Check it out!

What If We Held a Peace Summit But (Almost) Nobody Came?

by Kevin Jon Heller

That’s the situation with the Sudanese government’s latest contribution to the “peace” process:

The United States, Darfuri rebels and Sudanese opposition parties have greeted a new initiative to solve the Darfur crisis with scepticism and boycotts, while Khartoum, the Arab League and the UN say it’s the region’s best hope.

Widespread doubts about the credibility of the process prevail ahead of deliberations expected to last three days. “The purpose is not to solve the problem of Darfur but to give sanctuary to [President Omar al-] Bashir from the International Criminal Court (ICC),” said Bashir Adam Rahma, of the opposition Popular Congress Party, led by Hassan al-Turabi.


“The government lacks credibility because of the last five years,” said Alberto Fernandez, Chief of Mission at the United States embassy in the Sudanese capital Khartoum.

“There is doubt in the minds of many people – many of the people of Darfur, many of the refugees and others,” he said.

He also questioned whether displaced people had a voice at the discussion table. “The proof is going to be whether this event can be translated into real substantive change on the ground in Darfur as quickly as possible, or will it be the latest in a long line of political theatre that we have seen over the last five years in Darfur?”

Like the Popular Congress Party, all rebel groups have boycotted the initiative, calling it “a proposal aimed at defusing the row with the International Criminal Court”.

“Political theater” is an accurate description.  There is still no indication that the Sudanese government genuinely wants peace — nearly 40,000 people have been displaced in the last two months alone, largely as a result of fighting that began “when government troops attacked rebel-held areas along the border with Libya in northern Darfur — sometimes accompanied by aircraft and Arab militias.”  Indeed, Darfuri rebel groups have claimed, not without reason, that the latest round of fighting was designed to “clear them out of strategic areas to change the balance of power on the ground ahead of peace negotiations”…

Reconciliation and Development Bonds in South Africa – an Innovation in Development Finance

by Kenneth Anderson

For the last several years, I have been watching with fascination and admiration as my friend and Washington College of Law colleague, Daniel Bradlow, has been developing more or less from scratch an innovative tool in development finance for his native South Africa, what he has titled “Reconciliation and Development Bonds.”  Professor Bradlow heads the international legal studies program at WCL, which is attended by LLM and SJD students from around the world, including a significant number from sub-saharan Africa, partly through various scholarship programs.  (If I may say so, WCL has an extraordinary international legal studies program for students from abroad.)  He is also a leading expert in development finance, teaches a highly regarded course on the subject, and has long been an outside advisor to the African Development Bank, the World Bank, and other institutions on making development programs compatible with human rights, local needs, etc.

A couple of years back, Professor Bradlow began to pursue the idea of the sale of bonds that would be purchased by corporations that had business in South Africa, as well as ex-pats and emigres from South Africa, of whom there are many around the world.  The bonds would be used to fund development projects in South Africa.  They would, however, genuinely be bonds, repaid with a socially responsible investing subsidized rate of interest.  This has meant, of course, that not only must the bonds be structured carefully, most importantly there must be projects and a mechanism for choosing projects that can sustain the payments required under the bonds.  Professor Bradlow has been working out these mechanisms, spending much time back in South Africa over the last couple of years…

Notes on Professor Ring’s Article

by Kenneth Anderson

I apologize for arriving late to the party; I have only just had a chance to read Professor Ring’s fascinating article completely through.  There are many reasons why I would come to this article already predisposed to like it – I started out life as an international tax lawyer, for example, and I am also an unapologetic defender within the international law academy of robust democratic sovereignty.  Having read the actual article, I am impressed far beyond any tendencies to, um, ‘confirmation bias’.  It’s a terrific piece, well argued, and provocative.  I am going to simply put down some reactions, in no particular order and, this being the blogosphere, no particular overall argument in mind.  Just reactions.

A Response to Professors Brooks and Christians

by Diane Ring

Both Professor Brooks and Professor Christians have identified important strands and tensions in the consideration of international tax, sovereignty, global relations among states, and universal commitments to humanity.  Just reading their comments inspires me to continue researching these questions.  Their observations tap into two significant unresolved issues of international tax and international relations: (1) How should the reality of politics, power, and decision making affect our interpretation of political system design?  For example, if decisions depend on the accommodation, interaction, and power dynamics of a variety of interest groups and epistemic groups, and rely less on democratic debate – do we have a democracy?  Is it relevant?  What is the meaning of the state and its democratic structures in that world?  And (2) How do we assess and determine the nature and source of our duties and commitments to each other, whether between states, or among individuals generally?

Comment on Diane Ring’s Article

by Allison Christians

Professor Ring frames sovereignty as responsive to the basic relationship between people and government and thereby attempts to redeem the concept from its current status as “rhetorical camouflage” in tax policy debate.   Her analysis presents a timely and important contribution and reflects the growing attention among tax scholars to the reality that, as in other regulatory areas, decision making power in taxation is no longer lodged in the sovereign state but is increasingly shifting to national and transnational legal and epistemic networks.   Prof. Ring concludes that sovereignty provides some unique and vital connection between the governors and the governed, but I am more convinced by her analysis that sovereignty serves mostly as a reflexive shield against global legal pluralism.   Before we can determine the degree to which this shield is necessary or useful, we need to enhance our understanding about how much of what we consider to be domestic tax law derives in fact from national and transnational legal and non-legal regimes.

Comment on What’s at Stake in the Sovereignty Debate?

by Kimberley Brooks

Diane Ring’s piece is, to borrow an analogy from Al Purdy, one of Canada’s finest and most popular poets, like a good jazz combo:  it has a dominant unifying idea, tells a number of stories simultaneously, keeps a firm hand on the underlying themes, and allows each theme to echo through each story.  The dominant focus is the role of sovereignty claims in the area of international tax:  this story, particularly as it is told by Ring in this wonderfully rich, well-crafted piece, should be of interest not only to tax scholars, but also to international law scholars, international relations scholars, and scholars interested in international politics.

