Archive for
June, 2009

The ICC’s Weakening Case of Genocide Against Sudan

by Julian Ku

The ICC’s case in support of the genocide charge is taking a beating, as this Washington Post article details.  The problem might be Moreno-Ocampo’s erratic leadership, or it could be the ICC as a whole has too many brilliant ambitious lawyers with not nearly enough to do.  So they are quietly undermining Moreno-Ocampo by resigning or by writing articles critical of him.  In any event, it is hard to imagine the amount of damage that the ICC will sustain if it eventually has to withdraw the genocide charges against Sudan. But it could happen.  And then what?

Chicago Journal of International Law Symposium on Great Power Politics

by Kenneth Anderson

Ordinarily I wouldn’t post the table of contents for a symposium in an international law review, but let me herewith make an exception, for OJ-promotion …  Note that our very own Chris Borgen has a piece on a subject in which he has established himself as a leading expert – self-determination in such cases as Kosovo and South Ossetia.   I’ll let Chris post up the link to SSRN and talk about it, rather than try to summarize it myself.

Overall, it’s an impressive group of authors – well worth checking out; most of the pieces appear to be up at SSRN, and I hope CJIL will put up direct links soon.  I also have a piece in the symposium, on the “parallel” security regimes of UN collective security and the US security guarantee, which I discuss a bit below the fold ….

Supreme Court Year-End Review

by Roger Alford

With the Supreme Court term now complete, I thought it would be useful to give a brief year-end review of the Court’s decisions. The Supreme Court produced no blockbuster cases this year on any subject related to our discipline. It was truly a sleeper year. There were three cases addressing immunity; two cases addressing asylum, one case touching on federal preemption, one on executive power, and one on international trade. All the cases addressed statutory interpretation, and only one involved treaty interpretation. None of the cases will be long remembered, with only Iqbal having potential long-term significance for international practitioners.

Here is a brief synopsis of the relevant eight cases:

More from the Detention Front

by Deborah Pearlstein

Various developments on the resolution-of-Gitmo front to discuss. First a quick note on a recent signing statement.  Then on to rumors of a contemplated executive order on detention issues.

Kosovo Joins IMF and World Bank

by Julian Ku

This would otherwise be a non-event, except for the fact that Kosovo’s accession to the IMF and World Bank is a further blow to Serbia’s ongoing case to deny Kosovo legal recognition as an independent state.  Should international economic institutions like the IMF and World Bank wait for the ICJ to rule on Kosovo’s status before taking such a step?  Maybe.  But the IMF and World Bank are controlled by Kosovo’s friends and protectors (the U.S. and the E.U.) and they have no formal obligation to defer to the ICJ’s judgment. And let the international aid money start flowing!

Dual Citizenship and Elective Office (Iraq Edition)

by Peter Spiro

Iraqis are wondering if their legislators should be permitted to hold dual citizenship (see here).  Current law permits multiple nationality but not among those holding “senior positions” in the government.  Some want to clarify the bar to include parliamentarians.  There’s apparently some concern that dual citizenship gives corrupt officials an escape hatch, as in, they have someplace to flee when the prosecutors come knocking.

But that would seem more an issue for extradition regimes than about dual citizenship.  The issue is being debated elsewhere, mostly in countries with longstanding prohibitions on office-holding by dual nationals, often pursuant to express constitutional provisions (among them Australia, Jamaica, Bangladesh, Malawi, Nigeria, and Latvia, as well as in Hong Kong). In contrast to Iraq, several of these regimes are coming under attack from the opposite direction, with mounting pressure to eliminate ineligibility (see examples here, here, and here). The problem is that repealing the restrictions will typically look like a loser issue from the sitting legislator’s perspective.  As one Jamaican editorial put it, “Any overhaul, on the face of it, will require not only legislative action, but approval by the people in a referendum. But a governing party, especially one with a slim majority, is likely to consider a plebiscite politically risky.”

