Archive for
November, 2008

Nigeria’s Slow Motion Civil War, International Law, and Multifaceted Conflicts

by Chris Borgen

While the attention of the international news is fixed on the Mumbai attacks, I just want to pause to note that there is a growing tide of sectarian violence in Nigeria, which has claimed another 300 lives in the past few days. The strife in Nigeria provides a window into the types of complex ongoing conflicts that combine ethnic tensions, religious disputes, and resource grabs. Moreover, as in the case of Nigeria, there may be multiple semi-independent conflicts within a single country. What, if anything, can international law contribute to resolving such conflicts…

Roundup of Views on Guantanamo

by Kenneth Anderson

Georgetown Security Law Brief blog has a super-useful roundup of what a wide variety of people have said about what to do about detainees at Guantanamo.  It goes backwards by date, with op eds, articles, blog posts, all sorts of stuff, including stuff from here at OJ.  If you want to know what the state of discussion is as of November 30, 2008 over Guantanamo, check it out.

Sundays with Stendhal 6: Stendhal on Thanksgiving

by Kenneth Anderson

Well, not really Stendhal on Thanksgiving.  Stendhal never visited the United States, but that did not inhibit him from expressing a great many opinions about the place (mostly negative observations in the ‘nation of shopkeepers’ vein), particularly in the entire chapter devoted to love in the United States in that curious book-length essay, On Love.   Stendhal was highly skeptical that so uncultured a culture as that of the United States was capable of Great Love – love of the kind in The Red and the Black or The Charterhouse of Parma.  Perhaps he was right.  The following quote below has always reminded me of Thanksgiving Day and Christmas – Jingle Bells – and so in that spirit:

In the Winter … American young people of both sexes drive about night and day over the snow in sleighs, gaily travelling distances of fifteen or twenty miles without anyone to chaperone them; and nothing untoward ever occurs.

Do we really think that ‘nothing untoward’ ever happened?  I suspect, rather, Much Untowardness, Gaiety, and Fun.  This was the culture, after all, that produced … “bundling.”  Still, a charming thought for Thanksgiving Weekend from a quintessential European snob.

A Genetic Map of Europe (and a Geopolitical Kicker)

by Chris Borgen

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Both pretty and pretty fascinating. See this post at Catholicgauze and this one at Gene Expression. Also, tdaxp relates this map to a deflation of Russian power.

CTLab Online Discussion of the Scientific Way of Warfare

by Kenneth Anderson

Further to Chris’s post below, I wanted to announce that Complex Terrain Lab will be hosting, in addition to the event just passed that Chris mentions, an online blog discussion of Antoine Bosquet’s The Scientific Way of Warfare, between Friday, December 5 and Monday, December 8.  It will feature a number of guest bloggers, including me, and, having read most of the book now, promises to be very interesting.  Feel free to check it out!

Is There Something Rotten in Denmark? Is Greenland About to Secede?

by Chris Borgen

Coming Anarchy has this post on the possibility of Greenland becoming an independent country, noting that

Greenland this week voted with a supermajority of more than 75% to receive greater autonomy from Denmark. This may even lead to independence for this enormous island of just 56,000 people.

For more on “arctic nationalism,” including recent events in the Faroe Islands, check out the posts at Coming Anarchy. (And, to pick up a line from CA, “What’s so bad about Denmark?”)

Fourth Generation Warfare and Feral Cities

by Chris Borgen

I just came across (a little late I’m afraid) this notice for a program that the Complex Terrain Lab had in London called “BattleSpaces: Feral Cities and the Scientific Way of Warfare.” The speakers were Geoff Manaugh of the excellent BLDGBLOG (he has a post on the event here) and Antoine Bousquet, lecturer on international relations at Birkbek College. The even description is intriguing:

Contemporary political discourse on armed violence and insecurity has been largely shaped by references to spatial knowledge, simulation, and control: “human terrain”, “urban clutter”, “terrorist sanctuaries”, “failed states”, “core-periphery”. The historical counterpoint to this is to be found in the key role the successive technologies of clock, engine, computer, and network have all played in spatializing the practice of warfare. In this context, what implications do “feral” Third World cities, “rogue” cities organized along non-Western ideas of urban space and infrastructure, and “wild” cities reclaimed by nature, have for the battlespaces of today and tomorrow?

Sounds like a combination of fourth generation warfare   and urban studies.  Hopefully, CTLab and BLDGBLOG will have further posts on this topic…

Edward Lucas: From Havel to Habermas… Central Europe’s Missing Political Philosophy

by Chris Borgen

Edward Lucas has an essay in The Economist on political philosophy and the (r)evolution of central and eastern European politics centered on 1989. His essay begins:

They gripped the world, but left political philosophers yawning. According to Jürgen Habermas, a German philosopher, the revolutions that overturned decades of totalitarian rule in central and eastern Europe in 1989 were marked by a “total lack of ideas that are either innovative or orientated towards the future”.

In a sense that was right. One of the most memorable images of the extraordinary “Velvet Revolution” in what was then Czechoslovakia in November 1989 was a map showing a ladder, reaching from the depths of central Europe up a cliff, to the heights of the western part of the continent. “Zpět do Evropy” it read: “Back to Europe”.

For millions of people behind the Iron Curtain, abstract political philosophy and grand schemes had brought nothing but trouble. Vaclav Havel, whom the revolution propelled into Prague Castle as president, said his dream was to live in a “small boring European country”.

But actually Mr Habermas is wrong: a revival of the spirit of 1989 is just what both old and new Europe need. A Czech-born scholar from Harvard, Paul Linden-Retek, has recently finished a fascinating philosophical comparison between Mr Habermas and Mr Havel…

The Linden-Retek paper is available in a link from here.

OJ Readers in Europe

by Kevin Jon Heller

I will be spending most of the next two months in Europe, with the following itinerary:

  • Vienna, December 7-17
  • Leuven, December 17-20
  • Vienna, December 20-26
  • Rome, December 26-January 1
  • Amsterdam/The Hague, January 1-February 1

If any OJ readers in those cities — students, academics, activists, etc. — would like to meet for coffee or a drink, please don’t hesitate to contact me: k [dot] heller [at] auckland [dot] ac [dot] nz.

Professor Martin Scheinin Responds to Ken re Administrative Detention

by Kenneth Anderson

(Professor Martin Scheinin, whose mission and report on the US and counterterrorism and human rights I discussed below, was kind enough to post a substantive response to my earlier post, “Try or Release.”  Particularly since I was quite critical of that report, let me move Professor’s Scheinin’s response up to its own post.  Apologies for not noticing it earlier – it was languishing in our comment moderation in-box until Peggy pointed it out to me.  And my thanks to Professor Scheinin for his substantive and gracious reply.  Ken) 

Martin Scheinin on Administrative Detention

After a public debate with Kenneth Anderson in Washington DC more than a year ago it comes a bit as a surprise how Anderson presents my views as a bulldozer approach. Let me start by expressing in a nutshell my understanding of what human rights law says about administrative detention …

“Treaty Signatory Split” Justifies Granting Certiorari

by Roger Alford

That’s the interesting argument raised in this cert. petition in Abbott v. Abbott.

Although certiorari is warranted based solely on the conflict among the federal courts of appeals, certiorari also should be granted because the Fifth Circuit’s holding conflicts with the interpretation overwhelmingly adopted by the foreign courts that have addressed this issue. In construing the terms of a treaty, “the opinions of our sister signatories [are] entitled to considerable weight.” Air France v. Saks, 470 U.S. 392, 404 (1985) (quotation omitted). But the Fifth Circuit effectively ignored th[is] virtual consensus….

Although I am skeptical about constitutional comparativism, I think the argument presented in Abbott deserves serious consideration. Considering the policy justifications for avoiding circuit splits, could one not argue that similar policies are implicated when a circuit court interprets a treaty provision inconsistent with the consensus understanding? Justice Scalia stated as much in his 2004 ASIL lecture:

When federal courts interpret a treaty to which the United States is a party, they should give considerable respect to the interpretation of the same treaty by the courts of other signatories. Otherwise the whole object of the treaty, which is to establish a single, agreed-upon regime governing the actions of all the signatories, will be frustrated. Thus, in a recent case [Olympic Airways v. Hussein] I dissented from a decision of the Court that rejected what seemed to me a perfectly reasonable (though not necessarily inevitable) interpretation of the Warsaw Convention that had been arrived at by the courts of two other signatories. “Foreign constructions,” I wrote, “are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently.”

So perhaps we will begin to see more petitions arguing, and the Supreme Court granting, certiorari based on a concern for “treaty signatory splits.”

Happy Thanksgiving Everyone

by Kenneth Anderson

I take Deborah’s point in our conversation below on the administrative detention point, and think she is probably being a little bit nicer to me than I deserve in suggesting that I am running together two things – law and policy.  Fair point, and although I might return to it sometime next year (if I can persuade myself to assign a research assistant to pull together the “what they said under Bush, what they said under Obama,” and see whether my impression has legs) – anyway, I’m going to leave this one for now, and wish everyone at Opinio Juris, contributors, guests, commentators, and our far flung readers, a Happy Thanksgiving.

I am going now to cook the turkey.

This consists, this year, of two turkey breasts, because I cannot deal with whole birds.  I have salted them overnight, and they are sitting in a mush of rum (please don’t tell J-R that I am cooking with the 23 year old stuff, but I don’t drink, so …), cinnamon, chipotle, nutmeg, vanilla, molasses, garlic, onion, ginger, sesame oil, prunes and dried apricots soaked in rum, anchovy paste, and olive oil – and drizzled with an Italian balsamic vinegar infused with chocolate and of a quality the which should really only be applied to fresh strawberries.

The weather is beautiful and I’ve decided to don my chef’s apron and … grill.

Taking Pirates Seriously

by Duncan Hollis

For the last few weeks, popular culture has become reaquainted with the less romantic side of piracy. (For the romantic side, picture my 2 year old running around my living room — yes, this Thanksgiving morning — dressed with eye patch, bandana, “puffy pants” and a plastic sword yelling “arrgh” at the top of his lungs.)   But, with seizures of Ukranian weapons ships and Saudi supertankers, piracy has become serious business once again. For an image of how serious, consider the fate of the Thai fisherman killed by an Indian navy vessel that engaged their ship thinking it was a pirate mother-ship, but which may have only been recently the victim of piracy itself. 

So, what to do?

Back to Ken on Administrative Detention

by Deborah Pearlstein

Thanks Ken. Let me try to clarify again. On one level, you’re quite right: many human rights advocates believe a new system of administrative detention – beyond the criminal law and beyond the Geneva regime – is not a good idea as a matter of policy. (I hasten to add many who are not human rights advocates think a new administrative detention regime is a bad idea as well.) Objecting to such a new regime on policy grounds is, of course, different from asserting that it is categorically prohibited as a matter of international human rights law. Now I hardly wish to defend, explain or criticize Professor Scheinin’s particular remarks; among other things, I wasn’t at the 2007 discussion you mention and haven’t seen a transcript. The relevant paragraph of the report you reprint on this question is almost entirely limited to the Guantanamo detainees. And where it is not (as I read it, only in the last sentence of the second paragraph), it seems to be taking a position on the applicability of existing international humanitarian law (the law of armed conflict). On that question – whether there is an ongoing armed conflict in Afghanistan – I’ll have to respectfully disagree. I believe there is. As you point out, not even the ICRC is likely to dissent here. As for the no doubt considered views of our friends at HRW, HRF, ACLU, and beyond, we’ll have to trust them as always to speak for themselves.

Industrial Policy at the United Nations

by Kenneth Anderson

Secretary General Ban Ki Moon has been criticized by some as being invisible, at least compared with his rock-star predecessor, Kofi Annan.  However, he has emerged as UN frontman for a new campaign from the UN for a plan for a simultaneous global jobs and economic recovery program together with green program.  The SG’s program is outlined in op-ed form here in this SF Chronicle piece, “We Need a Big Green Jobs Machine,” SFGate, Wednesday, November 26, 2008.  Global industrial policy?

Try or Release

by Kenneth Anderson

Thanks to Deborah for that thoughtful response re the administrative detention debate ongoing now … but I don’t think I agree, at least as to the idea that administrative detention has been considered an acceptable policy response among the human rights advocates and civil libertarians.  I should look and see whether ASIL posted video or a transcript of the Tillar House discussion in late 2007 between Professor Scheinin and me, but clearly I needed Deborah there to defend me.  It was a full house, with lots of aggressive and hostile journalists and lawyers and human rights and civil libertarians, and they were not there to entertain the possibility of administrative detention.

(Update: I’ll stick in here, not quite on topic, the link to Jack Goldsmith’s op ed today in the Washington Post, on the question of whether the Obama administration should be taking up new investigations, criminal or otherwise, related to CIA interrogations, detentions, and so forth. Jack Goldsmith, “No New Torture Probes,” Washington Post, Wednesday, November 26, 2008, A13.)

Whatever Happened to Law Firms Going Public?

by Kenneth Anderson

As a follow-up to Peggy’s very interesting post below on the performance of global versus non-global law firms, let me raise an issue that has, for obvious reasons, disappeared in the last year, but which was a topic of discussion in 2007 and might well re-surface at point in the future: law firms going public via an IPO and listing themselves on a stock exchange.  The first firm worldwide to do so was in Australia, Slater & Gordon, a class action personal injury firm, in May 2007.  Its IPO price was  AUD 1.00, rose to 1.40 in the first days after the offering, and is currently at AUD 1.35.

Ken’s Question on Administrative Detention and Human Rights

by Deborah Pearlstein

With apologies for arriving late to the helpful Hakimi-Waxman-Anderson exchange, I thought it worth noting the apparent consensus on at least one position I, too, share: there is no categorical international law prohibition on “administrative” (or otherwise non-criminal) detention.  Indeed, I’m not sure I could name a human rights or humanitarian law scholar I know who thinks otherwise (though it’s entirely possible I just don’t get around enough).

Do Global Law Firms do Better than National Law Firms?

by Peggy McGuinness

Michael Goldhaber at the Amlaw Daily is unconvinced.  Drawing from some of the data discussed at last week’s ASIL-Harvard Law School conference on Globalization of the Legal Profession, Golhaber summarizes the presentations at HLS, crunches the numbers, and looks at the dangers lurking (or already arrived) for firms staking their futures on emerging markets:

James Jones, who chairs the Hildebrandt Institute, cited Citi Private Bank data from earlier this year, drawn from about seventy law firms that do their banking with Citi. These data for the first time show that global law firms (which they define as firms with at least a quarter of their lawyers outside their home jurisdiction) were outperforming their rivals. However, as Jones admitted, as the meltdown goes global, it may only be a matter of time before the data shows every firm bottoming out.

We’re with Jones on his afterthought. If one thing has emerged in the past month, it is that emerging markets will not save the world economy. We don’t mean to be a rude guest, but two institutions that have learned that lesson hard are Harvard University (whose endowment has lost big emerging market bets) and Citigroup Inc. . . .