What’s at Stake in the Sovereignty Debate?: International Tax and the Nation-State

by Diane Ring

The international tax problems of today are typically beyond the scope of a single nation to solve. However, the prospect of multinational problem solving, often under the auspices of an international organization, unleashes objections grounded in sovereignty.  Despite widespread reliance on sovereignty arguments, little attention has been directed at what is meant by sovereignty and what place it has in international tax policy.  This article contends that a loss of tax sovereignty undermines both significant functional roles played by a nation-state (revenue and fiscal policy) and important normative governance values (accountability and democratic legitimacy).  Whether these limitations are severe enough to demand that a sovereign state recall its taxing powers from an international body (or not surrender them initially) depends on the nature of the powers in question and the necessity for a coordinated global response.

Further Reflections on the Nobel Effect

by Roger Alford

I appreciate the remarks of Ken, Greg, and Anne. Just a few quick thoughts by way of response. First, I like the way Greg and Anne describe the teleology of the Nobel Peace Prize. I think that is an accurate way to put it. There are undeniable themes that wax and wane in the history of the prize, and they are fairly consistent with the evolution of international law. Each period builds on the other, and slowly the edifice of international law took shape. Indeed, one of the reasons the Nobel Peace Prize has been accused of mission creep is because so much of the original agenda of the prize has been achieved.

Regarding the comment that the Pacifist Period and the Statesman Period are hard to distinguish from one another, I agree that the themes are largely similar during the two periods, but I do not agree that the periods are indistinguishable. The norms prohibiting offensive war and establishing a permanent international judiciary emerged during the Pacifist Period but cascaded during the Statesman period. Meanwhile the dream of the complete abolition of war died a painful death. And the Pacifist Period’s vision of interstate arbitration as the alternative to war was overtaken by the emergence of a permanent international judiciary during the Statesman Period. In addition, some norms, such as international human rights, only began to emerge with any force during the Statesman Period. In short, the life cycle of international norms transcends the specific periods, but history does reveal an undeniable shift in emphasis among Nobel Laureates in different periods.

Regarding the wisdom of using the label “entrepreneur” for a “norm emerger” like Bertha von Suttner, or a “norm cascader” like Frank Kellogg, or a “norm internalizer” like Desmond Tutu, I rather like the call for descriptive clarity you suggest. Different Laureates undoubtedly serve different purposes, and “entrepreneur” may be too generic a term to provide real explanatory value.

As for the question of who is the real entrepreneur, the Laureates or the Nobel Committee, it is a question that has not escaped my consideration. I think the answer is that both are entrepreneurs. I have no doubt that most Laureates are “norm entrepreneurs” with or without the prize. One can name dozens of individuals who have been effective entrepreneurs without the honor. But the power of the Nobel Committee to anoint someone with the honor of receiving the most prestigious prize in the world certainly empowers that person. As Desmond Tutu put it, as soon as he received the prize everything changed. He became an oracle of wisdom whose every word was received with awe, despite the fact that the words he spoke were the same before and after the prize. I have little doubt that the Nobel Committee is acutely aware of the impact its action have in promoting certain norms.

Turning to Ken’s comments regarding campaigns for the prize, I do not think that history has been unkind to the Nobel Committee in this regard. I have looked at the archives of nominations in Oslo and I have seen numerous “campaigns” that failed, including repeated nominations of individuals who deserved the prize, such as Mahatma Gandhi and Eleanor Roosevelt. In other cases, some Laureates have received the prize despite intensive campaigning for another candidate, such as the awards to the then-obscure Shirin Ebadi in 2003 and Wangari Maathi in 2004, despite the fact that everyone thought the aging Pope John Paul II was a shoe-in. And sometimes a “campaign” is necessary to highlight the life of a worthy candidate who has spent her life toiling in obscurity, as was the case with the BBC’s Malcolm Muggeride’s efforts to honor Mother Theresa.

As for Ken’s comment that an ill-timed prize can adversely effect the recipient, I agree. But Laureates recognize the moral authority that is placed upon them when receiving this prize, and by and large they admirably attempt to live up to the challenge. Sure there is fallout within an campaign when one leader is honored and another of equal stature is not. But I’m not sure how frequently that occurs. The counterexample to your illustration is the award to Muhammad Yunus and Grameen Bank, with the Yunus the undeniable leader of the microfinance movement. I would also add that ill-timed awards have been among the most controversial, such as the 1994 award to Yasser Arafat, Shimon Peres, and Yitzhak Rabin in the hopes that it would spur peace in the Middle East. I disagree with the notion that individuals or organizations engage in good works with the hopes of achieving the prize. Almost no one “deserves” the Nobel Peace Prize, and even the rare individuals who do sometimes don’t receive it. Only the most self-congratulatory organization or individual could actually believe that their deeds would merit such an honor.

Politicking the Nobel Prize – A Slightly Jaundiced Recollection

by Kenneth Anderson

I read Roger’s article with complete fascination – what a marvelous and painstaking research task! – and just wanted to add one practical comment about lobbying and the Nobel Prize.  I’ve been close to one Nobel Prize in my life, the 1997 prize to the international campaign to ban landmines (ICBL) and Jody Williams.  The experience has led me to two conclusions – first, that the making of Nobels is, like sausages, not for the witness of the faint of heart or the naively idealistic.  Second, I have some real questions as to the effect of the Nobel Prize, or at least a badly-timed Nobel Prize, on the cause advocated by prize winner.