On the merits, ineligibility is starting to look pretty silly.  Let voters decide if they trust a dual citizen with legislative authorities.  Why deprive them of a choice?

The ICC Welcomes Its 109th Member

by Kevin Jon Heller

After more than a decade of legal wrangling, Chile has finally ratified the Rome Statute.  Chile’s accession means that every country in South America is now a member of the ICC — a significant accomplishment.

Congratulations, Chile!

A New Supreme Court Case on Treaty Interpretation

by Duncan Hollis

Most Court-watchers spent the day examining the Ricci case (a.k.a. the New Haven Firefighters’ case), given its racial dimensions and the fact that Judge Sotomayor participated in the Second Circuit opinion that the Court overturned.  I, however, was more interested to see that the Court granted certiorari today in another Sotomayor-related case, Abbott v. Abbott.  This is the Fifth Circuit case I mentioned last week, addressing the same treaty interpretation question that motivated Judge Sotomayor to issue a dissenting opinion in the 2000 Second Circuit decision, Croll v. Croll.  Here’s how the Solicitor General described the question presented by Abbott in its amicus brief recommending cert.:

Whether a ne exeat order, which prohibits either parent from removing a child from the country without the other parent’s consent, confers a “right of custody” within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, thus allowing a parent to seek to have a child who was removed to another country in violation of the ne exeat order returned to his or her country of habitual residence.

The Fifth Circuit in Abbott agreed with the Second Circuit in Croll (as well as with Fourth and Ninth Circuit decisions), reading the Hague Convention to not consider ne exeat orders as conferring custodial rights.  In contrast, Judge Sotomayor, the Eleventh Circuit, and the Executive Branch have all offered a competing reading of the treaty’s obligations, finding that ne exeat orders do convey custodial rights. 

Abbott is thus a case for U.S. international lawyers to follow in the coming term.  In addition to resolving the circuit split, it will be one of the few (perhaps the first?) international family law cases to reach the Court.  More broadly, given the centrality of treaty interpretation to the case itself, I would expect the opinion to opine on what method(s) of treaty interpretation are proper and to what extent the Executive’s interpretation of the treaty deserves deference from the Court.  For my part, I’m also hoping that somewhere in the Court’s opinion, the justices will be kind enough to make clear the centrality of the Vienna Convention on the Law of Treaties’ interpretative rules (Articles 31 and 32), just as Judge Sotomayor did in her own dissent back in 2000.

Honduras – Coup or Not? And What’s in a Word?

by Kenneth Anderson

Events in Honduras occurred while I was in a plane on a long flight, so I do not have enough of a grasp of what the facts are, or appear to be, to offer an opinion as yet.  However, I wanted to note that, whatever they are exactly, they seem to have touched off an interesting, and not inconsequential debate, over what constitutes a “coup d’etat” and what constitutes a military coup.  I have simply not delved sufficiently into the facts to offer an opinion, but I thought it would be, umm, unseemly for us here at OJ not to make note of these events ….  Is it a coup or not?  Why does it matter, and should it?  ….

New Essay on Completion Strategies

by Kevin Jon Heller

I have posted a new essay on SSRN: “Completion Strategies and the Office of the Prosecutor.”  The essay is my contribution to a multi-year research workshop at Catholic University Leuven on the history of the prosecutor in international criminal law; the workshop will culminate in a book to be published by Oxford in 2010.  Here is the abstract:

With the exception of the ICC, which is intended to be a permanent institution, all of the past or present international criminal tribunals have either completed their work or are scheduled to complete their work in the relatively near future. In some cases, such as the Nuremberg Military Tribunal, the Office of the Prosecutor (OTP) was intimately involved in planning the final phase of the tribunal’s existence. In others, such as the Special Panels for Serious Crimes in Timor-Leste, the OTP played little or no role in the decision-making process. In every case, though, the decision to close a tribunal has had a significant impact on the OTP’s ability to fulfill its mandate, however defined.