Why the Creation of the ICC Does Not Support Goldsmith and Posner’s Thesis

by Kevin Jon Heller

In the Wall Street Journal editorial Ken mentions below, Goldsmith and Posner argue — in defense of their thesis that Europeans ignore international law if it is not in their interest to obey it — that “when nations led by Europe created the International Criminal Court (ICC), they purported to limit the Security Council’s power to delay or halt ICC trials, also in disregard of the U.N. Charter, which states that Charter obligations trump the requirements of any other treaty.”  That argument misunderstands both the ICC and the UN Charter. Goldsmith and Posner seem to be referring to Article 103 of the Charter, which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”   As numerous scholars have pointed out, however, the ICC is not a “Member of the United Nations”; it is an independent international organization with a legal personality that is distinct from the legal personality of the Member States that created it. The Security Council thus has no authority to interfere with the ICC beyond the authority specifically given to it by Article 16 of the Rome Statute — in which case the Security Council’s limited ability to “delay or halt ICC trials” is in no way “in disregard of” Article 103…

New Essay on SSRN — “The Rome Statute in Comparative Perspective”

by Kevin Jon Heller

I have posted a new essay on SSRN, a draft chapter of a book that Markus Dubber and I are editing for Stanford University Press entitled “The Handbook of Comparative Criminal Law.”   In addition to my chapter, which is something of an outlier, the book contains 17 chapters on the substantive criminal law of individual countries.  We have attempted to include a wide variety of national legal systems, including (inter alia) Argentina, Japan, China, Russia, India, Iran, Spain, Egypt, and South Africa.

Here is the abstract of my chapter…

ICC Architecture Competition

by Kevin Jon Heller

The ICC has been holding a competition to determine which architecture firm will build the Court’s permanent home.  Yesterday, the jury selected three winners.  Here they are, from first place to third place…

Reply to Professor Bartow

by Bret Boyce

I thank Professor Bartow for taking the time to respond to my article, but I am deeply disappointed that she has chosen to misrepresent many of its principal arguments, attacking me for statements I did not make and for opinions I do not hold. My article is a comparative study of constitutional obscenity jurisprudence in the United States and Canada. Prof. Bartow begins her critique by complaining that I should have written about international rather than comparative law: “Although this article was published in a forum dedicated to international law, as [sic] it does not discuss international law at all. There are many salient aspects of international law the author could have engaged with, particularly related to sex trafficking . . . . But since part of his goal was to dismiss harms associated with pornography production, he ignored them.”

The article was published in the Yale Journal of International Law, which, notwithstanding its title, is a forum devoted to comparative as well as international law. It examines the doctrine of obscenity, which criminalizes expression even in the absence of harm. My goal was not “to dismiss harms associated with pornography production.” For example, with regard to pornographic films, I wrote: “Certainly the use of coercion to produce such materials is a heinous crime. But coercive acts and materials produced thereby may be suppressed without resort to the doctrine of obscenity.” (p. 365) Trafficking, battering, rape and murder should be punished as such, and pornographic materials produced without the consent of the participants should be suppressed. But I reject the obscenity doctrine, because it permits the “criminalization of materials produced by and for consenting adults.” (p. 302)

Jack Goldsmith and Eric Posner in WSJ on Europe and International Law

by Kenneth Anderson

Jack Goldsmith and Eric Posner have an interesting op-ed in today’s Wall Street Journal (November 25, 2008), “Does Europe Believe in International Law?”  I believe it is behind the subscriber wall, but it offers a series of instances in which, in effect, it says Europe says one thing and does another ….

(Update:  Let me add a bit of fuel on the fire … see this brand new article, Sabrina Safrin, “The Un-exceptionalism of US Exceptionalism,” 41 Vanderbilt Int’l LJ 1307 (November 2008), and this bit from footnote 79 (I’ve put the abstract in the full post):  

The dearth of scholarship on European unilateralism reflects the perception of Europe’s multilateralism. See supra note 10 and accompanying text. Not only did the search conducted on Amazon.com on July 12, 2007 reveal, as mentioned earlier, not a single book with “European unilateralism” in its title, it identified only seven works addressing the topic at all. By contrast, the search unearthed 356 books and papers containing as a key term “American unilateralism.” 

Response by Professor Ann Bartow, “Obscenity and Community Standards”

by Ann Bartow

I was asked to respond to Bret Boyce’s recent article, published in the Yale Journal of International Law and entitled “Obscenity and Community Standards.” My one sentence summary of his thesis is this: Pornography is private sexual expression with which legislatures and courts should not interfere. Although this article was published in a forum dedicated to international law, it doesn’t discuss international law at all. There are many salient aspects of international law the author could have engaged with, particularly related to sex trafficking, which is profoundly linked to pornography production as well as prostitution. But since part of his goal was to dismiss harms associated with pornography production, he ignored them. Catharine MacKinnon has drawn these important connections in Pornography as Trafficking, a chapter in her recent book: are women human? And Other International Dialogues.

The article would have benefited from clear definition of what Boyce means by censorship. Throughout the piece, he conflates erotica, pornography, and obscenity without differentiating between works that do not require the direct participation of human performers, such as written material, and works that clearly do, such as films of people engaging in sexual acts. Efforts to address the harms inflicted on people during pornography production apply only to the second category of works, so the distinction is important.

Nor does he analytically distinguish between words and pictures. But the federal government often does. The most censorious law the U.S. government has successfully implemented in recent years, the Children’s Internet Protection Act, restricts its reach to “any picture, image, graphic image file, or other visual depiction” that is harmful to minors. Sociologist and researcher Diana Russell noted almost a decade ago that proponents of the anti-pornography-equals-censorship school deliberately obfuscate any distinction between erotica and pornography, and Boyce adopts this tactic.

Boyce critiques Canadian obscenity law in some detail, which I will not address beyond noting that he distorts the positions held by Catharine MacKinnon and Andrea Dworkin. I am mostly in accord with many of Boyce’s general criticisms of U.S. obscenity law, which track to a surprising extent some of the objections Catharine MacKinnon raised over a decade ago in her essay Not a Moral Issue (published in her book Feminism Unmodified, and in Applications of Feminist Legal Theory to Women’s Lives by D. Kelly Weisberg). I agree that the concept of obscenity as a legal construct is far too ambiguous to be a legitimate or just basis for criminal sanctions or civil liability. I also agree that it is highly unlikely that a judge or jury could fairly and consistently delineate a defensible description of “community standards.” And I certainly agree that obscenity law has been used against women, sometimes in contexts such as dissemination of information about birth control, and the breastfeeding of babies in public. I don’t know a single feminist legal theorist who embraces obscenity law or the Miller test as effective or just mechanisms to regulate pornography. Catharine MacKinnon explained:

Bret Boyce, “Obscenity and Community Standards”

by Bret Boyce

 

In this article, I present a comparative study of constitutional obscenity doctrine in the United States and Canada, and argue that the community standards test that has long been the touchstone of this jurisprudence cannot be reconciled with fundamental principles of freedom of expression and conscience. 

 

In the United States, the imposition of community standards of morality is at odds with the U.S. Supreme Court’s increasingly explicit rejection of mere majoritarian morality as a basis for criminal regulation, especially in the private sexual sphere.  Moreover, the Court’s embrace of local standards was always constitutionally anomalous and is increasingly so in the internet age. 

 

The Supreme Court of Canada has tried to develop an alternative approach, insisting on a national standard grounded not in morality but in harm, especially harm to women.  However, this national standard is largely a fiction, and the claim that whatever the community does not tolerate is by definition harmful is both theoretically and empirically untenable.  The Canadian Court has implicitly recognized these difficulties in a recent decision that appears to jettison the community standards test altogether, and to focus purely on the question of harm caused by “degrading” and “dehumanizing” materials.  It is not clear, however, that this new approach rescues the doctrine from the vagueness that has led in practice to repressive and discriminatory enforcement, which, ironically, has been targeted especially against gays, lesbians, and feminists. 

 

Both the U.S. and Canadian experiences thus suggest that the obscenity prosecutions have been arbitrary and highly political.  The article concludes that the prohibition of obscenity is incompatible with free expression, whether such prohibition is based on community standards, or on the harms that are said to flow from “degrading” and “dehumanizing” material.  Bans on sexually explicit materials that involve only consenting adults in their production and distribution cannot be justified in societies committed to the freedom of speech and conscience.

 

You can read the entire article here.

A Super-Practical Question re Administrative Detention and Human Rights Law

by Kenneth Anderson

My congratulations to Professor Hakimi on a very intelligent article, with which I am largely in sympathy, and also to Matt Waxman for his response.  I’m on the fly, without access to documents or the ability to search the web, so forgive the broad brush nature of this comment and question, but let me put it anyway (I’m depending on memory of reading the article, as well as a couple of other things, so feel free to correct me where I have got things wrong).

My difficulty with Professor Hakimi’s proposal is not very much with its substance, but instead lies in a sort of public choice issue:  What I have suggested above frames the question of detention as one in which the US establishes such a system under its domestic law, somehow obtains constitutional clearance for it from the two political branches and the judiciary, and establishes to the satisfaction of the competent authorities within the US constitutional system that it has met its international law obligations.  But the crucial question is whether, instead, a system of administrative detention based substantively and in the first instance upon international human rights law, its fundamental grounding, invites a shift in what I have elsewhere called “who owns” international law.  Does determination of the system’s lawfulness depend upon US courts taking international law into interpretive account?  Or does it shift “ownership” of the determination and interpretation to international bodies, such as the UN Human Rights Council, special rapporteurs, tribunals of one kind or another, or NGOs, that have a completely different view of human rights obligations …

Reply to Professor Waxman

by Monica Hakimi

Thanks to Matt for his very thoughtful comments. I agree with almost all of them, so will take this opportunity to amplify on some of the issues he raises.

First, Matt “wonder[s] whether administrative detention is so underdeveloped, or so expansive a concept, that it doesn’t make sense to think of it as a single model at all.” I agree with Matt that the parameters of lawful administrative detention are now underdeveloped. Human rights instruments generally require detaining states: (1) to prescribe in advance the permissible bases for detention and to follow their own laws; (2) to inform the detainee of the reasons for detention; (3) to afford him the opportunity for judicial review; and (4) not to detain arbitrarily. (The framework under the European Convention on Human Rights is more restrictive; instead of prohibiting arbitrary detentions, it prohibits detentions not falling into one of the specified categories.) Based on that formulation, international actors have long accepted that security-based administrative detention is sometimes lawful, but they have failed to provide much guidance on when and under what circumstances it is.

One of my arguments, then, is that the law in this area must be developed in order for it to fill the void for a sustainable detention regime in the fight against terrorism. Even if the law is developed, however, Matt is correct that it would—and, in my view, should—leave some room for state variance. Such variance is not new to human rights law and would not negate the existence of any international legal standard. But it would suggest that a state’s compliance with the international standard be assessed in light of the precise contours of the system it implements.

For instance, I argue that the procedural requirement for judicial review should be understood to mandate prompt, fair, and meaningful review; and that meaningfulness denotes at least three things. First, the reviewing body must have the authority to order the detainee’s release if it determines that detention is unauthorized. Second, the detainee must be equipped to participate in that process and to pursue his rights within it. (That almost certainly requires legal counsel or some other form of independent representation.) Third, the detainee must be informed of the factual basis for detention and be given a genuine opportunity to respond. Even if the international standard on judicial review is developed along those lines, however, states would have some discretion on how best to implement it within their domestic legal systems. In other words, the standard would continue to permit some variance, and whether a particular detention scheme satisfies the standard would be assessed on the facts. Yet, in my view, that variance would not by itself demonstrate a lack of cohesion in the concept of administrative detention.

Second, Matt implores us to focus on the substantive standard for detention. I couldn’t agree more. The standard of non-arbitrariness has been interpreted (outside the security context) to prohibit detentions unless reasonably necessary to satisfy a legitimate government interest. That standard is meaningless in the security context. All governments have a legitimate interest in protecting against serious threats to national security, and the determination that a threat renders detention necessary generally cannot be reviewed by international bodies. I suggest in my piece that security-based detention should be lawful (i.e., not arbitrary) only where the detainee himself poses a serious security threat, where detention is necessary to contain that threat, and where detention is calibrated to last no longer than necessary. Moreover, I argue that the security interests that may justify detention (e.g., disrupting ongoing terrorist activity or developing a more considered criminal case) give way, over time, to the liberty interests against detention. I thus suggest containing the duration of detention by requiring states to satisfy increasingly stringent evidentiary standards if they seek to hold suspects beyond incrementally set periods. After a certain period, all or almost all detainees should be released, deported, or criminally prosecuted. I underscore, however, that I intend for those suggestions only to begin the conversation. I very much appreciate recent efforts—including by Matt—to address in greater depth the appropriate substantive standard for detention.

Finally, Matt asks the difficult policy question of whether states should implement systems of administrative detention. I myself am torn on that question. Nevertheless, I do think it must be answered cognizant of the alternatives. What are the alternatives to a better regulated system of administrative detention? One may be expanding domestic criminal law in ways that contaminate the justice system. Another may be hamstringing state officials against preventing terrorist attacks. Still other, even less palatable alternatives are apparent in state practice: Several western democracies have “dealt with” non-battlefield terrorism suspects by participating in U.S. detentions based on the law of armed conflict; deporting terrorism suspects, despite the risk of home-country mistreatment; and detaining administratively without meaningful controls. If those are the alternatives, then a regulated system of administrative detention may well make sense.

Reponse by Professor Matthew Waxman, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.”

by Matthew Waxman

I thank YJIL and Opinio Juris for the opportunity to comment on Monica Hakimi’s article, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.” Monica’s important paper will contribute to a raging debate likely to grow more intense as President-elect Obama moves to shut down Guantanamo and put U.S. detention policy on sounder legal footing.

One of its contributions to the detention law debate is methodological, and especially its focus on state practice. The article’s analysis faces familiar methodological challenges of measuring and assessing state practice – what exactly should we look to in determining the strength of opinio juris, when is state practice law-breaking rather than law-making, etc.—but its effort to look beyond broad pronouncements and investigate state behavior casts doubt on claims that international law is settled and clear with respect to administrative detention for security purposes.

Another contribution is in reframing a bipolarized debate – law of war versus criminal law – into a tripolar one, adding administrative detention, though here I think the point should be taken further. Monica states that the administrative detention model is underdeveloped and proposes some substantive and procedural standards to help fill it in. But I wonder whether administrative detention is so underdeveloped, or so expansive a concept, that it doesn’t make sense to think of it as a single model at all.

Consider the many dimensions along which administrative terrorist detention proposals or examples vary: robust judicial review versus deference to military judgments; short-term versus long-term; one-time challenge versus periodic review; regular civilian judges versus special courts or military panels; right to counsel of choice versus special advocates; full discovery versus secrecy provisions. While it is tempting to think of administrative detention as lying between the criminal and law-of-war models, depending on how these matters are resolved, an administrative system can be even less liberty-protective than traditional battlefield hearings or more liberty-protective than criminal prosecution (a point Monica makes on p. 409). And these are just variations of procedural or institutional design.