Response to Roger Alford’s The Nobel Effect: Nobel Peace Prize Laureates as International Norm Entrepreneurs

by Gregory Gordon and Anne Kjelling

Professor Alford is to be congratulated on his insightful piece regarding the impact of the Nobel Peace Prize on the development of international law.  The article analyzes 20th Century global norm formation through the revelatory filter of Peace Prize history.  Professor Alford’s innovative take on that history gives the lie to any popular conception of the Peace Prize as an annual pacifist beauty contest decided according to ad hoc criteria.  Instead, it describes an almost teleological evolution of the Prize through five distinct Zeitgeist phases: a “Pacifist Period” (1901-1913) (during which Prize winners largely focused on outlawing war and establishing a global legal order relying on arbitration to settle disputes); a “Statesman Period” (1917-1938) (where more conservative honorees directed their efforts primarily toward institutionalizing the accomplishments of the first phase and began to focus on humanitarian issues); a “Humanitarian Period” (1944-1959) (whose winners concentrated more exclusively on humanitarian issues — such as developing the laws of war and helping refugees); a “Human Rights Period” (1960-1986) (where the work emphasis of the Laureates underscored the importance of international human rights law for the cause of peace); and a “Democracy Period” (1987-present) (where the predominate aim of recipients was to establish democratic institutions for the realization of peace).

The Nobel Effect: Nobel Peace Prize Laureates as International Norm Entrepreneurs

by Roger Alford

Everyone knows about the Nobel Peace Prize, but virtually no one studies it. We all assume that Nobel Laureates are influential, but seldom do we try to gauge that influence. My article does both, arguing that Nobel Peace Prize Laureates have been influential norm entrepreneurs who have dramatically shaped the face of modern international law.

The foundation for the article is a theory of international relations known as constructivism. Constructivism is a theory that posits the rather obvious point that state interests are not fixed but ever changing. It further posits that norm entrepreneurs play a significant role in the emergence, cascading, and internalization of international norms. There have been numerous articles that have provided support for this proposition, but to my knowledge no scholar has attempted to systematically analyze the history of modern international law from the perspective of constructivism. This article is the first step toward such an analysis.

In order to test the hypothesis, the article does two things. First, it tags every single Nobel Lecture ever delivered by a Nobel Peace Laureate and identifies every major topic addressed in every Nobel Lecture. This was no mean feat.

Second, the article systematically analyzes every single Nobel Peace Prize Laureate with an eye toward their contribution to the development of international law. It was one of the most enjoyable and difficult experiences of my professional life. What emerges is a clear and unequivocal picture: the story of international law is the story of hundreds of individuals and organizations who have slowly, patiently, and successfully built this edifice of the law of nations that appears so familiar to us today.

Commentary on James Hathaway’s Article

by David Kyle

Professor James Hathaway has adeptly exposed the Janus-faced agendas of the Trafficking and Smuggling Protocols, revealing a human rights deficit as the sum effect of these transnational codes.  At the core of his argument lies an assertion that stricter border controls and legal constraints on labor migrants and refugees codified in the protocols–under the guise of security concerns–lead to more slaves, overt claims of combating trafficking notwithstanding. In this brief commentary, I want to highlight how increased state restrictions on unauthorized human mobility lead to migrant and refugee smuggling, and more importantly, how this smuggling and wider migration industry, in turn, increases trafficking levels in a more subtle, indirect way than the ones describe in his article.

The Human Rights Quagmire of “Human Trafficking”

by James Hathaway

It is doubtful that the advent of the Trafficking Protocol deserves anything approaching the nearly unanimous support it has received from those committed to the promotion of international human rights. To the contrary, the Trafficking Protocol has enabled governments to hive off a tiny part of the global problem of slavery as the focus of international attention and resources, leaving the overwhelming majority of slaves to depend on largely irrelevant and ineffective supervisory structures. Governments invoked the Trafficking Protocol to recast the duty to end slavery as best pursued through antitrafficking efforts, allowing states to claim the moral high ground in the fight against slavery despite the irrelevance of the new commitments made to most slaves.

International Mediator Wins Nobel Peace Prize

by Roger Alford

This weekend the Nobel Peace Prize was awarded to Martti Ahtisaari for his role as an international mediator assisting in the resolution of international conflicts. The press release emphasized that throughout Ahtisaari’s life he has worked for peace and reconciliation, with particular emphasis on his work in Namibia, Indonesia, Kosovo, and Iraq. Compared to last year’s prize to Al Gore and IPCC, this year’s prize represents an extremely safe, uncontroversial, and some would say uninspired choice. But it also is one of those choices that honors an individual who works in the trenches to resolve conflicts, rather than inspires the international community with lofty words, breathtaking visions, or sacrificial deeds….

“Sudanese Arrest Militia Leader”

by Kevin Jon Heller

That’s the headline of today’s New York Times article about Ali Kushayb, the janjaweed militia leader who has been indicted by the ICC.  According to the article, the “[t]he move is widely being interpreted as a way for Sudan to improve its image abroad and attempt to head off the possible genocide prosecution of the country’s president, Omar Hassan al-Bashir.”