This essay explores that impact. Section 1 describes the various strategies that the tribunals have pursued to complete their work. Section 2 provides a comprehensive analysis of the ways in which those strategies have threatened, and continue to threaten, the legitimacy, independence, and effectiveness of the OTP. Finally, Section 3 discusses the lessons that current and future tribunals can learn from those completion strategies – a kind of “best practices” guide, albeit one that recognizes that it is impossible to construct a one-size-fits-all completion strategy.

The essay will almost certainly undergo a number of revisions before it is finalized.  So, as always, comments are welcome!

Cross Border Aspects of the US Treasury Department’s White Paper on Financial Regulation Reform

by Kenneth Anderson

I spent the plane flights back and forth to Prague over the weekend mostly reading, uninterrupted and straight through, the Treasury Department’s new white paper, Financial Regulatory Reform: A New Foundation: Rebuilding Financial Supervision and Regulation (June 2009).  (I’ve linked here to the 88 page pdf, which curiously seems to be undated; a useful resource overall is the new Treasury Department website, financialstability.gov.)  I’ll comment on the US-specific aspects of the proposed regulatory reform (which cuts across a wide range of regulatory matters) over at Volokh, but here I wanted to comment briefly on the international and cross border aspects of the Obama administration’s reform proposal.

The specifically transborder aspects of the reform proposal are one of the five fundamental principles for regulatory reform underlying the proposal.  They fall into broad categories that approximately mirror what that the proposal says domestically:

  • raise common regulatory standards for financial institutions, particularly capital standards and liquidity buffers;
  • raise common regulatory standards for supervision of banking institutions but also any other financial institution systemically connected to the financial system, particularly with regards to leverage, but also with regards to compensation and attendant incentives to risk-taking and moral hazard;
  • undertake financial markets regulatory reform, particularly to create conditions for the emergence of central exchanges for credit derivatives, regulation of securitization, and other financial markets reforms;
  • raise and develop common standards for accounting and measurement of financial indicators, including fair value (‘mark to market’) accounting; and
  • various other matters, such as the role and regulation of rating agencies (some of these other matters appear to be quite unrelated to financial regulation reform as such, e.g., terrorism financing).

As far as the proposals go on their own, probably the most striking aspect to those who follow the international debates is the lack of a position on the so-called “rules” versus “principles” debate.  This was almost certainly a deliberate agnosticism on the issue ….

President Obama (Hypocritically?) Asserts Power to Ignore Federal Statutes

by Julian Ku

Remember the dangerous George W. Bush whose outrageous executive power arguments were leading us toward a Nazi-style dictatorship? It’s a good thing we elected a new President who… also believes that he has the inherent constitutional power to ignore certain federal statutes.  Last week (on Friday afternoon, of course), President Obama released this signing statement:

…[P]rovisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

These provisions basically require US administration officials to pursue certain policies at the World Bank and IMF and to report to Congress after, and sometimes before, such policies are pursued.  It is hardly earth-shattering stuff, but it reveals that Obama too believes that he may ignore federal statutes which encroach on his exclusive constitutional powers as President.  The statutory language in these provisions are crystal-clear and no amount of creative statutory interpretation can save him here.  His only recourse is to assert that, as President, he has the power to ignore unconstitutional federal statutes.  

This is, in my judgment, the correct view although it is hardly a matter of wide consensus among lawyers and scholars.  For instance, where exactly is the textual authority for President Obama to conduct foreign diplomacy and negotiations free from congressional interference?  In any event, here is an opportunity for him to be roundly denounced by the ABA and the left blogosphere for asserting the power to ignore the law.  Or they can admit Bush was right on these sorts of things, or at least, that Bush is not a criminal for asserting such a power.  I look forward to their response!