I’d like to hear more discussion about substantive questions of administrative detention law. Monica is quite right when she says:

The availability of meaningful legal process is critical because, unlike traditional combatants, terrorists operate by blending into the general population, and any counterterrorism detention regime thus is likely to target a relatively high number of innocents—persons who are suspected of posing a threat but in fact do not (p. 408).

How protective is even the most robust legal process, though, if substantive constraints are defined loosely? Take proof burdens: how strong a case must the government establish? Judicial review and fully-assisted adversarial process won’t solve the false positive problem if the state need only establish its case by, say, preponderance of evidence. Or take the substantive grounds upon which administrative detention may be justified. Even requiring proof beyond reasonable doubt is little protection to innocents or those unlikely to actually commit terrorism if the substantive criteria for detention are defined very broadly (e.g. for “state security” or “supporting terrorism”), much as very expansive material support criminal liability could net many individuals who aren’t very threatening or morally culpable.

I’ve tried to analyze the standard of proof issue here, looking to the law of targeting as a framework from which to draw standards. I’ve also tried to analyze the questions of “why detain?” and “detain whom?” here, arguing that the answers to those questions are at least as determinative of security-liberty balances and consequences as are choices of procedural or institutional design.

Implicit in Monica’s analysis is a similar conclusion. Taking up her challenge to develop coherent standards, I hope to see more discussion of substantive issues such as for what specific purpose might administrative detention be legitimate or illegitimate, and, accordingly, by what substantive criteria should individual detention decisions be judged.

To some these may seem like easy questions: administrative detention is to prevent terrorism, so detain those likely to commit terrorism—duh. Not so fast, though. Monica explains that “[l]ike detention under the law of armed conflict, administrative detention is preventative. Its focus is on incapacitating persons who pose a future security threat….” (p. 388). But detention could be thought to serve the goals of prevention in a number of ways, including putting out of action those believed to be highly dangerous, incapacitating (or deterring) those who—while perhaps not directly participating in plots—indirectly support or facilitate terrorism, disrupting imminent attacks, or facilitating the interrogation of those likely to have information about terrorist planning. And depending on the specific purpose, administrative detention decisions might be based on prior terrorist behavior, expressions of future intent, suspected involvement in specific plots, indications of knowledge, etc. Some of these options seem less legitimate and more prone to error, abuse or overuse than others. As I’ve tried to argue here, just as the merits or dangers of administrative detention schemes depend on their specific procedural characteristics, so too do they depend on the substantive choices or how broadly or narrowly these substantive nets are cast.

I began by noting that Obama’s intentions to close Guantanamo will ignite further debate about the appropriateness of administrative detention, since that will be one option – among a range of all difficult ones – for getting there (see here). As Monica’s paper shows, it would be incorrect to cast this as a debate about whether to cross the administrative detention rubicon. That threshold has been crossed already, by some coalition partners and (though not addressed in Monica’s paper) in other domestic legal contexts. The issue is whether to expand its use, and if so not just according to what procedural constraints but what substantive constraints – recognizing that any new administrative detention expansions to deal with national security threats are especially prone to manipulation and overuse and likely to be viewed as discriminatory by communities whose trust we need to earn. If Monica is right, that some administrative terrorist detention schemes are legally viable, this still leaves open an enormous strategic policy question with potentially dire consequences on both sides.

Monica Hakimi, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.”

by Monica Hakimi

Thanks to Opinio Juris for hosting this symposium. I read the blog regularly so know to expect a lively and interesting discussion.

 

My article addresses the international legal rules for detaining “non-battlefield terrorism suspects”—i.e., suspected terrorists not captured on a conventional battlefield or in the theater of combat. Despite the extensive literature on the rules that govern the “war on terror,” and on the treatment of detainees in particular, there continues to be significant confusion about when, and under what conditions, a state may lawfully detain non-battlefield terrorism suspects. On those questions, two broad strands of thought have emerged. One asserts that the law of armed conflict governs to permit extended detention with minimal legal process; the other claims that human-rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand tracks international practice. Rather than uniformly adopting one approach or the other—the armed conflict approach or an exclusively criminal one—international actors have been groping for new options. International practice demonstrates that states (and particularly western democracies that take seriously their human rights obligations but also face a real threat from transnational terrorism) perceive an occasional but serious need to detain non-battlefield suspects outside the criminal process. In the absence of a clear legal framework for satisfying that need, these states have resorted to a variety of ad hoc or uncontrolled measures.

 

Based on a review of that practice, I argue that the global fight against terrorism should not be characterized as an armed conflict for purposes of application of a detention regime under the law of armed conflict, but that the reflexive rejoinder—if the law of armed conflict does not apply, then the criminal law must—is mistaken. The criminal law is an important tool for detaining terrorism suspects, but human rights law also recognizes that, even in peacetime, states may detain persons who threaten their security outside the criminal process and instead through calibrated systems of administrative detention. Moreover, administrative detention may better balance the liberty and security interests at stake in the context of particular terrorism suspects. In order for administrative detention to fill the void for a sustainable detention regime, however, its parameters must be better defined. My article thus begins the project of refining the international law on administrative detention, as it applies in the fight against terrorism. The purpose of this project is twofold: to inhibit states from detaining unnecessarily or through uncontrolled and ad hoc measures; and to enable states to detain based on a lawful template that satisfies their legitimate security needs.

Yes, Academic Standards Are Slipping…

by Kevin Jon Heller

The University of Auckland magazine recently published a copy of the university’s 1918 final exam in public international law.  I have only the vaguest recollection of the exam I took, but I it wasn’t this hard.  (Exhibit A: I didn’t fail.)  Have academic standards really declined so precipitously?

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How would you fare, readers?

Yale Journal of International Law, Vol. 33-2: Online Symposium

by Editors of the Yale Journal of International Law

The Yale Journal of International Law (YJIL), one of the world’s leading journals of international and comparative law, is pleased to continue its partnership with Opinio Juris in this second online symposium. This week, we will be featuring two Articles published by YJIL in Vol. 33-2, both of which are available here. Thank you to Peggy McGuinness and the other moderators of Opinio Juris for hosting this discussion!

Today, Monica Hakimi (University of Michigan Law School) will discuss her Article, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide. Hakimi’s Article examines the question of when and how international law permits a state to detain suspected terrorists away from a theater of combat. After identifying the shortcomings of the traditional armed conflict and criminal paradigms for understanding states’ detention authorities, Hakimi develops a third model—administrative detention under international human rights law—and identifies the policy considerations that should inform this new system to ensure that it satisfies states’ security needs while also inhibiting states from undertaking unnecessary or abusive detentions. Matthew Waxman (Columbia Law School) will be the respondent.

On Tuesday, Bret Boyce (University of Detroit Mercy School of Law) will discuss his Article, Obscenity and Community Standards. Boyce’s Article presents a comparative study of constitutional obscenity doctrine in the United States and Canada and concludes that the “community standards” test—long the touchstone of obscenity jurisprudence—cannot be reconciled with the fundamental principles of freedom of expression and conscience. Ann M. Bartow (University of South Carolina School of Law) will be the respondent.

We hope that you will join us this week for what is sure to be a vigorous and thought-provoking debate!

Sundays with Stendhal 5: Stendhal on Blogging

by Kenneth Anderson

‘The Marquis does not like bloggers, I warn you; it is his one antipathy,’ the Abbe Pirard said to Julien.  ‘Know Latin, Greek if you can, the history of the Egyptians, of the Persians, and so forth; he will honour you and protect you as a scholar.  But do not go and post a single page in French, especially upon grave subjects that are above your position in society; he would call you a blogger and take a dislike to you.  What, living in a great nobleman’s mansion, don’t you know the Duc de Castries’s saying about d’Alembert and Rousseau: “That sort of fellow wishes to blog about everything, and has not a thousand crowns a year”?’

(The Red and the Black, part 2, chapter 34, “The Hotel de la Mole.”  ‘Scribber’ in the original, but close in spirit, yes?)

Complementarity in Uganda

by Kevin Jon Heller

The Institute for War & Peace Reporting has an interesting report today on the Ugandan government’s efforts to prosecute Kony and other LRA members in a special domestic court.  According to the IWPR’s report, the problem is not the lack of political will, but the potential retroactivity of the legislation necessary to make the Rome Statute’s core crimes — war crimes, crimes against humanity, and genocide — punishable under domestic Ugandan law:

ICC judges will examine the cases against the rebel Lord’s Resistance Army, LRA, suspects to determine if they should go ahead, as well as to decide if they can be prosecuted in Uganda’s proposed special court – which was reportedly established after LRA leader Joseph Kony refused to face trial in The Hague.

However, analysts point out that Uganda’s lack of legislation to prosecute war crimes is a clear obstacle to putting Kony and his men on trial in the country.

At the centre of the matter lies a bill that has been languishing in Uganda’s parliament since 2004. The legislation proposes to make the crimes of the Rome Statute – which underpins the rules of the ICC – punishable under Ugandan law. If passed, it would allow the country to prosecute war crimes and crimes against humanity, including genocide…

Thank You to Mary Ellen O’Connell

by Chris Borgen

On behalf of all of us at Opinio Juris I would like to thank  Mary Ellen O’Connell having joined us this week in our second Oxford University Press/ Opinio Juris book symposium for a discussion of  her new book, The Power and Purpose of International Law. 

We would also like to thank Beth Simmons for joining us as a guest commentor.

Thanks also to everyone who posted comments and contributed to the dialogue.  We’ll post the details of our next book discussion soon.

How Not to Wage a PR Offensive

by Kevin Jon Heller

Anyone who still doubts that the ICC’s pursuit of Bashir is unnerving the Sudanese government should take a gander at this article:

An interview with published by Sudan official news agency (SUNA) with British Foreign Secretary David Miliband yesterday is fabricated, according to a statement by the British embassy in Khartoum.

“The statements that SUNA news agency attributed to the Foreign Secretary David Miliband on November 19 are completely inaccurate” the embassy spokesperson said in a statement.

“The Foreign Secretary did not give any interview to SUNA. Nor did he speak about Sudan in the terms described during his recent visit to Damascus” the spokesperson added.

SUNA’s reporter in Damascus quoted Miliband as saying in an interview that London and Paris are working together to introduce a UN Security Council (UNSC) resolution deferring International Criminal Court (ICC) indictment of Sudanese president Omer Hassan Al-Bashir.

“The UK supports the international efforts undertaken in the UNSC aiming to suspend a decision by the International Criminal Court (ICC) to Sudanese president Omer Hassan Al-Bashir for another year” Sudan’s state agency quoted Miliband.

“We realize that these international measures will not solve the crisis but will complicate it even further and may be put the future of peace in Sudan on the brink of collapse” he added.

But the British embassy stressed that UK policy regarding on the ICC is “unchanged”.

I’m not sure what’s more pathetic: fabricating a foreign official’s statement or thinking that you’d get away with it.  Either way, it’s clear that Bashir is becoming increasingly desperate to stave off his indictment.  Perhaps he knows something we don’t?

Daniel Bradlow on How Africa Should Respond to the Financial Crisis

by Kenneth Anderson

My friend and colleague Daniel Bradlow, professor of law and director of the international legal studies program at Washington College of Law, as well as SARCHI professor of development law and African economic relations at the University of Pretoria, has a new short opinion essay on how Africa should respond to the global financial crisis and the deliberations of the G20.  I will put up my own views on the financial crisis and the developing world and, particularly, the World Bank and IMF in all this, but I wanted now to bring Professor Bradlow’s piece to the international law professor community.  Those of us who work in international development and law discover that we do not cross-connect very much with public international law scholarship – something I would like to remedy in a small way here at Opinio Juris.  Professor Bradlow:

Binding on All States All of the Time

by Mary Ellen O'Connell

The power of international law comes from our belief in it and the purposes it serves: the promotion of peace, human rights, prosperity and the natural environment. Beth Simmons in her thoughtful and well-written post suggests that we need empirical evidence of this belief. There is, however, plenty of evidence—indeed, the evidence is overwhelming, if not categorized and precisely quantified.

We know that government officials and officials of international organizations accept international law as binding law because we see it in their actions—agreeing to 50,000 treaties, membership in thousands of international organizations, participation in 200 cases at the ICJ and PCIJ, in thousands of cases in human rights courts, in mediation, negotiation, and arbitration over ever possible right or claim relevant to states—and all in terms of international law. And these officials know there are sanctions for violating international law.

If you were to ask the proverbial man on the street whether he has human rights or his country has inviolable national borders—most would say yes and know these are legal rights from beyond the state itself. One of the ironies of the “realism” of political science is that all this reality does not fit their paradigm so they ignore it…

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

by Duncan Hollis

As was widely reported, the United States and Iraqi negotiators (finally!) concluded negotiations last week by signing the text of a U.S.-Iraq Status of Forces Agreement (SOFA).  Both sides now need to go through their respective domestic approval processes before exchanging the necessary notifications to bring the SOFA into force.  In Iraq, that process includes parliamentary approval, which is not a slam dunk if yesterday’s parliamentary brawl is any indication.  In the United States, the path appears a bit easier, although there’s still tension between the Executive Branch, which is insisting it can conclude the SOFA as a sole-executive agreement, and various members of Congress who insist the SOFA’s more unusual provisions require legislative involvement. 

As I noted a few weeks back, the threshold problem on the U.S. side is the information deficit, given executive reluctance to fully share the text publicly and perhaps even with Congress directly (there are news reports of classified briefings to Congress, and perhaps the text has been provided to certain committees or the leadership, but I’ve yet to see evidence that the document is available to members of Congress generally).  Of course, the Case Act requires the White House to report the whole agreement to Congress within 60 days of its conclusion, whether publicly or in classified form.  At that point though, it will already be an international obligation of the United States.  What’s more, the two sides reportedly signed a separate Strategic Framework Agreement at the same time as the SOFA signing.  This is likely a political commitment, which means, among other things, there’s no obligation to report it under the Case Act.  And I’ve found no one who can tell me what this Strategic Framework Agreement actually says, other than it purportedly would, according to Ambassador Ryan Crocker, “define the countries’ ties for years.” 

For readers interested in getting into the weeds here, McClatchy has an English translation that purports to be from a leaked Arabic version of the SOFA.  I haven’t had time to peruse it closely, but would like to start a comment thread so readers can offer their thoughts about the international and domestic legal implications of the SOFA text.  I’d also welcome more information on the Strategic Framework Agreement, especially whether it contains the security commitments and assurances originally envisioned when this process started a year ago

Hat-Tip:  World Politics Review Blog

Judging the “Power” of International Law

by Beth Simmons

What will it take to engage in a constructive debate about the power and limits of international law in international affairs? One answer is a book like Mary Ellen O’Connell’s, which makes a compelling case that not only scholars but laypersons and decision makers should think deeply before they disparage the international legal system in its entirety. Mary Ellen’s book is a frontal attack on the contention that there is no way to enforce international law. On the contrary, she shows, there is a range of options, from collective measures to unilateral measures to judicial approaches, international and local. Indeed, the roots of these enforcement mechanisms run especially deep, as her historical account well shows. The bottom of this study is that the existence of sanctions, which come in many forms and with careful delimitations – themselves illustrate the seriousness with which actors across the world take international legal obligations and embrace “the power and purpose of international law.”