Honestly, could the newspaper engage in some actual reporting?  As Darfur watchers know — and as I was able to find in five seconds by searching for “Kushayb arrested months ago” using The Google — the Sudanese government has been claiming to have Kushayb in custody for nearly two years

Virginia Journal of International Law, Vol. 49-1: Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles recently published by VJIL in Vol. 49:1, available here. On Tuesday, James Hathaway, Dean of the Melbourne Law School, will discuss his article, The Human Rights Quagmire of “Human Trafficking”. Dean Hathaway’s article takes a critical look at the international community’s recent efforts to fight human trafficking through the Trafficking Protocol. Hathaway argues that the international fight against human trafficking is more fundamentally in tension with core human rights goals than has generally been recognized. Hathaway then examines the underlying reasons for the absence of meaningful and effective anti-human trafficking protections, highlighting the development and influences behind the current means employed and offers a perspective on a different approach without harmful externalities. Professor David Kyle of UC Davis will be the respondent. On Wednesday, Professor Roger Alford of Pepperdine University School of Law will discuss his article, The Nobel Effect: Nobel Peace Prize Laureates as International Norm Entrepreneurs. In his article, Professor Alford presents the history of modern international law from the perspective of the constructivist theory of international relations. His article applies the constructivist theory of international relations to argue that Nobel Peace Prize Laureates have been profoundly instrumental as norm entrepreneurs in the emergence, cascading, and internalization of international law norms. Professor Gregory Gordon of the University of North Dakota School of Law and Anne Kjelling, Head Librarian at the Norwegian Nobel Institute, will be the respondents. On Thursday, Professor Diane Ring of Boston College Law School will discuss her article, What’s at Stake in the Sovereignty Debate?: International Tax and the Nation-State. Professor Ring examines what precisely is meant by sovereignty and what place it has in international tax policy. Her article contends that a loss of sovereignty undermines both significant functional roles played by a nation-state (revenue and fiscal policy) and important normative governance values (accountability and democratic legitimacy). Professor Kimberly Brooks of McGill University and Professor Allison Christians of the University of Wisconsin Law School will be the respondents. We encourage you to join in the discussion online this week. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.

Bashir: Mass Rape in Darfur a “Myth”

by Kevin Jon Heller

Ladies and gentlemen, your peacemaker:

Al-Bashir who rarely gives interviews told the British Channel 4 News from Khartoum that rape claims are made up by Darfuri women.

“The women inside the camps are under the influence of the rebels and some are even relatives of the rebels. That’s why they make these claims” Al-Bashir said.

“We are fully convinced that no rape took place. It might have happened at an individual level, but this is a normal crime that can happen in any country in the world. Mass rape does not exist”.


Al-Bashir told Channel 4 that DNA tests can be performed on children who are born from women who claim to have been raped.

“There are scientific methods that can reveal who are the fathers of these children which are born” he said.

But the interviewer Lindsey Hilsum challenged him by asking “So you are going to take the DNA’s of all the Janjaweed”?

Al-Bashir responded by saying “You can bring the accused and take his DNA”.

Hilsum again asked the Sudanese president how the raped women would be able to know the names of militia members who sexually assaulted them to perform the DNA test on them.

Al-Bashir ended up saying that “these [rape claims] are all false allegations. It is not in the culture of the Darfuris. The Darfurian society does not have rape. It’s not in the tradition”.

No snarky commentary necessary.

Bashir’s “Committment” to Peace — and a Hidden Benefit of the ICC

by Kevin Jon Heller

The Christian Science Monitor ran an important story on Darfur a few days ago, detailing how Bashir is using the claim that his indictment will derail the peace process as a smokescreen for continuing to wage war against the Darfurians.  The title says it all — “Sudan Makes Case Abroad While Still Bombing Darfur”:

“How will the ICC hamper the peace process? What peace process?” asked one international observer in Darfur. “I don’t see anything happening.”

In fact, quite the opposite is true. Last month saw heavy fighting between government troops and rebel factions in North Darfur. Many of the areas targeted by the government were under control of the only rebel group to have made peace with the government in 2006, contrary to the agreement’s cease-fire. Tens of thousands of Darfuris are believed to have been displaced, many of them still hiding in the mountains afraid the bomb-dropping Antonov planes will return.

“The government has not even tried to implement the Darfur Peace Agreement. Not one move,” added the observer, who spoke on condition of anonymity. “Disarming Arab militias, for example? Quite the contrary, they started to give them more weapons and send them out again”…

Sir Eli Lauterpacht–An Oral History

by Duncan Hollis

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Sir Eli

 So, how much of a public international law wonk are you?  If, like me, you are fascinated not only by the structure and substance of international law, but also the personalities that helped shape it, then you need to check out this oral history done by the Squire Law Library of Cambridge University with Sir Elihu Lauterpacht QC.  There are six interviews from January to May 2008 that you can listen to (or read the transcripts here if you prefer) devoted to a variety of topics (e.g., Early Years, Professional Career, Scholarship, Personalities).  Obviously, Sir Eli’s own contributions to the practice and study of international law are enormous–he served as Australia’s legal adviser, founded the Lauterpacht center at Cambridge, and along the way appears to have litigated nearly every major ICJ case from Nottebohm to the Nuclear Test Case.  But, for me, the more fascinating parts of the interviews are the personal recollections–recounting the story of how his father–the giant of international law, Sir Hersh Lauterpacht–found his way into the field at the urging of Dr. (later Lord) McNair (who also apparently chided a young Sir Eli for literally wanting to have his cake and eat it too while having tea together at the Lauterpacht home).  Listeners will learn how Sir Eli and Sir Gerald Fitzmaurice shared a flat together for a brief period, or how a young Steve Schwebel and Sir Eli started a life-long friendship.  And, along the way, there’s mention of a vertiable who’s who of public international law from the last hundred years, including such luminaries as Waldock, Jenks, O’Connell, Jennings, McDougal, Lachs, and Weil. 

I’ve had the pleasure of meeting Sir Eli on two occasions–the first at the introduction of one of my own mentors, Monroe Leigh–and later as we worked together on the provisional measures phase of the Avena case.  I found him to be extraordinarily friendly and accessible, especially to someone just starting out in the field.  I’m glad to see Cambridge University has recognized the value of preserving some of his recollections for posterity.