Is it Time to Facilitate Cyberwar?

by Duncan Hollis

The New York Times (along with much of the mainstream media) has “rediscovered” cyberwar of late (see here, here, here, and here).  Today’s story revives longstanding differences between Russian government proposals to regulate cyberwarfare by treaty versus existing U.S. preferences to place the issue in more informal law enforcement cooperation networks:

Russia favors an international treaty along the lines of those negotiated for chemical weapons and has pushed for that approach at a series of meetings this year and in public statements by a high-ranking official.

The United States argues that a treaty is unnecessary. It instead advocates improved cooperation among international law enforcement groups. If these groups cooperate to make cyberspace more secure against criminal intrusions, their work will also make cyberspace more secure against military campaigns, American officials say.

“We really believe it’s defense, defense, defense,” said the State Department official, who asked not to be identified because authorization had not been given to speak on the record. “They want to constrain offense. We needed to be able to criminalize these horrible 50,000 attacks we were getting a day.”

That doesn’t seem consistent with earlier reports on the Administration’s position:

As Mr. Obama’s team quickly discovered, the Pentagon and the intelligence agencies both concluded in Mr. Bush’s last years in office that it would not be enough to simply build higher firewalls and better virus detectors or to restrict access to the federal government’s own computers.

“The fortress model simply will not work for cyber,” said one senior military officer who has been deeply engaged in the debate for several years. “Someone will always get in.”

Hmmm.  I wonder which U.S. position will prevail here?  As for my own views, I’m already well on the record in favor of an extended conversation among governments about how international law applies to military uses of cyberspace, whether in a defensive or offensive capacity.  That said, I’m not sure a global treaty is the first, let alone the second, third, or fourth step in this process.  We’ve still got a way to go for states to work out what the technology can do (i.e. what’s similar to kinetic weaponry and what can we now do that kinetic weaponry could never achieve), how anonymous this technology really is, and where its usage will give rise to the greatest concerns for states, their militaries, and civilian populations.  Given the host of uncertainty and confusion now surrounding these issues, I think it makes more sense for regional groupings of states (e.g., NATO) or even non-governmental IHL experts to address these issues first, before trying to get every nation state onto the same page.  And if there has to be a global conversation from the get go, I’d favor it producing political commitments rather than some grand scale treaty (my love for those instruments notwithstanding).  As a result, I’m sympathetic to U.S. resistance to these Russian proposals. 

On the other hand, the Administration’s stonewalling still confuses me.  And, I wonder if we’re not too focused on the threat of cyberwarfare.  Might we want to consider international regulation that not only restricts cyberwar in certain contexts, but actually permits (or even facilitates it) in other situations?

Debating “Minilateralism”

by Chris Borgen

Moises Naim of Foreign Policy has an essay in the new issue called “Minilateralism: The magic number to get real international action.” His piece has spawned reactions from the bloggers at FP.com. Naim’s essay is the latest volley in a debate on “big” or “small” multilateral action should be; however, although he and other bloggers do a good job setting out the advantages (and some weaknesses) of “minilateralism,” the issues of normativity and legality are all but ignored.

Naim begins by setting out the negotiation problems of what one could call “big” multilateralism:

When was the last time you heard that a large number of countries agreed to a major international accord on a pressing issue? Not in more than a decade. The last successful multilateral trade agreement dates back to 1994, when 123 countries gathered to negotiate the creation of the World Trade Organization and agreed on a new set of rules for international trade. Since then, all other attempts to reach a global trade deal have crashed. The same is true with multilateral efforts to curb nuclear proliferation; the last significant international nonproliferation agreement was in 1995, when 185 countries agreed to extend an existing nonproliferation treaty. In the decade and a half since, multilateral initiatives have not only failed, but India, Pakistan, and North Korea have demonstrated their certain status as nuclear powers. On the environment, the Kyoto Protocol, a global deal aimed at reducing greenhouse gas emissions, has been ratified by 184 countries since it was adopted in 1997, but the United States, the world’s second-largest air polluter after China, has not done so, and many of the signatories have missed their targets.