Mary Ellen’s book is an antidote to a line of thinking with a long pedigree, but which has been well-captured recently in Jack Goldsmith and Eric Posner’s The Limits of International Law. The danger (Mary Ellen does not disguise her concerns in this regard) is that arguments about international law’s weaknesses can and have been used to justify its circumvention and denigration in the conduct of some states’ foreign policies. Her strategy is to bolster international law by demonstrating that the international community has devised rules for the appropriate sanctioning of law breaking. This is what all communities – domestic and international – when they value rules. The elaboration of these rules over the centuries is evidence that the international community values peace, security, prosperity, respect for human rights, and protection of the natural environment, and wants law to advance these common goals.

One question that comes to mind is how can we evaluate the claims that are made in this book…

Joel Trachtman on The Economic Structure of International Law

by Duncan Hollis

Back in 2005 when Jack Goldsmith and Eric Posner published their book, The Limits of International Law, they garnered a lot of attention for promoting the application of rational choice theory to international law (IL), and, equally importantly, suggesting that this method showed IL to have much less influence than conventional wisdom suggested.  And the critics and commentators came out of the woodwork.  Georgia had a symposium on the book (contributions are listed here); AEI had a panel discussion with a slightly different bent; not to mention the dozens of book reviews written in response.

The reaction might lead one to believe that rational choice theory and IL-proponents are doomed to conflicting positions.  Not so, says Joel Trachtman, who has a new book out, The Economic Structure of International Law (Harv. Univ. Press, 2008).

The Prophetic Tradition of International Law and My Concerns About the Book’s Manichaeism

by Kenneth Anderson

The Power and Purpose of International Law stands in what we might call “the prophetic tradition of international law.”  It has a long pedigree; nearly all of the theorists of international law praised in Mary Ellen’s book are not just moral idealists about international law – Grotius or Henkin or even (in that peculiarly dialectical way, as Mary Ellen very ably explains) a presumptive legal positivist like Kelsen – they are all evangelizers and prophets.  They, like Mary Ellen, do not just invoke a transcendental premise as a philosophical device, but offer an immanent critique of a fallen and sinful world of lawless sovereign states gradually coming into a state of lawfulness under a natural moral order.  They do battle with a long list of skeptics, realists, cynics, doubters, that includes everyone from Hobbes to Machiavelli to Carl Schmitt and, as it turns out, Jack Goldsmith and Eric Posner.  

I am not a realist, and I must therefore confess to a deep concern that The Power and Purpose of International Law so thoroughly incorporates natural law into the prophetic tradition that it leaves no daylight between them – and, so far as I can tell, no room remaining within natural law, for someone like me …  For someone like me, a natural law idealist in some suitably loose form, this evangelizing zeal has no attraction whatsoever, and even less so the book’s manichaeism, the division of the world into good guys of international law and bad guys.  Natural law is not the exactly the same thing as prophetic immanent critique; it is possible to hold a far more pluralistic – I am tempted to say ‘polytheistic’ – view of it than The Power and Purpose of International Law seems willing to permit.  More than once it seemed to me that the title of this erudite and scholarly, yet deeply impassioned, important book might well have been, ‘The Monotheism of International Law’.  

For out of Zion shall go forth the law, and the word of the Lord from Jerusalem.

The Role of Natural Law as a Source For International Law

by Roger Alford

Within the context of our roles as part of a research group at Princeton’s Center for Theological Inquiry, Mary Ellen and I have had many wonderful conversations about natural law as a source for international law. My sense is we both share the view that natural law could be such a source, and we have discussed various instances in which that might occur. Let me briefly summarize the three most obvious possibilities.

First, natural law might be relevant to identify and define jus cogens norms. Second, natural law might be relevant to identify and define crimes that justify national court assertion of universal jurisdiction. Third, natural law might be relevant to bolster arguments for the establishment of positive international law….

Asian Society of International Law 2009 Conference: Call for Papers

by Peggy McGuinness

The Asian Society of International Law announces the “Second Biennial General Conference of the Asian Society of International Law,” at the University of Tokyo, August 1-2, 2009, which takes up the important issue of Asia’s relationship with the international legal order under the main theme of “International Law in a Multi-polar and Multi-civilizational World – Asian Perspectives, Challenges and Contributions.”

The Organizing Committee cordially invites paper proposals and/or submissions for the event and has posted guidelines for proposals for papers, panels, discussant papers and agora papers. All presentations will be in English and all papers not in English must be accompanied by an English language translation. Speakers must be members of the Asian Society (membership in the Asian Society is free until April 2009.)  The conference organizers are interested in participation by both academics and practitioners.

The deadline for panel proposals is December 31, 2008; the deadline for papers for “regular” panels is January 31, 2009; and the deadline for discussant papers in the plenary session and agorae papers is February 28, 2009.

Thanks to my ASIL Insights Co-editor Amy Porges for passing along this information.

The Natural Superiority of Courts

by Mary Ellen O'Connell

Despite the title of his post, I do not read Chris Borgen as a natural law skeptic! He accepts the existence of norms and principles that must be explained by theories other than positivism. He is just skeptical about the standard approach to explaining the source of natural law, namely, the use of the concept of the common good.

I am concerned about that approach, too, and for some of the same reasons as Chris. Like him, I, too, see the New Haven School taking a common good approach that has been formulated through the observations of a handful of scholars. We should not dismiss the importance of concepts such as human dignity to inspire us to press for better international law, but such scholarship cannot be the source of universal principles.

The other classical explanation of the source of natural law is to draw on the evidence offered by the positive law. My contribution to the use of this source is to look to the development of legal process theory in this country—first by Hart and Sacks of Harvard, then Koh of Yale—as to who should be drawing the conclusions from examining the evidence. Legal process teaches it should be the authorized decision-makers—authorized under the positive law—through reasoned decision-making. This is not, of course, a perfect approach. . . .

No, a Truth and Reconciliation Commission Wouldn’t Work

by Kevin Jon Heller

Salon.com has an article today about the Obama administration and torture that floats the horrifying possibility — all too real, I’m sure — that Bush will issue a blanket pardon for “anyone who participated in, had knowledge of, or received information about Bush’s interrogation program during the so-called war on terror.”  I’m not going to waste precious pixels responding to that possibility; Jonathan Turley said it all when he told the Salon reporter that such a pardon “would allow a president to engage in massive illegality and generally pardon the world for any involvement in unlawful activity.”  I’m more interested in one law professor’s rationale for favoring a blanket pardon — that it would make it easier for a truth and reconciliation commission (TRC) to function effectively:

There are, in fact, some constitutional scholars who believe a pardon might actually facilitate more complete participation in a fact-finding commission, by removing the threat of looming liability. “Holding people accountable is certainly nice, but in terms of healing the country and moving forward, so is actually getting a clear picture of what happened and letting the public make an informed decision,” said Kermit Roosevelt at the University of Pennsylvania Law School. “If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome.”

I have the utmost respect for Professor Roosevelt, but this statement completely misunderstands the nature of a TRC…

About Those Independent Domestic Courts

by Deborah Pearlstein

At risk of distracting us too soon from the merits vel non of natural law, I wanted to take up another piece of Mary Ellen’s account – namely, her fairly positive outlook on the prospects of domestic court enforcement of international law.

Despite the subject matter’s placement in the very last chapter of the book, Mary Ellen I think rightly notes: “National courts are, in many respects, the most important institutions for enforcement of international law.” They are, she posits, the “most commonly used method of international law enforcement and in many respects the most attractive.” While national courts have imposed various discretionary or prudential obstacles to the successful enforcement of international law, Mary Ellen says, “these self-imposed limits have been diminishing in recent decades.”

I admit to stumbling a bit over the empirical claim…

Natural Law Skepticism

by Chris Borgen

In working through an explanation for the source of international law’s authority in the international community, Mary Ellen O’Connell describes the important role of positive law but also shows its limits. For example, it is very hard to imagine a serious contention that it is somehow possible to legalize genocide or slavery through the mere fact of enacting positive law. As Mary Ellen explains, there would be a general agreement that such laws—in whatever country they existed—would be invalid. In effect, they would be trumped by something prior to positive law. This is the realm of natural law or, to use a relatively recent synonym, jus cogens.

But, as Mary Ellen rightly notes in The Power and the Purpose,

The classic problem associated with natural law is, Who decides? How do we avoid the natural law answer being the subjective opinion of any one person—scholar, judge, world leader? Contemporary natural law theorists have responded to this problem, especially through the concept of the common good as an objective answer for natural law principles.

Mary Ellen, however, offers an additional explanation based on legal process theory.

I agree that a workable concept of natural law could bolster international law by defining a set of rules that were above and beyond the power of states. However, I am skeptical that such an enterprise is politically feasible beyond a very narrow set of rules (such as those mentioned in the first paragraph). In short, I am a natural law skeptic in all but a very few instances. Here are my reactions to Mary Ellen’s argument…

Stay Lifted in the Lubanga Trial (Updated)

by Kevin Jon Heller

The AP is reporting that the Trial Chamber lifted the stay “after the prosecution agreed to let judges review confidential material it received from the United Nations.”  No additional information is available yet; it will be interesting to see what the Chamber does about the documents that are still protected by confidentiality agreements — an issue I discussed here.

UPDATE: According to Galway’s Niamh Hayes, who was at the status conference, “[t]he prosecution has made a complete turn-around and agreed to make all the confidential information available, seemingly without restriction, to both the Chamber and the defence. The Chamber have already had the chance to review it, and it will be released to the defence later this week.”  If so, this is a significant victory for the defense (although I’m sure it would have been happier if the Court just let Lubagna walk) and an even more significant victory for the Trial Chamber, which will have left no doubt that it — and not the OTP — has the final say over what evidence the defense is entitled to receive.

Back to Basics: The Reawakening of Natural Law

by Mary Ellen O'Connell

In response to Will Fettes’s thoughtful post: The problem is not with positivism per se but positivism alone. By the 1960s, certainly in the United States there was a view that only positive law theory explained law and positive theory relied on the existence of the usual legal institutions—with their absence on the international plane, positivists could not understand how international law could have authority, be created, etc. International law hardly seemed to be real law. Its existence might extend as far as the president’s consent but not beyond and that consent could be withdrawn. American legal theorists could hardly conceive of (and the torture memos do not mention) jus cogens or peremptory norms. . . .

Here There Bee (More) Pirates … and Might the Obama Administration Take Them Out?

by Kenneth Anderson

Somali pirates strike again, this time hijacking a Saudi-owned tanker off the coast of Kenya. The running stand off with the hijacked ship carrying arms and a Ukrainian crew continues; Russia announces that it repelled an attack on a different Saudi vessel.  VOA describes the number of attacks and hijackings this year:

International Maritime officials say at least 83 have been attacked off Somalia this year, with 33 of them hijacked.  The pirates are currently holding about 11 ships, including a Ukrainian cargo vessel carrying 33 tanks. 

Might piracy be a relatively easy place for the Obama administration to demonstrate its approach to use of force, multilateralism, and international law?  No use of force question is ever truly easy – law of unintended consequences always in effect – but clearly this is a rising issue, and one in which the vessels of many nations have been attacked and continue at risk. Could the Obama administration led on this issue, an issue in which the US has long been the guarantor of the lawful freedom of the seas?  A coincidence of international law, multilateral interests, and US interests?

A Change (Back) We Can Believe In

by Mary Ellen O'Connell

President-elect Obama’s campaign for the presidency was all about change—change we can believe in. No doubt the readers of Opinio Juris have a long list of topics on which they wish to see change: Guantanamo Bay, CIA interrogation, Iraq, Afghanistan, the Middle East, Congo, Darfur, weapons proliferation, the global environment, the global economy, etc. But even if the new President manages positive change in these areas, to avoid the same type of mistakes that plunged the current Administration and the nation into so much trouble, we will need a more basic change: change back to our traditional deep knowledge of and deep respect for international law.

It seems many in our foreign policy elite—Democrats and Republicans alike—would not be able to explain why international law is binding law. They might be able to talk about consent to treaties, but not why consent binds or why customary international law binds, or even describe the general principles of international law. The current state of knowledge about international law contrasts with the decades before the 1960s when our Secretaries of State and their legal advisers, our judges, our law schools, even much of our public, had deep expertise and commitment to international law.

Many of our top legal and policy minds don’t even make the distinction between international law (law at the inter-state level) and foreign law (law of another country). Indeed, foreign law is not binding on the United States. However, international law is binding on the US, be it a treaty to which we are a signatory, a decision of a tribunal or court before which we have appeared, or those basic rules of customary international law and general principles to which all nations are held.

The Power and Purpose of International Law offers an explanation of how we lost that knowledge and commitment in the hope of showing the way back…

John Bellinger Responds to My Post

by Kevin Jon Heller

John has kindly agreed to let me post his private response to my previous post about his speech at the Fletcher School.  Before I do, though, I want to reiterate how important it is to not let the US’s refusal to join the ICC blind us to the many significant contributions the US has made, and continues to make, to international criminal justice — and that includes the ICC.  I’ll just mention two ICC contributions here.  First, the Elements of Crimes exist only because the US insisted on them.  Those Elements represent a significant advance for international criminal law, lending the crimes within the jurisdiction of the Court a precision that goes a long way toward satisfying the principle of legality.  Second, as I have pointed out before — and as John expands on below — the US has played an extremely important role in promoting the ICC’s work in Darfur, not least by publicly announcing its intention to veto any attempt to defer Moreno-Ocampo’s investigation of Bashir.

Enough context.  Here is John’s response…

Sundays with Stendhal 4

by Kenneth Anderson

Julien fell asleep, dreaming of honors for himself and human rights for everyone else.

(The Red and the Black, vol 2, chapter 39, ‘The Ball’.  The translation is a little loose, but captures the contemporary sense pretty well, wouldn’t you say?  More traditionally: “Julien fell asleep, dreaming of honors for himself and liberty for everyone else.”  The original … “par son imagination, qui revait des distinctions pour lui et la liberte pour tous.”) 

And, Lest We Forget Moldova…

by Chris Borgen

Even though my recent posts on the “frozen conflicts” have actually been on the not-so-frozen conflict in South Ossetia, we should not forget the ongoing situation in Moldova. In fact, the new issue of The Economist has a short piece reminding its readers of the ongoing Transnistrian separatist dispute. The quick update is this: while not as heated as the South Ossetian crisis, the conflict over Transnistria is mired in irresolution. However, the situation in Moldova may play an important part in stability in the region spanning from the Western shores of the Black Sea to the shores of the Caspian.