The States Protect Immigrant Rights (Empirical Proof Supplied)

by Peter Spiro

Conventional wisdom would have that state and local regulation of immigration works against noncitizen interests.  A story like Hazleton’s (tinpot mayor making political hay out of undocumented immigration) makes for good copy, and it plays into the persistent liberal mindset that the federal government will better protect rights generally and immigrant rights particularly. Amazing how that survived even after the 1996 rout of immigration and welfare reform, in which immigrants took major hits. 

Now we have an important study from Cristina Rodriguez and the Migration Policy Institute demonstrating that immigrants actually fare pretty well in state capitals. . .

Nicholas Lemann in the New Yorker on the Foreign Policy Differences Between McCain and Obama

by Kenneth Anderson

The current issue of the New Yorker, week of October 13, 2008, special election issue, has a nice article,“Worlds Apart,” by Nicholas Lemann on the foreign policy differences between Obama and McCain – including a good discussion of each candidate’s foreign policy advisory team.  The article is worth reading for Lemann’s interviews with each candidate’s leading senior foreign policy people.  He describes the Obama team as something like the Microsoft or Google staffs – cool, assured, relaxed, competent, unflappable, and a complete sense of their own master of the universe-ness – and a complete sense of willingness to (coolly, competently, unflappably, relaxedly) tear the throats out of the opposition.  (I paraphrase, but not so very much.)

There’s a very nice reference to the wonderful Michael McFaul of Stanford (and, note, a Hoover Institution senior fellow), an Obama advisor who helped work out the campaign’s position on Georgia and Russia. 

But I was especially impressed with the description of Kori Schake, a McCain advisor, West Point professor, most recently Principal Deputy Director of the Policy Planning Staff at DOS, and also a Hoover fellow, with a new book out on foreign policy.  Schake, Lemann says, “might be plausibly cast as a heroine in a James Bond movie – the sort of character who speaks several languages and is also an Akido master.”  Absolutely. As someone privileged to know Professor Schake, I can confirm this. 

(The article is not yet online, alas.)

50 States Now Recognize Kosovo’s Independence

by Kevin Jon Heller

Serbia might want the ICJ to opine on the legality of Kosovo’s independence, but it seems that the horse is already out of the barn.  Even Macedonia and Montenegro have now recognized Kosovo, the latter particularly irking the Serbian government:

Montenegro’s announcement sparked outrage in Belgrade, which along with key ally Russia has been vehemently opposing the split. Serbia in a knee-jerk reaction said it was expelling the Montenegrin envoy.


“The government unanimously decided to recognise the republic of Kosovo,” Montenegrin Foreign Minister Milan Rocen said in Podgorica, adding that his country would establish full diplomatic relations with neighbouring Kosovo.


Serbian Foreign Minister Vuk Jeremic said Belgrade had “decided to inform Podgorica that the presence of its official representative in Belgrade is not welcome any more.”

Jeremic had earlier warned that such a decision by Montenegro would be a “stab in the back” for Serbia, as the two were tied up in a loose federation until a 2006 referendum that gave Podgorica independence.

To date, Kosovo’s independence has been recognized by 50 states, beginning with Afghanistan and Costa Rica and including nearly all of the EU and NATO.  That’s 48 more than the two states that have recognized the independence of Abkhazia and South Ossetia — Russia and Nicaragua.

Kingdom? Business Venture? Drunken Joke? All of the Above?

by Chris Borgen

I don’t even know where to begin with this one. I’ll let the BBC tell the story:

Comic actor Bolek Polivka is suing former business partner Tomas Harabis over the rights to the fictitious Wallachian Kingdom.

The [Czech] court must decide whether Mr Polivka is the true “king” of the fairy-tale realm…

Wallachia, as Tomas says, is real.

It is a mountainous region in the south-east corner of Moravia about the size of Luxembourg. It was settled over many centuries by migrating Romanian shepherds called Vlachs, herding their sheep westwards along the mighty Carpathian mountain range.

The Wallachian Kingdom is not real. It was founded by Tomas and a couple of friends as an elaborate practical joke.

But as practical jokes go, it has become very serious…

Sarah Palin’s Letter in Support of the Law of the Sea Convention

by Chris Borgen

Following up on Peter’s earlier post on the foreign policy views of Sarah Palin, I note this letter that she wrote in September 2007 to Senators Stevens and Murkowski expressing her “strong support” for the ratification of the UN Convention on the Law of the Sea (UNCLOS). She also seems to advocate the use of the International Tribunal for the Law of the Sea (ITLOS)  the Commission on the Limits of the Continental Shelf. [UPDATE: Thanks to John Noyes for his informative comment below which corrects my original supposition.]

Her support for UNCLOS seems to be primarily related to furthering U.S. oil and mineral claims in the Arctic Ocean:

If the U.S. does not ratify the convention, the opportunity to pursue our own claims to offshore areas in the Arctic Ocean might well be lost.

As a consequence, our rightful claims to hydrocarbons, minerals, and other natural resources could be ignored.

Governor Palin then writes in a later section:

However, as you know, ratification has been thwarted by a small group of senators concerned about the perceived loss of U.S. sovereignty. I believe quite the contrary is the case. If the U.S. does not ratify the convention, we will be denied access to the forum established by the international community to adjudicate claims to submerged lands in the arctic.

If I read this correctly…

[UPDATE #2: This post over at the Washington Note focuses on John McCain’s flip-flopping on UNCLOS and even includes an image capture of the questionairre he answered for the Iowa Christian Alliance in which he originally checked the space for “support” for the Law of the Sea Convention, then crossed it out and checked the space for “oppose.” Hat tip: John Boonstra of UN Dispatch.]