He then moves on to his suggestion:

The pattern is clear: Since the early 1990s, the need for effective multicountry collaboration has soared, but at the same time multilateral talks have inevitably failed; deadlines have been missed; financial commitments and promises have not been honored; execution has stalled; and international collective action has fallen far short of what was offered and, more importantly, needed. These failures represent not only the perpetual lack of international consensus, but also a flawed obsession with multilateralism as the panacea for all the world’s ills.

So what is to be done? To start, let’s forget about trying to get the planet’s nearly 200 countries to agree. We need to abandon that fool’s errand in favor of a new idea: minilateralism.

By minilateralism, I mean a smarter, more targeted approach: We should bring to the table the smallest possible number of countries needed to have the largest possible impact on solving a particular problem. Think of this as minilateralism’s magic number.

For example, in trade the G-20 comprises about 85 percent of international trade. Worry about negotating a treaty among those twenty states, not the nearly 200 states, most of which have very little impact on international trade.

Among the various responses…

Media Development Loan Fund

by Kenneth Anderson

The organization whose board meeting I’m attending in Prague is the Media Development Loan Fund, and you can see its newly revamped website at mdlf.org.  It is a media assistance organization, one that focuses on helping media companies – newspapers, radio, TV, internet – in the emerging market and developing world that provide a sizable amount of quality newsreporting.  Unlike most such organizations, however, MDLF focuses on investing money in the organizations at subsidized rates.  It’s essentially a non-profit, mission-driven private equity fund.  That means that it has to address issues of mission (what kind of media to support, where, etc.), finance and business management (if we don’t recover our investments, we will go out of business), and nonprofit governance (how do you measure mission success, e.g.).

I’ve been the board chair for a very long time, but it looks as though I might finally step down – really, someone shouldn’t be the chair of a nonprofit board for so long, so the turnover would be good for the organization and good for me, as I’d like to write about some of the issues in finance and development, media business models, nonprofit governance, and the like that I don’t feel completely comfortable writing about academically when chairing the board of the largest media assistance organization (some $50 million in investments, depending on you measure the portfolio in the downturn) you’ve probably never heard about.   It’s a great organization, though, and does great work in areas of free expression, transparency, access to information, quality journalism – vital areas in the support of open societies.

The PTC Grants Leave to Appeal — And Indulges in a Bit of Revisionist History

by Kevin Jon Heller

A quick update on the OTP’s efforts to include genocide charges in Bashir’s arrest warrant.  Pre-Trial Chamber I has now granted leave to appeal the issue I’ve discussed before — whether it misunderstood Article 58’s “reasonable grounds” requirement when it rejected the genocide charges.

It’s a very defensive decision, almost certainly written by Judge Steiner, who is the only holdover from the previous decision.  (The new PTC I includes Judge Sonji Monageng, from Botswana, and Judge Cuno Tarfusser, from Italy.)  According to the PTC, “the Majority did not suggest that, in order to establish the existence of reasonable grounds in relation to genocidal intent, the Prosecutor must show that the only reasonable conclusion from the facts proven by the Prosecutor is the existence of genocidal intent beyond reasonable doubt” (p. 6):

[Q]uite the contrary, the Majority only required the Prosecutor to demonstrate that the only reasonable conclusion from the facts proven by the Prosecutor is that there are “reasonable grounds to believe” in the existence of genocidal intent (article 58 of the Statute evidentiary standard) (p. 7).

This is revisionist history at its best.  The PTC suggested precisely what it now denies it suggested.  Here is paragraph 159 from the original decision:

[T]he Majority considers that, if the existence of a GoS’s genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.

That is pretty clear: if it is reasonable to conclude from the Prosecution’s evidence anything other than the existence of genocidal intent, Article 58’s “reasonable grounds” test is not satisfied.  And that is simply incorrect.