Regarding the current situation in Moldova, the Economist article begins…

Bellinger on International Criminal Justice

by Kevin Jon Heller

The State Department has posted John Bellinger’s recent speech at the Fletcher School on international criminal justice.  It is well worth a read, because it quite rightly highlights the US’s many important contributions — past and present — to international criminal justice.  That said, the speech regrettably dusts off all of the US’s tired objections to the ICC: not giving the Security Council (and the US, with its permanent veto) control over the ICC’s docket, not exempting Americans from the territorial jurisdiction of the Court, etc.  It also contains a few assertions that I think are unsupportable, such as Bellinger’s claim that the Bush administration’s “unsigning” of the Rome Statute was not “a confrontational… rejection of the ICC,” but simply a mild-mannered attempt to clarify the US’s legal obligations toward the Court.  Anyone want to buy a nice bridge?

The text of the speech is available here.

Stephen Kinzer’s Tendentious Editorial on the Kabuye Arrest

by Kevin Jon Heller

As most readers likely know, Germany recently arrested Rose Kabuye, the President of Rwanda’s chief of protocol, on behalf of France, who intends to prosecute her for being involved in shooting down then-President Juvenal Habayarimana’s plane, the event that triggered the Hutu-led 1994 genocide.  It appears that Kabuye actually wants to be prosecuted, because it will give her — and by extension the Rwandan government — a public platform to discuss France’s role in the genocide.  Indeed, the Rwandan government has  announced that it intends to indict a number of high-ranking French officials for being complicit in the slaughter, including former Prime Ministers Dominique de Villepin and Edouard Balladur.

Both issues — whether Rwanda’s ruling party, the Rwandan Patriotic Front, assassinated Habyarimana and whether France helped enable the genocide — are extremely complicated, with more than enough room for reasonable people to disagree.  That’s why Stephen Kinzer’s editorial in the Los Angeles Times yesterday is so disappointing.  To read Kinzer, Kabuye’s arrest is little more than France’s last-gasp attempt to undermine Rwanda’s government and prevent Rwanda from defecting to the British Commonwealth…

The Framing of the Georgian Conflict

by Chris Borgen

Although the Russian invasion of Georgia this summer has receded from the front pages, it is nonetheless the topic of vigorous debate. At stake is not only how we frame our response to the situation in Georgia, but also how we view our ongoing relationship with Russia.

For example, Edward Lucas, the Central and Eastern Europe correspondent for The Economist has posted to his blog a sharp critique of the EU’s policy towards Russia, post Georgian conflict. The essay had originally appeared int he Sunday Telegraph. it begins:

So it is business as usual with Russia. And what a bad business it is. Britain’s decision to allow France to lead the European Union back into normal relations with Vladimir Putin’s ex-KGB regime in Russia is one of the most startling volte-faces in our country’s recent diplomatic history. It has left our allies in Eastern Europe – Poland, the Czech Republic, Estonia, Latvia and Lithuania – aghast at our duplicity. “Our last European hope just —-ed us. We should have known. For we are but a small faraway country about which they know nothing,” a senior official in the region wrote in a despairing email after The Daily Telegraph broke the news on Friday.

European unity after the war in Georgia was never terribly impressive – a mild public rebuke and the suspension of talks on a new “partnership and co-operation agreement” until Russia met the conditions of the loosely worded truce brokered by the French president, Nicolas Sarkozy.

Russia has met some of those conditions – but not all. EU monitors are still unable to inspect the war zone properly. If they could, they would see evidence of ethnic cleansing in the two separatist enclaves of South Ossetia and Abkhazia. They would also see that Russia has increased its military presence. The message to the Kremlin is clear: you can invade a neighbouring country, threaten Europe’s energy supplies, and the EU will do nothing serious about it…

You can read the rest here.  Lucas’ analysis has been in the “new cold war” vein; that is, after all, the title of his book. While I am hopeful that we can manage our relationship with Russia so that we may be competitors but not enemies, I also think that Lucas is an insightful analyst who notices things than many others don’t (or at least notices them first…).

Some of the comments to his post (and his responses to them) are also very interesting. The crux of the critique of Lucas’s argument is the concern that the tide may be turning on the Georgian version of how the fighting began. For example…

The Preventive Detention Debate Under the Democrats

by Kenneth Anderson

sharply criticized New York Times reporter William Glaberson – the Times’s chief Guantanamo reporter – last week for, among other things, failing to take note of Benjamin Wittes and the centrality of his book, Law and the Long War.  I am happy to report that Glaberson has a new article out in today’s NYT, this time interviewing a wide range of people about the argument over preventive detention and a new Obama administration.  It has interesting quotes from Wittes, Jack Goldsmith, Elisa Massimino, and several others.  It’s a good piece, and makes plain the position of those (of us) who said flatly that a new administration, Democratic or Republican, would quickly discover that there is a certain number of people who will not be treated under what had been until the Obama election (or, in the case of the New York Times, the day before the election) the inviolable and pure and worthy standard of “charge them in Federal court or let them go.”

Update: besides the exchange under the Guantanamo tag, see this post referencing and quoting Eric Posner on this issue.

The G20 Global Financial Regulation Summit Today, and Transnational Government Regulatory Networks

by Kenneth Anderson

Today is the global financial crisis summit in Washington DC, with attendance by leaders of the G20, most of them actual heads of state … Will anything come of it?  What is this “college of supervisors” being proposed?  Is there a mismatch of expectations between Europe and the United States, and what can be done about it, if anything?  What does any of this have to do with the law professor interest in things like transnational governmental regulatory networks?

Holy Hullabaloos, The Blog

by Kevin Jon Heller

In case you’re tired of stodgy old international law, you might want to check out a new blog written by Jay Wexler, a professor at B.U., a leading law and religion scholar, and — far more importantly — a friend of mine from law school.  I’ve tried to think of how to capture the cleverness of Jay’s writing, but for once words fail me.  So I’ll just quote the titles of the last few posts to give you a taste: “Hullaballoos Endorsement: Randy Moss for the Supreme Court,” “Memoir Monday: High School Dodgeball,” and my favorite, “Former Porn Screenwriter Weighs in on Scalia’s New Sex Phrase.”

Take a look!

Treaty Lawyer Wanted

by Duncan Hollis

Friends often ask me what my favorite treaty is (OK, none of my friends ask me this, but they should).  I’d have to say the 1909 U.S.-Canada International Boundary Treaty (BWT) ranks right up there — for nearly a century it has dealt, mostly successfully, with all sorts of questions relating to the shared water resources of the U.S. and Canada, whether as a matter of irrigation, power, pollution, or environmental protection.  Much of that success can be attributed to the International Joint Commission (IJC) set up under the BWT.  The IJC has two sections, one American and one Canadian, comprised of three “Commissioners” each, plus various expert staff members.  Each section also has legal counsel, done most ably for the last several decades on the U.S. side by Jim Chandler.  Which brings me to the IJC’s need for a new treaty lawyer.  I understand that Jim is retiring and the U.S. government is seeking a replacement (details here).   Applications will be accepted through December 8.  So, if you’re a U.S. citizen and have always wanted a job where you could actually practice international law–interpreting treaties and dealing with the various legal issues that arise under the operation and activities of an international organization, this is your chance.  Apply today.

OUP/Opinio Juris Book Club: Mary Ellen O’Connell’s The Power and the Purpose of International Law

by Chris Borgen

On Monday through Wednesday next week, Mary Ellen O’Connell, the Robert and Marion Short Professor of Law at the University of Notre Dame Law School, will join us to discuss her new book, The Power and Purpose of International Law.  We are also very pleased that Beth Simmons, the Director of the Weatherhead Center for International Affairs and the Clarence Dillon Professor of International Affairs in the Department of Government at Harvard University, will also join us for the conversation. This book discussion will give us the opportunity to dig into issues of the enforcement of, and compliance to, international law, bringing together a consideration of some of the classic theorists as well as more contemporary debates. Here is a description of The Power and the Purpose from the OUP website:

The world is going through another important transition. International institutions have unquestionably been weakened as the United States works to sort through complicated issues such as the Afghan and Iraq wars, the use of torture and secret detention, Guantanamo, climate change, and nuclear proliferation. In recent memory, top Bush Administration advisers have spoken and written about the powerlessness of international law and its irrelevance-or worse-for the United States. The worldwide public needs and deserves a more accurate account. In The Power and Purpose of International Law , Mary Ellen O’Connor provides such an account by explaining the purpose of international law and the powers of enforcement it has available to achieve its mission…

Michelle F. on Peace vs. Justice in the Sudan

by Kevin Jon Heller

I have often argued that suspending the ICC’s investigation of Bashir in the name of “peace” would be a mistake, because Bashir has taken peace seriously only when faced with the prospect of significant international sanctions. Today Michelle F. at Stop Genocide makes that argument far better than I ever could.  Here is a taste:

Yes, we are talking about millions of lives, but who’s to say those lives will be saved if the indictment is suspended? The dynamics of power that are slowly shifting out of Khartoum’s favor would reverse course, encouraging the government to step up its efforts to crush the rebel movement in Darfur–to finish what it started, so to speak. And more often than not, civilians are targeted in the guise of “counterinsurgency measures.” Bashir and the NCP have been doing this ever since they took power in 1989, and an indictment suspension will be carte blanche for them to continue on their merry, gun-wielding, carpet-bombing ways.

Go read the entire post here.

Soft Power and Wedge Diplomacy

by Chris Borgen

Via Tom Barnett’s blog, I came across this essay by Jim Hoagland that was published last month in the Washington Post. Hoagland set out observations about the politicking at the World Policy Conference that was sponsored by the Institut Francais des Relations Internationales, a French think tank. What he saw has some interesting implications about the importance of soft power.

After setting the scene by describing Russian President Dmitry Medvedev’s attempts to drive a wedge between the U.S., on one side, and European and other states, on the other, Hoagland explained:

But as I listened to the freewheeling discussions, I wondered if the widespread obituaries being written for American power and all that it stands for might not turn out to be premature..

At Last, the Quant Solution for Guantanamo!

by Kenneth Anderson

A reader email to John Derbyshire at NRO … the quant solution to Guantanamo, from (apparently) the folks who gave us the financial meltdown … giving whole new meaning to the idea of “securitization.”

The Art of Ubiquitous Surveillance

by Chris Borgen

No, I’m not talking about how to do ubiquitous surveillance. Rather, I’m talking about how to take the product of massive video surveillance and turn it into, ahem, Art. (Well, maybe that’s only a small-a “art.”) Anyway, let’s say you’re an unsigned band from Manchester, England, and you want to make a video. You could hire some hip upstart video director, hire some models as extras, rent video cameras, lighting, props, etc. Or, well, you could just do this:

Unable to afford a proper camera crew and equipment, The Get Out Clause, an unsigned band from the city, decided to make use of the cameras seen all over British streets.

With an estimated 13 million CCTV [closed circuit television] cameras in Britain, suitable locations were not hard to come by.

They set up their equipment, drum kit and all, in eighty locations around Manchester – including on a bus – and proceeded to play to the cameras.

Afterwards they wrote to the companies or organisations involved and asked for the footage under the Freedom of Information Act.

Those cheeky Brits. It seems that they are part of a broader group of artists using CCTV.  I guess the revolution will be televised, after all.  See the video after the jump:

In the Mail: Matthew Evangelista, Law, Ethics, and the War on Terror

by Kenneth Anderson

Many of us who are law professors know Matthew Evangelista, who teaches in the government department at Cornell.  I have just finished reading his Law, Ethics, and the War on Terror (Polity 2008).  I teach a seminar on Just War Theory and ethics of war, so this is both professionally and pedagogically important for me.  Evangelista is a graceful writer, and this is graceful book.  If the measure of a philosophy text is the careful, sympathetic, finely tuned care with which it treats the views it ultimately disagrees with, then this book is high on the list in this subject area.  This is a field filled with overwrought writing – including some of mine, I’m afraid – but if you value clarity, and especially the rhetorical virtues of fidelity and charity in argument, this is an outstanding example.  I disagree with very large amounts of this book – and learned more from it at the level of moral, social and political philosophy than 90% of the stuff I have read in this field in the last two years.  OJ readers might not see it, I suppose, because most OJ readers would likely incline to too-easy agreement with Evangelista’s conclusions – but if you are a critic, like me, then you are much more attuned to the extraordinary care he takes with his argumentation.  Highly recommended.

Small Sovereign Archipelago Seeks New, Elevated Homeland

by Duncan Hollis

Mohamed Nasheed was sworn in as the archipelago’s new President, ending the thirty-year rule of Maumoon Abdul Gayoom.  In doing so, the Maldives is now being cited as an example for how a predominantly Muslim nation can make the transition from autocracy to democracy, albeit with a few bumps along the way (Violent protests in 2003 precipitated Gayoom’s willingness to develop democratic institutions, including the legalization of political parties in 2005, but Gayoom only conceded defeat after losing a highly-contested October run-off election against Nasheed.).

Nasheed’s ascension to the presidency, moreover, provides a new datapoint for those who study transitional justice.  Nasheed had been a political dissident, jailed dozens of times, and allegedly beaten and tortured in the process.  But Nasheed’s administration appears to favor peace over justice going forward.  He’s asked Maldivians to avoid retribution, saying, “We have the latitude to remove anyone from government and prosecute them. But I have forgiven my jailers, the torturers. They were following orders … I ask people to follow my example and leave Gayoom to grow old here.”  Thus, at a time when other amnestys are fraying and a justice-model for redressing political crimes holds sway in the international context, the Maldives marks a different direction for dealing with past atrocities and repression…

The Vehicles of Global Governance

by Kenneth Anderson

At the SMU conference last week on transnational governance networks, splendidly organized by Prof. Jenia Turner, a question much on my mind was one that was – what’s the word? – obviated by the topic of the conference itself: what role for global civil society in, so to speak, running the planet?  For that matter, what role for the UN?  And how much do we believe in any grand sense of political global governance anymore?

Sarkozy Overreaching in the Global Economic Summit?

by Kenneth Anderson

Nicolas Sarkozy’s proposals for global governance of global finance and the global economy are a classic case of global governance platonism overcoming good sense.  In advance of a November 15 global economic summit that already promises to be a complete and blathering waste of time – and an almost complete mismatch of expectations between the United States and Europe – the Washington Post, in an editorial yesterday, takes Sarkozy to the proverbial woodshed for a well deserved whuppin’.

Best Wishes on Veterans Day, Armistice Day, and Remembrance Day

by Kenneth Anderson

It’s not an exclusively American holiday – far from it.  Indeed, its origins are dismayingly transnational – the 11th hour of the 11th day of the 11th month when the Armistice took hold and finally ended the Great War in 1918.  And as the historian John Lukacs has pointed out in many books, the history of the twentieth century takes place in the immense shadow cast by the First World War; in historical terms, it is the generator of the twentieth century.  The wars of the Yugoslav succession, the map of the modern Middle East, and so much else, inside and outside of Europe.

After Medellin: A Proposed ICJ Decisions Implementation Act

by Steve Charnovitz

 [Steve Charnovitz is an associate professor of law at The George Washington University Law School. He blogs at the International Economic Law and Policy Blog.]