ICTR Criticizes Prosecutor for Failing to Disclose Exculpatory Evidence

by Kevin Jon Heller

What is it with international prosecutors and their duty to disclose exculpatory evidence?  First the ICC stays the Lubanga trial because of the Prosecutor’s abuse of Article 54.  And now the ICTR has had to formally reprimand its Prosecutor, Hassan Jallow, for failing to disclose exculpatory evidence in the high-profile Military II trial:

In their ruling dated September 22, 2008, the three-bench judges, led by Asoka de Silva (Sri Lanka), emphasized and reminded the Prosecution of “Its responsibility as ministers of justice to assist the Chamber discover the truth about the allegations in the indictment and to do justice to the international community, the victims and the accused.” Other members of the bench are Seon Ki Park (South Korea) and Taghrid Hikmet (Jordan)…


“The Prosecution must always exercise the highest standards of integrity and care in discharging its obligations,” the ruling underscored.

The Chamber also ordered each defence team within 14 days from the date of the decision, file motions to recall each identified prosecution witnesses or additional defence witnesses based on the statements for which the Prosecution has been found in violation of disclosure obligations.

According to the decision, among the materials which the Prosecution is compelled to disclose are three statements relevant to the disclosure of the files of the former Rwandese Patriotic Front (RPF) rebels in the killings of former Minister of Social Affairs Lando Ndasingwa and former President of the Constitutional Court, Joseph Kavaruganda, among others. These killings,according to the Chamber, are ascribed to the accused. The judges also ordered disclosure of 16 other statements relevant specifically to the case in question.

Actions like these are unaccepable, because they strike at the very heart of the defendant’s right to a fair trial. As the ICTY Appeals Chamber pointed out in Kordic and Cerkez, “[t]he prosecution is required to carry out these searches because of its superior access to material which may be exculpatory in character…. The prosecution’s obligation under Rule 68 is not a secondary one, to be complied with after everything else is done; it is as important as the obligation to prosecute.”

The ICC and ICTR seem increasingly willing to discipline prosecutors who fail to live to their obligations as “ministers of justice.”  That is a hopeful sign for international criminal justice as a whole.

General Assembly Asks ICJ for Advisory Opinion on Status of Kosovo

by Chris Borgen

By a vote of 77 for, 6 against, and 74 abstaining, the UN General Assembly has referred to the ICJ the following question:

Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?

The draft resolution submitted by Serbia is here.

According to the BBC, the US voted against the resolution, arguing that it was more political than legal, and most of the EU abstained.

I will post some preliminary thoughts on this later today.

Cases To Watch This Supreme Court Term

by Roger Alford

I have spent a fair bit of time the past couple days reviewing the Supreme Court’s docket for the upcoming term with an eye for any cases that might be of particular interest to our readers. Here is my list of the most important cases that are germane to our discipline. The big issues are (1) senior government officials’ immunity for detainee abuse; (2) the nexus between military exercises and endangered species; (3) the eligibility of the persecutor to claim asylum for fear of persecution; (4) the ability of terrorist victims to attach a judgment lien against Iranian assets; (5) the impact that a congressional apology for the overthrow of the Kingdom of Hawaii has on the rights of indigenous Hawaiians; and (6) whether uranium enrichment can be subject to an antidumping duty under our trade laws.

Prematurely Jumping From the Global Financial Crisis to the End of the World as We Know It

by Kenneth Anderson

So the financial crisis has definitively moved from being a Wall Street phenomenon featuring a certain amount of European schadenfreude to a global crisis in which European banks are just as involved as American ones … But the sheer breadth and depth of this financial crisis inevitably invites many apocalyptic and highly wrought comments arguing that events of such financial magnitude must surely be signals of deeper international political shifts.  American hegemony is finally ending, this is the rise of Asia or China, etc., etc.  But is it not just a little bit too early for sweeping geopolitical and historical interpretations?   Do we want to repeat, for example, Paul Kennedy’s embarrassment in 1987 when he predicted the end of American empire – a mere two years, as it turned out, before the fall of the Soviet empire and victory in the Cold War?  Might it be worth waiting, say, another couple of weeks before announcing the end of the American era and a sea-change in global hegemony?  (Welcome Instapunditeers, and please have a look around; we are a diverse group of international law professors who blog on many different topics from many perspectives, academic as well as political.  And thanks, Glenn, for the Instalanche!)

Obama in a (Global) Landslide!

by Kevin Jon Heller

Last month, I mentioned that a BBC survey found nearly global support for Obama over McCain.  Now check out this “global electoral college” map put together by the editors of The Economist, Sarah Palin’s favorite magazine:

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The lonely red country is, not suprisingly, Georgia.  And the only pink country appears to be Macedonia.

Hat-Tip: FP Passport.

Could the US Prosecute Ugandan Military Officials for Using Child Soldiers?

by Kevin Jon Heller

The Daily Monitor Online, the web presence of one of Uganda’s leading independent newspapers, has an interesting article today suggesting that the newly-enacted Child Soldiers Accountabilty Act could be used against senior officials in the Ugandan People’s Defence Force (UPDF) — the armed forces of Uganda — if they traveled to the US:

While no senior officer in the UPDF has hitherto been charged over the use of child soldiers in any court, international or local, former UN Secretary General Kofi Annan, in his 2003 -2006 reports to the Security Council, cited the LRA, UPDF, and local defence as groups that have violated the international law prohibiting the recruitment and use of child soldiers.

Mr Annan told the Security Council that more than 1,000 children were mobilised into local defence units in Kitgum, Pader and parts of Teso region in 2004, and as of late 2007 had not been released.

Already, at least one senior UPDF officer is believed to have been banned from traveling to the United States over the UPDF’s role in the plunder of mineral resources from the DR Congo in the late 1990s.