Even if we grant the PTC its revisionist history, however, the Majority’s original decision is still unsound…

An NBA First!

by Kevin Jon Heller

Omri Casspi has become the first Israeli basketball player to be selected in the first round of the NBA draft.  Casspi was drafted #23 by the Sacramento Kings, which also feature players from Spain (Sergio Rodriguez), Argentina (Andres Nocioni), and Slovenia (Beno Udrih).

Basketball fans know that Casspi’s Israeli team, Maccabi Tel Aviv, is one of the world’s best.  The team has won 48 Israeli National Championships — including an incredible 23 straight between 1970 and 1992 — and has won the European Cup five times since 1977.

Three Israelis have been selected in the second round of the NBA draft, but none ever played in the league.  So when Casspi sets foot on an NBA floor, that will be a first, as well.

Congrats to Casspi and to Israeli basketball.

Adios Spanish Universal Jurisdiction?

by Chris Borgen

It seems likely that Spain is about drastically curtail its universal jurisdiction law–the law that had been used by Magistrate Baltasar Garzon to go after Augusto Pinochet–such that it really won’t be universal jurisdiction at all.  While some (many?) of my international law colleagues may view this as a step backwards, I welcome this adjustment as a prudent move that will foster the international rule of law.  More on that in a moment, First, here’s the background from the BBC:

Currently, 10 cases from five continents are being investigated by Spanish judges, under the principle of “universal jurisdiction,” which holds that some crimes are so grave that they can be tried anywhere, regardless of where the offences were committed.

In a recent statement, almost 100 organisations collectively praised Spain’s “pioneering approach,” gushing that the country “should feel proud of itself” for becoming a reference point for other nations.

Except, Spain’s left-leaning government sees things rather differently.

In parliament, it is sponsoring a controversial change in the law, which would limit the future scope of universal jurisdiction to cases in which (i) the victims are Spanish, (ii) the alleged perpetrators are in Spain, or (iii) some other clear link to Spain can be demonstrated.

On Thursday, the proposal was approved by lawmakers in the lower house by an overwhelming 341-2 vote, with three abstentions. Senate approval is seen as a formality.

Human rights lawyers claim that the government of Spain is reacting to pressure from other governments. The BBC continues…

O’Donnell on Shari’ah and Jurisprudence in Islam

by Chris Borgen

Frequent Opinio Juris commentor Patrick O’Donnell has an informative post at Ratio Juris about shari’ah and jurisprudence in Islam. It begins:

Having recently introduced the subjects of constitutionalism and democracy vis-à-vis Islam, I thought it would help to say a few basic things about Sharī‘ah and fiqh, in particular as they have bearing upon our concerns about human rights and democracy, concerns of course common to Muslims and non-Muslims alike.

The post covers alot of ground, ranging from how the function of Shari’ah may be analogized to natural law as described by the Stoics to the relationship of Shari’ah to democratic theory.  Check it out.

In Defense of Britney. (Really.)

by Kevin Jon Heller

So, it looks like Britney Spears may be back on the silver screen in the near future — in a Holocaust movie:

Spears… is reportedly reviewing a script for a film tentatively titled “The Yellow Star of Sophia and Eton.” The flick would see her playing a character named Sophia LaMont who travels back in time to fall in love with a Jewish concentration camp prisoner named Eton. In a tricky critique of ongoing anti-Semitism, the script concludes with the lovebirds travelling back to the present day before being killed by Nazis.

Jewish groups are, predictably, less than pleased:

Charlotte Knobloch, president of the Central Council of Jews in Germany, has said she is horrified at the prospect of Britney making a Holocaust film. “In films that deal with the Holocaust, the script should be carefully chosen and the cast picked with care,” Knobloch told the German tabloid Bild. “It is reprehensible to combine the issue of the Holocaust with Britney Spears in an attempt to secure financing for the film ‘The Yellow Star of Sophia and Eton.’ Ethical considerations should have priority.”