On October 31, 2008, I made a presentation at the ASIL’s Tillar House of a proposal for an “International Court of Justice Decisions Implementation Act.” My proposal is an outgrowth of my essay in the Agora of the July 2008 issue of the American Journal of International Law. The Agora focuses on the U.S. Supreme Court’s decision in “Medellin v. Texas” and includes essays by David Bederman, Curtis A. Bradley, Carlos Vázquez, and I. All four essays are posted on the AJIL website. In my essay, titled “Revitalizing the U.S. Compliance Power,” I critique the Supreme Court’s reasoning and suggest that there would have been a way to interpret the U.N. Charter to require that Texas comply with the judgment of the International Court of Justice. (Because of the Supreme Court’s rulings, Texas put to death the Mexican national that the case centered on.) My essay also looked forward and discussed ways in which the Congress and future treatywriters could respond to Chief Justice Roberts’s Opinion with regard to the pre-requisites for treaty implementation in the United States.

On page 560 of my essay, I said that Congressional “legislation could authorize the President to implement ICJ judgments or could establish an expedited procedure to gain legislative approval of compliance” (footnote omitted). My presentation at Tillar House built on that sentence by offering a specific proposal for how Congress might act in framework legislation to authorize U.S. compliance with ICJ decisions at the request of the President.

The proposed Act is attached at the end of this post and let me give a brief summary of it…

Opining on the Future of Intelligence Policy

by Chris Borgen

Adding to the fortune-telling articles concerning the policies of the incoming Obama Adminstration, the Wall Street Journal states that the current adminsitration’s policies will go through the transition “largely intact.”  However, I think it is just too early to tell. The WSJ article begins…

Rumors of Gitmo’s Demise

by Deborah Pearlstein

Turns out rumors of a new Obama Administration-developed security court may have been greatly exaggerated – or at least premature. The blogosphere was briefly abuzz yesterday after an AP wire story in the morning reported that some of the Guantanamo detainees “might have to go before a new court designed especially to handle sensitive national security cases, according to [unnamed] advisers and Democrats involved” in talks with the Obama transition. In particular, “[a]ccording to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate.”

By last evening, CNN was quoting an actually named transition adviser who had a rather different take. According to senior adviser Denis McDonough, no decisions had been made about what to do with the remaining Guantanamo inmates when the base is closed, and moreover “there is no process in place to make that decision until [President-Elect Obama’s] national security and legal teams are assembled.”

McDonough’s position is not only obviously right, it’s far more likely true. The resolution of the cases remaining at Guantanamo is as fraught an endeavor as any, sensibly resolved only with the input of an interagency-type team including at a minimum the Departments of Defense and Justice, CIA and State. It also seems like the kind of judgment that one wouldn’t want to make without having actually reviewed the full factual record the government has assembled on the individuals who remain – a record that still has been only partly made public. It’d be one heck of a transition team that had managed to make time in the first week to review all 250+ cases from Gitmo on the (classified and unclassified) facts.

A whole lot of folks are understandably – and rightly – keen to see Gitmo resolved ASAP. But as someone (could be the president-elect) once said with respect to Iraq – we need to be as careful getting out as we were careless getting in. There are a few things, including a clear statement of purpose, that can happen right away. For the rest, we’ll have to wait at a minimum til after January 20.

Obama’s Cure for Military Commissions May Be Worse Than the Disease

by Julian Ku

According to news reports, President-elect Obama is going to take major steps to end President Bush’s system of trial via military commissions. It sounds…complicated

Under the plan being crafted inside Obama’s camp, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases.

I understand Obama wants to close Gitmo and try some detainees on U.S. soil.  And I suppose the plan that might be adopted is the “national security court” idea first broached by Professors Jack Goldsmith and Neal Katyal last year. This seems like a pretty good idea, but, then again, the military commissions seemed like a good idea at one point as well.  But any national security court will be tied up in congressional battles over its enactment and litigation challenging its propriety. I can already see the due process and equal protection challenges coming down the road.  

If Obama really wants to move quickly, he should either: 1) send all detainees to U.S. courts for trial; or 2) modify the current military commissions into something close to his ideal “national security court.” He has broad executive powers to alter military commission procedures.  And I am not even raising the political problem of letting Republicans denounce him for months for going soft on terrorists (but that’s his problem, not mine). 

Reverse Forum Shopping

by Roger Alford

I was in Miami for the weekend speaking at a conference sponsored by the American Bar Association and the International Bar Association on the topic of mass claims in developing countries. Many lawyers in the room were defense counsel for prominent corporations subject to new claims for violations of international or foreign law. There were also plenty of plaintiff lawyers, which made for interesting discussion.

One of the issues that I discussed in my presentation was “reverse forum shopping.” Here is what appears to be happening with many of the cases. Cases are being filed in the United States against corporations because plaintiffs prefer this forum over any other in the world. The United States offers almost everything a plaintiff could dream of: contingency fees, liberal personal jurisdiction standards, no loser pay rule, broad discovery, unusual FSIA exceptions, punitive damages, class actions, international law causes of action, civil jury trials, default judgments, etc. Plaintiffs are forum shopping, and the preferred brand bears the United States moniker.

But defense counsel immediately respond with their own version of forum shopping. Call it reverse forum shopping….

DC Jews Rally for Darfur

by Kevin Jon Heller

Awesome:

Jews are no strangers to the idea of persecution and for years, Jewish groups have been at the forefront of the movement to save Darfur save Darfur, a region in western Sudan, which is awash in cultural genocide. Today, they join with Tents of Hope on the National Mall to show solidarity with the refugees of Janjaweed aggression.

Sixth & I has planned a few ceremonies to commemorate this day, including an inter-religious prayer service from 10 to 11 a.m.  But November 9 isn’t just important due to the rally, it is also the 70th anniversary of Kristallnacht (Night of Broken Glass.)…

Let us hope that the actions of these groups today help to change the memory of November 9 from a time of hatred to  a time of peace.  In remembering the atrocities of the Holocaust and of Darfur, we can raise world consciousness and shout out with conviction, never again.

I wish I could have been there. If any of our DC readers were, your thoughts would be appreciated.

Our So-Called GWOT and Anticipatory Self-Defense

by Chris Borgen

In his recent post, Julian wrote that the secret U.S. military raids in Syria, Pakistan, and other countries may be (in his view) easily justifiable under U.S. law, but that the issue of legality

is much harder to answer as a matter of international law – indeed, it would have to be some theory of preemptive self-defense. Expect to see denunciations of these raids from international lawyers in the next few days, as well as from foreign governments on the list of countries named in the order.

I think Marko Milanovic and other commentors have done a good job looking at the international legal problems. For an argument concerning whether international law is evolving regarding the use of force in counter-terrorism activities, I would recommend Jose Alvarez’s Hegemonic International Law Revisited, 97 American Journal of International Law 873 (2003).

Moreover, for further perspective on the domestic legal and policy issues concerning anticipatory self-defense, I want to point to a recent op-ed in the Arizona Republic by Amos Guiora (a former Israeli Defense Force Lieutenant Colonel and a law professor) and Daniel C. Barr (a U.S. lawyer).  As I had mentioned in an earlier post, Guiora has been grappling in his scholarship with the issue of legal regulation of anticipatory self-defense both under U.S. and international law; this op-ed tries to rescue the idea of anticipatory self-defense from the excesses of the Bush Administration and argues for requiring participation of the other branches in decision-making. They wrote, in part…

Does Any Opinio Juris Reader Drive a Detroit-Made Car?

by Kenneth Anderson

As discussions of a(nother) bailout for Detroit automakers continue, one question that intrigues me is whether any Opinio Juris readers drive Detroit-made cars – i.e., cars made by the Big Three US automakers?  Please feel free to indicate in the comments.  Also please feel free to comment on how your make of car makes you feel.  Be honest: when you say fuel efficiency, do you really mean that as self-interested fuel efficiency or instead fuel efficiency as a Veblen-leisure class status marker – or both?  Do American professors still show a preference for Volvos?

Sudanata

by Kevin Jon Heller

Two items of Sudan news to report.  First, the Sudanese government has lawyered up, hiring the prominent British firm Eversheds LLP to represent it at the ICC.  I wonder if that means Bashir is expecting the Pre-Trial Chamber to issue the arrest warrant; although Article 19 of the Rome Statute is not the picture of clarity, it seems to allow a State to challenge the admissibilty of a case only after a warrant has been issued.

Second, an official of the Sudanese government has announced that it has received approval from the IAEA to pursue nuclear power.  I have nothing against using nuclear power to generate electricity, but the idea still bothers me.  And it doesn’t make me feel much better that Sudan is a signatory to the Nuclear Non-Proliferation Treaty.

Is There Really a War on Terrorism Outside of Afghanistan? You Betcha!

by Julian Ku

Critics of the U.S. war on terrorism often deride it as a bad metaphor or an excuse to conduct controversial detentions, interrogations and military trials.  But what the Pentagon refers to as the “Global War on Terrorism” (GWOT) has many of the characteristics of a typical armed conflict, even outside of the main battlefield in Afghanistan.  As the NYT reports:

The United States military since 2004 has used broad, secret authority to carry out nearly a dozen previously undisclosed attacks against Al Qaeda and other militants in Syria, Pakistan and elsewhere, according to senior American officials.

These military raids, typically carried out by Special Operations forces, were authorized by a classified order that Defense Secretary Donald H. Rumsfeld signed in the spring of 2004 with the approval of President Bush, the officials said. The secret order gave the military new authority to attack the Qaeda terrorist network anywhere in the world, and a more sweeping mandate to conduct operations in countries not at war with the United States.

In other words, there really is a global war on terrorism – it really is going on in places outside of Afghanistan – and it really is an international armed conflict.  U.S. military forces are killing enemies (and probably) dying, they are detaining people, and they are probably interrogating people.  And this war is not going to go away simply because the U.S. has elected a president whom the world seems to like.

As a matter of U.S. law, there seems little doubt that these military raids are explicitly authorized…

Kristallnacht Remembered

by Kevin Jon Heller

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Today is the 70th anniversary of Kristallnacht, the Night of the Broken Glass, during which 92 Jews were murdered, 25-30,000 Jews were arrested and deported to concentration camps, and more than 200 synagogues and Jewish businesses were destroyed.

I was in Vienna for the 60th anniversary.  Late that night, I was walking through the Heldenplatz, where Hitler announced the anschluss of Austria to the German Reichstag, on my way to a friend’s apartment.  It was cold, damp,and foggy.  As I approached the plaza, I saw four gigantic speakers standing in each corner.  The same stentorian voice boomed from each speaker, reading the names of the Jews that died that night in an endless loop.  The speakers were time delayed, so the voice overlapped with itself.  In the center of the square was a row of viewfinders — modern versions of the View Master toys we enjoyed as kids.  Inside the viewfinders were photos of the murdered Jews, the burning synagogues, and the destroyed businesses.  It was an overwhelming experience, one that brought me to tears.  The memory is as vivid today, ten years later, as it was the next morning.

Time magazine has a wonderful photo essay on Kristallnacht here.

UPDATE: Hands, meet brain.  As Howard points out, Kristallnacht is not, in fact, the Night of the Long Knives, Hitler’s 1934 purge of the SA.  I have edited the post accordingly.  My German isn’t that bad…

UPDATE 2: At Volokh Conspiracy, Jim Lindgren has posted the fascinating — and disturbing — results of a 1938 Gallup poll about Europe’s Jews.

China’s Export Economy and Global Demand Slowdown

by Kenneth Anderson

Something that my international business law students often have trouble grasping is that the Chinese economy remains enormously dependent upon exports to the rest of the world and to the US in particular.  On account of so much attention, often in undergraduate political science classes and elsewhere, I suspect, to the “rise of China and India,” my students, and perhaps the broader public as well, have a misplaced sense  of the size of China’s economy and its dependence upon American demand.  In very rough terms, China’s economy, well over a billion people, is on the order of $3 trillion in nominal GDP … while the US economy, or the EU economy as a whole, is each around $13 trillion.   There are all sorts of different ways of measuring the relative size of economies – purchasing power parity (on which China goes up to around $7 trillion), etc. – but in rough orders of approximatiion, the story is the same.  The point is that when demand falters, even modestly (on a historical basis) in the US and Europe, the consequences for China’s economy are leveraged.

Sundays with Stendhal 3, Another Danton?

by Kenneth Anderson

‘Beware of that young man, who has so much energy,’ her brother cried; ‘if the Revolution begins again, he will have us all guillotined.’ …

‘Another Danton?’ thought Mathilde to herself.  Her brother’s remark filled her with horror; it greatly disturbed her; but after sleeping on it, she interpreted it as the highest possible praise…. ‘Very well! Let us suppose that the Revolution has begun.  What parts would Croisenois and my brother play?  It is all prescribed for them: sublime resignation.  They would be heroic sheep, allowing their throats to be cut without a word.  Their sole fear when dying would still be of committing a breach of taste.  My little Julien would blow out the brains of the Jacobin who came to arrest him, if he had the slightest hope of escaping.  He, at least, has no fear of bad taste.’

(The Red and the Black, Book Two, chapter 42, Another Danton?)

International Commercial Arbitration at the University of Georgia

by Peter Spiro

UGA Law School will be a hosting a conference on international commercial arbitration fifty years after the New York Convention on January 29.  Announcement here.  Featured will be Gary Born, who has a major new treatise on the subject; other participants will include George Bermann and Andreas Lowenfeld.  Looks like good stuff.

Perjury in the Butare Trial

by Kevin Jon Heller

The Butare trial is the ICTR’s largest and longest — it began in June 2001, involves six defendants accused of genocide, and shows no signs of ending anytime soon.  The trial is likely to go on even longer because two of the defendants, former Governor Alphonse Nteziryayo and ex-Mayor Elie Ndayambaje, are ill.  And that comes not long after one of the prosecution’s key witnesses admitted that he perjured himself in 2004:

“I gave false testimony and I have highly regretted since then,” said prosecution witness code-named “QA” as everybody in the courtroom heard in complete disbelief, at least for the prosecution side. However, he did not elaborate what motivated him to lie before the UN Court.

The witness gave evidence before the International Criminal Tribunal for Rwanda (ICTR) on March 18, 22 and 23, 2004.

“I promise, this time I will speak the truth but previously I told lies,” insisted QA before the three-bench judges led by William Sekule of Tanzania. The rest of the hearing was in closed session.

The Chamber in its ruling dated 28 October, 2008, granted a motions filed by two accused — Joseph Kanyabashi, former Mayor of Ngoma commune and Sylvain Nsabimana, former Governor — who wanted to cross examine witness QA on additional topics as they had suspected that he had lied before the court.