Daily Monitor could not reach Defence Minister, Dr Crispus Kiyonga, or the Chief of Defence Forces, Gen. Aronda Nyakairima for comment on the latest developments as their known telephones were switched off. However, Defence State Minister Ruth Nankabirwa said UPDF officers could not be shaken by the new law.

“We are not bothered by the new developments because no one has ascertained that we recruit child soldiers,” she said.

“These accusations are not new and we have challenged our accusers each time they make such allegations to come and we ascertain together whether there are child soldiers in our army but they have failed to show up. We challenge them once again to come and establish,” Ms Nankabirwa said in a telephone interview yesterday.

Ms Nankabirwa said the UPDF has instead been rescuing abductees who had been turned into child soldiers by the LRA and rehabilitating them.

Ms Nankabirwa has an interesting conception of “rehabilitation.”  According to the Coalition to Stop the Use of Child Soldiers, the UPDF is deeply involved in the child-soldier business…

Charli Carpenter on Battlefield Robots, Lawfare, and Norm Entrepreneurship

by Kenneth Anderson

Professor Charli Carpenter (of UMass Amherst Political Science Department) and I had a lovely conversation over the weekend about battlefield robots.  Well, actually it was an interview for a project of hers, so she let me do pretty much all the talking, which was lovely for me.  She has now posted some thoughts of her own, in two highly interesting, highly recommended (for that small chunk of the world interested in battlefield robotics and the law and ethics of war, anyway) posts at two different blog sites.  I talk a little about them in what follows here.  You don’t have to be interested in battlefield robots to be interested in these posts – they address very important fundamental questions in the laws of war and the norm entrepreneurs who try to influence them.

APA Prohibits Psychologists from Assisting Interrogations

by Kevin Jon Heller

It’s about time:

The American Psychological Association has notified President Bush of a significant change in the association’s policy that limits the roles of psychologists in certain unlawful detention settings where the human rights of detainees are violated.

The new policy is in response to actions that have occurred at the U.S. naval base at Guantanamo Bay, Cuba, and at so-called CIA black sites around the world.

“The effect of this new policy is to prohibit psychologists from any involvement in interrogations or any other operational procedures at detention sites that are in violation of the U.S. Constitution or international law (e.g., the Geneva Conventions and the U.N. Convention Against Torture),” says the letter, from APA President Alan E. Kazdin, PhD.

“In such unlawful detention settings, persons are deprived of basic human rights and legal protections, including the right to independent judicial review of their detention.”

The roles of psychologists at such sites would now be limited to working directly for the people being detained or for an independent third party working to protect human rights, or to providing treatment to military personnel.

The blanket prohibition represents a significant change of course for the APA.  Just last year, the Association rejected a similar policy, contenting itself with prohibiting its members from participating in interrogations involving a number of specific practices, such as sleep deprivation and forced nakedness.  Moreover, the new policy clearly remains controversial: the final vote was 8,792 in favor, 6,157 against.

The American Medical Assocation and the American Psychiatric Association also prohibit their members from being involved in interrogations.

Universal Jurisdiction in the US for Child Soldiers

by Kevin Jon Heller

It’s official.  President Bush has signed the Child Soldiers Accountability Act:

The Child Soldiers Accountability Act makes it a federal crime to recruit knowingly or to use soldiers under the age of 15 and permits the United States to prosecute any individual on US soil for the offense, even if the children were recruited or served as soldiers outside the United States. The law imposes penalties of up to 20 years, or up to life in prison if their action resulted in the child’s death. It also allows the United States to deport or deny entry to individuals who have knowingly recruited children as soldiers.

“The US is saying to the world that using child soldiers is a serious crime and that it will take action,” said Jo Becker, children’s rights advocate for Human Rights Watch. “Military commanders who use children can no longer come to the United States without the risk of ending up in jail.”

The legislation was introduced by Senator Richard Durbin of Illinois and adopted unanimously by both the US House of Representatives and the US Senate in September 2008.

The use of child soldiers is a global problem.  According to the Coalition to Stop the Use of Child Soldiers, tens of thousands of children were engaged in armed conflict all over the world between 2004 and 2007, fighting for both rebel groups and government forces in at least 18 countries: Afghanistan, Burma, Burundi, Central African Republic, Chad, Colombia, Cote d’Ivoire, Democratic Republic of Congo, India, Indonesia, Iraq, Occupied Palestinian Territories, Nepal, Philippines, Somalia, Sri Lanka, Sudan, Thailand and Uganda.

Kudos to Senator Durbin (D-IL) and Senator Tom Coburn (R-OK) — whom Human Rights Watch rather pettily fails to mention in its press release — for authoring the Act, and to President Bush for signing it.

Biden on Foreign Assistance in the VP Debate

by Kenneth Anderson

One small item in the Biden-Palin debate that has gone largely unremarked in the press is Senator Biden’s comment on the US commitment on foreign assistance.  From the CNN transcript:

IFILL:  […]  What promises — given the events of the week, the bailout plan, all of this, what promises have you and your campaigns made to the American people that you’re not going to be able to keep?

BIDEN: Well, the one thing we might have to slow down is a commitment we made to double foreign assistance. We’ll probably have to slow that down.

Prosecution: Detention as an Enemy Combatant Isn’t Really Detention

by Kevin Jon Heller

These people have no shame:

Pentagon prosecutors are asking a military judge to reverse himself and reassemble the jury that convicted Osama bin Laden’s driver at Guantánamo, seeking to overturn a sentence that could make the first war court convict eligible for release by New Year’s Eve.

At issue is a decision at the first U.S. war crimes tribunal since World War II by the judge, Navy Capt. Keith Allred, to award credit of 61 months and eight days for time already served to Salim Hamdan, 40, of Yemen.