It remains to be seen what effect QA’s perjury will have on the trial.  The article implies that, at most, the additional cross-examination will slow the defense case.  Seven years in, however, any delay is a bad sign.  See, e.g., Milosevic…

Another Allegation of Prosecutorial Misconduct at the ICTR

by Kevin Jon Heller

Last month, I noted that the ICTR had formally reprimanded its Prosecutor for failing to disclose exculpatory evidence to the defense in the Military II trial.  Now Jerome Bicamumpaka, the Minister of Foreign Affairs in the interim government who is accused of genocide, has made similar allegations:

Inspired by this sanction inflicted to the prosecution by another formation of judges, Bicamumpaka accuses the prosecutor of having hidden documents from him proving that the testimony for the prosecution of protected witness “GAP” was part of a plot conspired at the central prison of Ruhengeri, northern Rwanda.

In January 2004, GAP, thus designed to preserve his identity, had affirmed to have killed a Tutsi following an inciting speech which Bicamumpaka would have given during the swearing in of the new prefect of Ruhengeri, Basile Nsabumugisha, in April 1994.

Disputed by the defence, the presence of the defendant at this ceremony had also been reported by another witness, GFA. But the latter later reconsidered his allegations, explaining that he had given a false testimony which had been entirely assembled, with the complicity, according to him, inter alia, of the administration of the prison of Ruhengeri and GAP…

Obama, Medvedev and the Big Chill

by Roger Alford

Amidst all the global celebration regarding the election of Barack Obama there is stark news that Moscow is emerging as a serious resurgent threat to the United States. Within hours of Obama’s election Russian President Dmitry Medvedev ordered the redeployment of missiles on the Polish border. A few United States papers are covering the story, but this report offers the fullest picture:

The President failed to congratulate Mr Obama or even to mention him by name during the 85-minute address televised live across Russia.

In a criticism directed at the US, Mr Medvedev said: “Mechanisms must be created to block mistaken, egotistical and sometimes simply dangerous decisions of certain members of the international community.” He accused the West of seeking to encircle Russia and blamed the US for encouraging Georgia’s “barbaric aggression” in the war over South Ossetia in August. He also gave warning that Russia would “not back down in the Caucasus”.

“The August crisis only accelerated the arrival of the crucial moment of truth. We proved, including to those who had been sponsoring the current regime in Georgia, that we are strong enough to defend our citizens and that we can indeed defend our national interests,” Mr Medvedev said.

“What we’ve had to deal with in the last few years – the construction of a global missile defence system, the encirclement of Russia by military blocs, unrestrained Nato enlargement and other gifts . . . The impression is we are being tested to the limit.” The outgoing President Bush insists that the missile shield is aimed at rogue states such as Iran, but the plan has infuriated Moscow, which argues that it threatens Russia’s security.

Mr Medvedev said that Russia had been forced to cancel its plans to withdraw the intercontinental ballistic missiles, which have a range of 6,200 miles (10,000 kilometres). He said: “We want to act together. But they, unfortunately, don’t want to listen to us.”

Mr Medvedev blamed the US for the global financial crisis, saying that the rest of the world had been “dragged down with it into recession”. He said that the era of American dominance after the collapse of the Soviet Union was over. “The world cannot be ruled from one capital. Those who do not want to understand this will only create new problems for themselves and others,” he said.

I spoke with a career State Department official who just retired and his words were ominous. “I know these bastards and they remind me exactly of my early years at State.” I fear that Russia will be as serious a threat to the Obama Administration as Iran or Islamic terrorism. Welcome to the Big Chill.

SMU: The Rise of Transnational Networks

by Kenneth Anderson

All the really cool people in the world are at SMU in Dallas today, at a conference called The Rise of Transnational Networks.  Professor Jenia Turner is the organizer, and she and her colleagues and the SMU students have done a fantastic job of getting great speakers and panelists.  This is a very smart meeting.  The videos will be posted up at some point, but the ABA journal The International Lawyer, which is published out of SMU, will run pieces from the conference in an upcoming issue.

New ICJ Members Elected

by Roger Alford

The General Assembly and Security Council have just announced the election of two current and three new members of the International Court of Justice. Here is the key excerpt of the press release:

The General Assembly and the Security Council of the United Nations yesterday elected five Members of the International Court of Justice (ICJ) for a term of office of nine years, beginning on 6 February 2009. Judges Awn Shawkat Al-Khasawneh (Jordan) and Ronny Abraham (France) were re-elected as Members of the Court. Messrs. Antônio Augusto Cançado Trindade (Brazil), Christopher Greenwood (United Kingdom of Great Britain and Northern Ireland), and Abdulqawi Ahmed Yusuf (Somalia) were elected as new Members of the Court.

The biographies of Judges Al-Khasawneh and Abraham are available here and the biographies of Messrs. Cançado Trindade, Greenwood and Yusuf can be found here. Kudos to all.

Some Africans Ask, “Why not here?”

by Peggy McGuinness

The celebrations in Africa (in particular in Obama’s father’s homeland of Kenya, where scores of newborns have been named Barack or Michelle) have left some introspective:  Why has democracy continued to evolve and progress is the U.S., but not here?  Mark Leon Goldberg at UN Dispatch links to this letter to the editor from the Guardian in Lagos, Nigeria:

 

What has happened in United States of America is in total contrast to what continues to happen in Africa and Nigeria, the most populous black nation in the world. 

The Black world still represents a place where political opportunities are not open to all; where godfatherism in politics thrives; where the people’s votes do not count; where ethnicity still defines the trends in politics; where there is no transparency and accountability in government, and where anyone who calls and crusades for change, is seen as an enemy of the State rather than a patriot…

If we must be like America, we must begin to make sacrifices for our country by putting aside mundane considerations like friendships, tribal ties, consanguinal relationships, financial inducements, and at all times be ready to fight for social justice, equality of all parts of the country, accountability and transparency in government and most importantly, free and fair elections. At the end, we may be able to say like the Americans “Yes We Can!”

Law, Ethics, and the War on Terror

by Chris Borgen

This past September, I was a speaker at a conference on Law, Ethics and the War on Terror that was organized by Geoff Corn at the South Texas College of Law. The conference is now available as a video-stream. Part one is here and part two is here. The other panelists were incredibly impressive including senior military officials, prominent defense attorneys, and academics whom I admire. Their bios are available here. (This is the first conference I have attended where one of the other panelists is a graduate of Top Gun.) I learned a great deal at this symposium and, although (as far as I can tell) you cannot fast forward through the videos, I highly recommend watching them if you have the time.

As for what is on each video: part one includes the morning panel, “The Criminal Prosecution of Terrorists”, which has presentations by Jeanne Baker (“Terrorism” Is a Crime So Heinous That Even Innocence Is No Defense); Bobby Chesney (Terrorism and the Utility of Federal Criminal Prosecution); Col. Lawrence J. Morris (They Would Have Invented It: The Historical, Constitutional, and Practical Case for Military Commissions);Geoff Corn, Lt. Col. (ret.) (Have We Targeted the Offenses or the Defendants?); and Michael Lewis (The Military Costs and Benefits of a Criminal).The Q&A was moderated by Victor M. Hansen, Lt. Col. (ret.).

This is followed by the morning keynote by Fred L. Borch, Col. (ret.), who spoke on “The Historical Role of Military Lawyers in National Security Trials.”

The second video stream begins with the afternoon keynote, “The Ethical Dimension of National Security Legal Advice,” an address given by Maj. Gen. Charles J. Dunlap, Jr.

This is followed by the afternoon panel (on which I spoke): “Has the United States Lost the Ethical High Ground in the War on Terror?” The panelists in order of presentation were John Hutson, Vice Adm. (ret.) (How America Could Actually Lose the War on Terror); Amos N. Guiora, Lt. Col. (ret.) (Freedom of Religion–Freedom from Religion); Richard Jackson, Col. (ret.) (Law of War in GWOT–Regaining the Moral High Ground); me (Hearts and Minds and Laws: Legal Compliance and Diplomatic Persuasion); and Eugene R. Fidell (The High Ground and the National Narrative). The Q&A was moderated by Walt Huffman, Maj. Gen. (ret.).

Obama 2.0

by Kevin Jon Heller

Remember the halcyon days of the election when Obama was a socialist and a marxist?  Well, funny thing. According to the RNC, he’s actually a moderate Republican:

In all, with Barack Obama’s promises to cut taxes, merit pay for public school teachers, and renewed offshore drilling, I would say he simply ran the most successful moderate Republican presidential campaign since Dwight Eisenhower.

What do you think explains the volte-face? A crushing defeat at the polls, or the right rediscovering that handy little thing called a dictionary?

President-Elect Obama on International Law

by Duncan Hollis

While Peggy, Peter and Ken have provided more overarching views of the impact of Obama’s election and his coming presidency, those readers ready to get into the weeds of what Obama will do when it comes to international law should check out his responses to an ASIL survey done back when the primaries were still in full swing.  You can access it here (the home page of the (redesigned) ASIL website also links to it along with excerpts that reflect Obama’s views on various foreign relations topics).  Of course, the responses to the survey were done with a different audience in mind (Democratic primary voters) and pre-economic meltdown.  I’d blogged about the surveys when they first came out, but re-reading them today I’m struck by how different a posture at least initially our President-elect brings to the job.   Check out his response on how international law relates to U.S. foreign policy: 

Since the founding of our nation, the United States has championed international law because we benefit from it. Promoting – and respecting – clear rules that are consistent with our values allows us to hold all nations to a high standard of behavior, and to mobilize friends and allies against those nations that break the rules. Promoting strong international norms helps us advance many interests, including non-proliferation, free and fair trade, a clean environment, and protecting our troops in wartime. Respect for international legal norms also plays a vital role in fighting terrorism. Because the Administration cast aside international norms that reflect American values, such as the Geneva Conventions, we are less able to promote those values abroad.  

President of the World … or, the American Dream, Made in America and, Really, Only in America?

by Kenneth Anderson

I’m hopping on a plane shortly, so I can’t fill this out as I’d like.  And anyway, it is probably too early to say very much other than to note the question, which is this.

Peter and others have claimed the Obama election as something for the world, and even as (maybe, with many qualifications, etc., etc.), sort of honorary president of the world.  I don’t believe that the record over time will bear this out, but that may be because I lack the Whig history gene.  But, okay, maybe it will; what do I know?  Whether it does or not recapitulates an argument among cosmopolitan platonists and people who are realists of a certain kind, at least on that issue.  We can – and do – argue about that proposition endlessly, but let’s turn and see something else.

Note how different the source of praise for this election that I or, in part, Roger have offered.  At least in my case, it is a much more specifically American praise.  Far from being a vindication of universalism offered for the whole planet, arising on account of Obama’s planetary upbringing, etc. – I would instead argue that it is actually more evidence of American exceptionalism.  Where else in the world, at least of major global powers with long historical track records, would this happen?  This is not, on my view, evidence of the planetary influences, even if Barack Obama might think they are – citizen of the planet, etc – but instead of a particular sovereign democratic political system and its openness.

Two forms of praise for this election, but very different reasons offered for it.  I am hardly inclined to concede the political grounds for Obama’s election to some form of planetary universal cosmopolitanism, when it looks, on the contrary, so very, very American.

These two views are not necessarily and always incompatible.  But they often are and they can lead to wildly different expectations of what President Obama is supposed to be and supposed to do.

There’s more to say about this, obviously, but I gotta run.  Plus, it’s probably too early to tell.  I might write on this down the road, when there’s more of a track record on which to comment.

The Smart/Soft Power of Barack Obama: A Case of Exceptional Americanism

by Peggy McGuinness

As Peter notes here, yesterday’s historic election felt, in many ways, like a global election. Measured by how the election affects the lives of people around the world, it is not too much of an exaggeration. For months, pundits have also seized on the overwhelming global support of Obama as evidence that his election – in and of itself – will strengthen the U.S. position internationally. It is worth taking some time to think about at least four reasons why an Obama presidency will enhance the soft power of the United States:  (1) the importance of not being George W. Bush; (2) the importance of not being a Baby Boomer; (3) the importance of being the first African-American elected to the presidency; (4) the importance of being Barack Obama. . . .

President for the World

by Peter Spiro

Or should that be President of the World?  The global reactions have been overwhelming, not the least because Obama carries in himself a mixed global identity.  As Philippe Sands put it:  “People feel he is a part of them because he has this multiracial, multiethnic and multinational dimension.  He represents, for people in so many different communities and cultures, a personal connection. There is an immigrant component and a minority component.”

Many implications, but here are two. . .

Congratulations to President-Elect Obama …

by Kenneth Anderson

from someone who supported the other guy.  It is a great day for this country, and one of the things that makes and keeps the United States great is that Barack Obama will be my president too.  

I remember asking someone in the Georgian civil wars why this was all worth a civil war, why not an election – he looked at me as though I had lost my mind and said, here in this country, we only have elections once.  The winner wins it for good; that is why the stakes are so high.  We do not trust that there will be a next time, and if the president comes from one side, he is not the president of the other side, not really.  There might be a next time, but because you can’t be sure, you fight now.  

My daughter said grace tonight at dinner and paused to ask God to bless President-elect Obama – for which, given that she was wearing a Palin t-shirt, and I’m entirely certain the only one to be found at Sidwell school, I was very happy.  At some point down the road, I’ll start noisily disagreeing with President Obama, but this is a time to celebrate the moment, because it is one of the great days in the long history of this country.

“New Dawn of American Leadership is at Hand”

by Roger Alford

Great speech. Amazing day. Whether or not you supported Barack Obama, one cannot deny the achievement America made last night. Martin Luther King has always been one of my heroes and I cannot help but wonder what he would have said had he lived to see this day. If there are tears of joy to shed in heaven, King is weeping right now.

For our community of readers, of course, the international angle looms large. Both Obama and McCain gave us reason to be proud last night.

To all those watching tonight from beyond our shores, from parliaments and palaces, to those who are huddled around radios in the forgotten corners of the world, our stories are singular, but our destiny is shared, and a new dawn of American leadership is at hand.

To those — to those who would tear the world down: We will defeat you. To those who seek peace and security: We support you. And to all those who have wondered if America’s beacon still burns as bright: Tonight we proved once more that the true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals: democracy, liberty, opportunity and unyielding hope.

That’s the true genius of America: that America can change. Our union can be perfected. What we’ve already achieved gives us hope for what we can and must achieve tomorrow.

Kudos to McCain for such a gracious concession speech. He fully understood the historic nature of the election:

A century ago, President Theodore Roosevelt’s invitation of Booker T. Washington to dine at the White House was taken as an outrage in many quarters.

America today is a world away from the cruel and frightful bigotry of that time. There is no better evidence of this than the election of an African-American to the presidency of the United States.

Let there be no reason now … Let there be no reason now for any American to fail to cherish their citizenship in this, the greatest nation on Earth.

It is too early to hazard precisely how the election of Barack Obama will change our position in the world. But I think it is safe to say that the world will never perceive us quite the same again.

Where Have I Seen the NYT’s Detainee Data Project Before …? And Is the Times Implying that It’s Okay to Hold Some Detainees Without Trial?

by Kenneth Anderson

The New York Times ran a front page story from its lead Guantanamo reporter yesterday.   (William Glaberson and Margot Williams, research assistance Andrei Scheinkman, “Next President Will Face Test on Detainees: Some at Guantanamo Called Serious Risks,” NYT, Monday, November 3, 2008 (behind reg. user wall), A1; plus a referenced data base of detainees used to analyze the detainee records.)

Now, where was it that I first heard of what Glaberson et al. have done here – created an elaborate data base of all the detainees and their statements in front of the military commissions and various hearings, and read thousands of pages of testimony, much of it from the detainees themselves – where was it, again?  Oh, I remember, Benjamin Wittes’s book from not so many months ago, Law and the Long War.  As discussed here at Opinio Juris in a roundtable.  But is there any reference to Wittes’s pathbreaking work in this article or even in the data base?  Not so far as I can tell; if there is, my humble apologies to all concerned (no fair adding it unacknowledged afterwards, of course).

Treaties, Contracts, or Political Commitments? What’s the Status of the China-Taiwan Deals?

by Duncan Hollis

Looking for a break from the round-the-clock U.S. election coverage today?  Then, check out the news stories coming out of Taiwan this morning.  The head of the highest-level PRC delegation to visit Taipei since 1949 has signed a series of instruments with his Taiwanese counterpart on a range of economic topics: 

Taiwan and China signed a range of deals on Tuesday that are aimed at bringing the two sides closer economically, after almost 60 years of hostilities that often took them to the brink of war.  Officials signed four agreements that are potentially worth billions of dollars, after talks that marked a significant warming of ties between the former bitter enemies.  The two sides agreed to introduce direct cargo shipping and postal services, to add passenger flights and shorten existing routes, and to discuss food security in the wake of scandals involving poisonous Chinese food imports.

Tourism also featured at the talks, which took place Tuesday morning in Taipei’s Grand Hotel between Beijing’s envoy Chen Yunlin, head of China’s Association for Relations Across the Taiwan Strait, and Chiang Pin-kung, his local counterpart as head of the Strait Exchange Foundation.  They discussed cooperation on issues related to the current global financial turmoil, and agreed to meet again in Beijing early next year. The two men shook hands as they held copies of the signed agreements bound in red silk brocade and exchanged gifts.

The two sides have agreed to triple direct passenger flights to 108 per week and expand services to a total of 21 Chinese cities, up from the current five.  The deals will introduce cargo flights, with up to 60 round trips per month crossing the 180-kilometre (112-mile) Taiwan Strait separating the island from China.

For the most part these stories have focused on the economic and political aspects of these deals, i.e., looking at how business pressures moved the two sides together, the thawing of relations this signals, and the backlash within Taiwan that’s emerged to what some perceive as capitulation to the PRC by Taiwan’s government. 

I’m interested, however, in the legal implications of these deals.  I haven’t been able to locate copies of the agreement texts, let alone English translations.  When they do become available, however, I’ll be looking to see if they have any new signals about the legal status of Taiwan vis-a-vis not just the PRC, but international law.

So Much Advice, So Many Advisors

by Deborah Pearlstein

If there’s one thing the new administration isn’t going to be lacking it is plans for how to correct the rule-of-law failures that have dogged U.S. counterterrorism policy in the post-9/11 world. As someone put it to me last week (hat tip to whomever it was!), you can’t swing a dead cat around Washington these days without running into a plan for how to close Gitmo.

Election Day Open Thread: Advice for the Next President

by Chris Borgen

Those of us in the U.S. are off to the polls, so I thought we could try doing an open thread today for comments and suggestions to the new President, whoever that is, concerning America’s foreign policy, with a particular emphasis on international law.  Obviously there has been alot of talk about getting out of Iraq, putting a definitive end to torture and/or closing Guantanamo.  What else should the new Administration be thinking about in regards to international law? What advice do our readers/ bloggers have?

I’ll start things off with the first comment…

Financial Instrument Equivalents That Don’t Turn Out to Be Legal Equivalents

by Kenneth Anderson

The front page of the Wall Street Journal, Nov. 3, 2008, has a very important, very well researched and reported, story (I think it’s behind the WSJ subscriber wall) on the breakdown of AIG’s risk models that led not so long ago to its collapse and rescue by the US government – tens of billions of dollars have poured into AIG so far, and there is not really an end in sight as yet.  The story is a global one because, of course, the funds supplied to AIG came from global sources, AIG is operationally a global insurer based out of NY, and the insurance coverage that AIG supplied was to a global market.  (Carrick Mollenkamp, Serena Ng, Liam Plevin, and Randall Smith, “Behind AIG’s fall, risk models failed to pass real world tests,” WSJ, Nov. 3, 2008, p. A1.  Great research.)

The point in passing I want to make is a few paragraphs into the article:

AIG relied on those models to help figure out which swap deals were safe. But AIG didn’t anticipate how market forces and contract terms not weighed by the models would turn the swaps, over the short term, into huge financial liabilities. AIG didn’t assign Mr. Gorton to assess those threats, and knew that his models didn’t consider them. Those risks have cost AIG tens of billions of dollars and pushed the federal government to rescue the company in September.

The insurance issued by AIG against the possibility of default on the mortgage securities, in other words, were understood by the finance people and their models in one way – but, as it turns out, not in the way that the contracts actually said.  The words in the contract actually said something else…

China Won’t Seek Bashir Deferral

by Kevin Jon Heller

This according to the Sudan Tribune:

A senior Chinese official suggested that his country has no plans to introduce a UN Security Council (UNSC) resolution suspending the indictment by the International Criminal Court (ICC) of president Omer Hassan Al-Bashir.

China’s special envoy to Africa Liu Guijin told the pro-government daily Al-Rayaam in a rare interview that he toured Washington, Paris and London to discuss the ICC move without elaborating on the outcome of these talks.

[snip]

The African Union, Arab League, Non-Aligned Movement (NAM) and Organization of Islamic Conference (OIC) called for invoking Article 16 which allows the UNSC to suspend the ICC prosecutions in any case for a period of 12 months that can be renewed indefinitely.

But Guijin said that the UNSC has received no formal request for invoking Article 16 of the Rome Statute.

“There are some ideas to freeze the decision [ICC] from the AU and Arab League but as of yet no country or organization formally introduced a resolution at the UN” he said in response to a question on whether China will table a resolution.

Western members of the UNSC such as US and France made it clear that they would veto such a resolution was introduced at this point in time.

This is very good news, and once again we owe the US our thanks.  (Given France’s waffling on the Article 16 issue, I think it’s premature to thank it, as well.)  Without the US’s open opposition to deferring the ICC’s prosecution — and yes, I still find it hard to believe that I am writing this sentence — I think there is little doubt that China would pursue a deferral resolution more aggressively.

Will the ICJ Have a U.S.-Style Nomination Fight? (We Can Only Hope)

by Julian Ku

I’ve only met Professor Christopher Greenwood of the Department of Law of the London School of Economics once, but I have long been an admirer of his work. He is a prolific and interesting scholar, as well as a leading practitioner of public international law. Greenwood’s credentials for the ICJ are impeccable (check them out here). But he is facing flak at home due to his legal advice, given to the chief UK lawyer during the run-up to the Iraq War, that no second United Nations Security Council Resolution was needed to invade Iraq.   

Needless to say, it would be a huge mistake for the UK to pull Professor Greenwood’s nomination (or pending nomination) simply because he expressed a legal opinion that was in the minority. Indeed, the ICJ desperately needs members like Greenwood who hold legal opinions that (at least sometimes) departs from the often monolithic public international law mainstream.  It would be refreshing to have a respected, intelligent, and thoughtful dissenter on the ICJ, and Greenwood certainly has the potential to be such a dissenter in at least some important cases.

Will Obama Reveal His Views on Raiding Syria? Nope.

by Julian Ku

People often complain here in the U.S. about how the nature of presidential campaigns make it hard for complex and sophisticated ideas to get out (and this is a gross understatement).  And the media is often blamed.  But the candidates are often just as much as fault. Case in point, Senator Obama’s silence on what he thinks of the deadly U.S. raid last week into Syria from Iraq in pursuit, apparently, of Al-Qaeda members.  McCain has issued a statement basically approving the action.  But Obama, who famously argued in favor of similar strikes into Pakistan, has refused to issue a statement one way or the other (at least as far as I know, if I am mistaken someone please let me know). 

As I understand it, Obama’s position is that since the U.S. has not actually acknowledged the raid, he should not comment on it. I think this is a useful dodge, but not convincing. He is not the President yet, and he is surely within his rights to express views about the zillions of confirmed news reports about the raid, and the anti-US protests in Syria, the Syrian government’s angry response, and Iran’s angry response.  Yes, yes, he’s got an election to win. And I know it is politically advantageous to say nothing.  But wouldn’t you like to know whether he thinks such raids are legal, appropriate, and/or necessary? That is the big question, and it would be nice if someone asked him, or if he would give us some hint of where he is going on this.

U.S. Court Convicts “Chucky” Taylor of Torture

by Julian Ku

“Chucky” Taylor, son of former Liberian President (and current war crimes defendant) Charles Taylor, was convicted yesterday in Florida federal court of committing torture when he was with his father in Liberia.

What makes Taylor’s conviction news (although only news overseas, apparently, since it didn’t make any of the leading U.S. newspapers) is that it is the first conviction under the 1994 Extraterritorial Torture Statute, 18 U.S.C. 2340 and 2340A, which was enacted to implement U.S. obligations under the Convention Against Torture (for an interesting profile of Chucky in Rolling Stone, see here).  This statute has a very broad scope and is one of those few U.S. criminal statutes that appears to embrace a theory of universal jurisdiction.  Typically, U.S. criminal statutes confine themselves to prescriptive jurisdiction based on territory, effects, nationality, etc.  But 18 USC 2340(A)(b) makes clear that this statute applies to acts committed in a foreign country whether or not the defendant is a U.S. national or whether or not the victim is a U.S. national.

October Surprise: Obama Has Foreign Relatives!

by Peter Spiro

Obama has an aunt who is present in the United States in violation of the immigration laws.  So what?  Lots of American citizens and legal immigrants have undocumented alien family members.  See this report from the Urban Institute on so-called mixed-status families, that is, nuclear families in which some members are citizens, some not.  For example, the study estimates that 70% of undocumented immigrants who head up households in New York have citizen children.

It’s hard to blame someone for having an illegal alien relative.  What are they supposed to do — turn the person in?  As a visa overstayer, Obama’s aunt is here in violation of the immigration laws, but that by itself does not constitute a crime.  Even if Obama had been involved — say, let her stay at his home — that wouldn’t have been a crime, either.  Aiding and abetting offenses in the illegal immigration context are found only with respect to smuggling and employment.

Indeed, in Obama’s case, rather than trying to nail him for his aunt’s status, the more powerful rap would be, why didn’t he do anything to help?  But he has a pretty persuasive answer to that, given the thinness of his connection to his father.

In the end, the only real electoral damage here would be with the marginally xenophobic, those voters who would vote for Obama but are tripping on the unfamiliarity.

Sundays with Stendhal 2, Of Politics and Literature

by Kenneth Anderson

At risk of exhibiting the same cynicism of which Stendhal himself was accused, a famous passage on politics and newspapers and literature from The Red and the Black, Book Two, chapter 52, “The Discussion”:

Here the author would have liked to insert a page of dots. ‘That will not look pretty,’ says the publisher, ‘and for so frivolous a work not to look pretty means death.’

‘Politics,’ the author resumes, ‘are a stone attached to the neck of literature, which, in less than six months, drowns it.  Politics in the middle of imaginative interests are like a pistol-shot in the middle of a concert.  The noise is deafening without being emphatic.  It is not in harmony with the sound of any of the instruments.  This mention of politics is going to give deadly offence to half my readers, and bore the other half, who have already found far more interesting and emphatic politics in their morning paper.’

‘If your characters do not talk politics,’ the publisher retorts, ‘they are no longer Frenchmen of 1830, and your book ceases to hold a mirror, as you claim ….’

Ip — “Two Narratives of Torture”

by Kevin Jon Heller

Interested in how popular culture constructs narratives about torture?  Fascinated by the ticking time-bomb scenario? Like Battlestar Galactica and/or 24?  Then do I have an essay for you, written by my friend and colleague John Ip:

This article is about two different narratives or accounts of torture. Each narrative signifies a certain view about the legality and wisdom of employing torture and coercion in interrogation. Since the terrorist attacks of September 11, 2001, the use of torture and coercion has become a topic of genuine debate, despite a sizable corpus of domestic and international law prohibiting those very practices.

The first narrative of torture is centered on the ticking bomb scenario, the hypothetical that has frequently been deployed in the academic arena to overcome the absolutist nature of the legal prohibition on torture. Since 9/11, the ticking bomb scenario has also appeared in various official government documents and statements that assert the legality of torture and coercive interrogation techniques. It has also been replicated in popular culture, the most notable example being Fox’s counterterrorism drama, 24.

A second narrative of torture challenges the validity and usefulness of the ticking bomb scenario. Various academic commentators have unpacked the assumptions underlying the scenario. Certain government actors, most notably the Federal Bureau of Investigation and military lawyers, have consistently rejected the logic of the ticking bomb scenario, and opposed the use of torture and coercion in interrogation. This second narrative also has a popular culture representative in the form of Sci-Fi Channel’s Battlestar Galactica. Thus, the same battles that have been fought over the treatment of detainees in the “war on terror” in the legal and political arenas by real world actors since 9/11 are also being fought at a discursive level in popular culture.

Check it out!

Take a Virtual Tour of David Hicks’ Cell at Guantanamo Bay

by Kevin Jon Heller

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As part of its ongoing efforts to educate Americans about the national shame that is Guantanamo Bay, Amnesty International is touring the country with a replica of David Hicks’ cell:

AIUSA’s prison cell replica includes a steel toilet, florescent lights and a sliding metal door. In addition, visitors may record a 30-second reaction video that will be posted on youtube.com and tearitdown.org, as well as sign the global petition to shut Guantanamo down. On the outside of the cell are large LCD screens showing a timeline of illegal U.S. detentions and torture-related facts.

This is a wonderful strategy.  It’s one thing to read a description of what it’s like to be imprisoned at Guantanamo Bay.  It’s another thing to experience it for yourself, even if you get to go home when you start to feel claustrophobic.

A virtual tour of the cell is available here.

New Version of Situational Gravity Essay

by Kevin Jon Heller

I have posted a substantially rewritten version of my essay “Situational Gravity Under the Rome Statute” on SSRN.  Here, again, is the abstract:

The ICC is often derided as the “African Criminal Court.” That criticism cannot easily be dismissed: all of the Office of the Prosecutor’s (OTP) current investigations focus on African states — Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan — and it is analyzing the situations in three other African states, Cote D’Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq — the latter despite its conclusion that there was a “reasonable basis to believe” that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment.

The OTP has not denied — nor could it — that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims.

This essay critiques the OTP’s quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that cause “social alarm” in the international community; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

I normally wouldn’t mention an essay twice, but readers might be interested in the reason I had to rewrite this one…