Prosecutors claim in a six-page motion, filed Sept. 24 but still not made public on Friday, that military commissions judges aren’t entitled to grant credit for time served as “enemy combatants.”

Three military attorneys separately summarized its contents for The Miami Herald.

A military jury convicted Hamdan of providing material support for terrorism on Aug. 6. At the sentencing phase, the panel specifically asked Allred how much credit Hamdan would get for time served. Allred said he had awarded credit of 61 months and eight days, time the judge calculated Hamdan was in a different status than a run-of-the-mill enemy combatant.

The jury of five colonels and lieutenant colonels led by a U.S. Navy captain then issued a 66-month sentence and returned to their different duties in different services across the U.S. military.

”The prosecution believes the judge had no legal authority to grant the credit,” said Air Force Maj. Gail Crawford, a commissions spokesman. “As to remedy, they asked the judge to set aside the sentence, reassemble and reinstruct the panel and have them resume sentence deliberations.”

I can’t imagine that Judge Allred will buy the prosecution’s baseless argument.  The Judge did not credit Hamdan with all of the time that he spent in detention as an enemy combatant — only the time he spent after he was made eligible to be tried by a military commission.  By any reasonable standard, Hamdan was in pre-trial detention from that point on.

There is also no reason to believe that the prosecution would get a longer sentence if Judge Allred reversed himself.  The military jury clearly wanted Hamdan to serve only five additional months in detention — hence its question about the credit Hamdan would get for time served.  In all likelihood, therefore, it would simply re-sentence Hamdan to five months imprisonment after a new sentencing hearing.

Of course, the length of Hamdan’s sentence has little practical import.  As the article notes, “Bush administration detainee doctrine says that ‘enemy combatants’ can be held indefinitely, regardless of a conviction or acquittal at the war court.”

Guiora on Re-Evaluating Anticipatory Self-Defense: Is There a Role for the Judiciary?

by Chris Borgen

Two weeks ago I was in Houston for a conference at South Texas College of Law organized by Geoff Corn entitled Law, Ethics and the War on Terror (more on that in another post). While there I had the pleasure of meeting Amos Guiora. As many readers of this blog probably know, Amos teaches at S.J. Quinney College of Law, is a former lieutenant colonel in the Israeli Defense Force JAG Corps and blogs at National Security Advisors.

So, I am happy to note that Amos recently posted a new article on SSRN, Anticipatory Self-Defence and International Law – A Re-Evaluation. The article is published by the Journal of Conflict & Security Law. The abstract is as follows:

Traditional state v. state war is largely a relic. How then does a nation-state defend itself—preemptively—against an unseen enemy? Existing international law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Moreover, a couple of responses to this piece are also available on-line (subscription required to download these essays):

Muge Kinacioglu (Department of International Relations, Bilkent University, Turkey), A Response to Amos Guiora: Reassessing the Parameters of Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.

Tarcisio Gazzini (Faculty of Law, VU University, Amsterdam), A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors.

I think Amos’ article will be somewhat controversial to both the political Left and the Right: to the Left, for his defense of a conception of anticipatory self-defense and to the Right for his view that such decisions cannot be left to the Executive alone but should have a judicial check to avoid abuse of power. Controversial or not, this is a thought-provoking article that is well worth the read.

Upcoming International Law Conferences

by Peggy McGuinness

Friends and readers of Opinio Juris pass along the following conference announcements from Southern Methodist University/Dedman Law School (11/7: “The Rise of Transnational Networks”) and Washburn University Law School (11/13-14 “Rule of Law and the Global War on Terrorism: Detainees, Interrogations, and Military Commissions”).  They both look terrific (one even features a OJ blogger and several OJ alums!) so check them out if you can.  More details:

Sarah Palin, Local Foreign Policy Activist (Maybe Not)

by Peter Spiro

Sarah Palin in last night’s debate:

America is in a position to help. What I’ve done in my position to help, as the governor of a state that’s pretty rich in natural resources, we have a $40 billion investment fund, a savings fund called the Alaska Permanent Fund.

When I and others in the legislature found out we had some millions of dollars in Sudan, we called for divestment through legislation of those dollars to make sure we weren’t doing anything that would be seen as condoning the activities there in Darfur. That legislation hasn’t passed yet but it needs to because all of us, as individuals, and as humanitarians and as elected officials should do all we can to end those atrocities in that region of the world.

She’s not out on any legal limb with this, in the wake of last year’s federal legislation authorizing Darfur-related divestment.  Interesting nonethless, as evidence of how far down foreign policy activism has trickled.  If she gets it, everyone does!

Update: Andrew Sullivan says it’s not so!

More on her foreign policy experience after the jump (photos do not lie).

Can Your Adopted Chinese-Born Child Grow Up to Be President?

by Peter Spiro

I think so, even though it’s not obviously consistent with the requirement restricting presidential eligibility to “natural born” citizens.  I make the case in this essay, just posted as part of a symposium on McCain’s constitutional eligibility (in light of his Canal Zone birth) at the Michigan Law Review’s online First Impressions (with other contributions from Jack Chin, Larry Solum, Daniel Tokaji, and Stephen Sachs).  My argument: McCain has clearly been deemed eligible by a nonjudicial constitutional consensus (Jack’s powerful argument to the contrary notwithstanding), even before the prospect of President Palin created extreme circumstantial incentives for the result.  

The episode sets a precedent for relaxing the “natural born” threshold in other permutations, including those born abroad to nonmilitary US citizens (think Obama as born in Kenya); foreign adopted children of US citizens (not born citizens, but automatically naturalized upon adoption); and even the derivatively naturalized children of immigrant parents.  That’s the more likely route to chipping away at this silly qualification, not through the courts or through formal  constitutional amendment.