I can certainly understand the reaction, and there are all kinds of things that could go wrong with the project — assuming the movie ever gets made, which is always a big if.  But, assuming that the script is good, I agree with John Aravosis at AMERICAblog that a Holocaust movie with Britney Spears in it would expose an entire generation of young people — both in the US and abroad — to a historical event that they might otherwise never hear about, much less have any interest in.  That seems like a very good thing.

Besides, a good actor doesn’t guarantee a good Holocaust movie.  The Boy in the Stryped Pajamas starred David Thewlis and Life is Beautiful starred Roberto Benigni, and they were both awful, offensive movies.  By contrast, The Grey Zone starred David Arquette of Scream fame — and it was terrific, one of the most underrated movies of its kind.

Harold Koh Confirmed

by Chris Borgen

The Senate vote was 62-35.

Here’s the story at Foreign Policy.com.

PS to the Koh Discussions, Eric Posner at Volokh

by Kenneth Anderson

Eric Posner is putting up two posts on the Koh debates, over at Volokh Conspiracy (first one is here, second is linked to it).  I’ll be lite-blogging the next little bit, as I have board meetings for a nonprofit private equity fund for the next few days in Europe.  I want to start discussing more finance and development finance topics when I get back, some of them general questions such as whither microfinance in the global recession, and some of them much more narrow, such as ways to hedge foreign currency exposure if you are a little itsy-bitsy private player in a not highly traded currency.  And then there are the really big questions – IMF special drawing rights and the future of the de facto global reserve currency.  I am interested – with the encouragement of my co-bloggers – in devoting more time at OJ in my posts, and encouraging anyone else I can to do so as well, on international economic law in addition to the things we already do.

A Task for Koh: Ratification of the Convention on the Rights of the Child

by Julian Ku

Congrats to new Legal Advisor (or almost-Legal Advisor) Harold Koh!  And it looks like he will have plenty of stuff to do.  Among other things that will be on his agenda:  Submitting the Convention on the Rights of the Child to the Senate.  According to US Ambassador to the UN Susan Rice, this is going to happen.  At least she sort of said that.

The Obama administration is reviving efforts to have the United States sign onto a global children’s rights treaty ratified by every U.N. member except the U.S. and Somalia, the U.S. ambassador to the United Nations, Susan Rice, said Monday.

Administration officials are actively discussing “when and how it might be possible to join,” Rice, a Cabinet-level official, said while visiting a school in Harlem and fielding a teenager’s specific question about the U.N. Convention on the Rights of the Child.

She did not provide a specific timetable for the decision and has said previously only that the administration would conduct a legal review of the treaty.

But during her a brief question-and-answer session with 120 junior high school students at Harlem Children’s Zone, a nonprofit educational facility, Rice acknowledged that the effort was long overdue given that “the only two countries” that are not part of the treaty are the United States and the lawless Horn of Africa nation.

Can’t wait for the Koh cover letter to the Senate on the domestic impact of this treaty, and the reaction to it in the blogosphere.

Koh Update: Cloture Motion Passes [UPDATED]

by Chris Borgen

Foreign Policy.com reports:

“Cloture passed on a 65-31 vote,” a Congressional source relays at 11:30am. “There was applause in the Senate gallery after the vote was announced. Republicans are threatening to exercise their right to use all 30 hours of floor debate before permitting a final vote, so Koh may not be formally confirmed until tomorrow.”

See also IntLawGrrls.  Yesterday, by the way, Senator Lugar issued a statement supporting Koh’s confirmation.

It remains to be seen whether the 30 hours of floor debate will be used or not.

UPDATE:

Here’s the breakdown of the vote and various statistical charts.

Hat Tips: Stephanie Farrior (Vermont Law School) and Catherine Powell (Fordham Law School)

The End of the Koh Wars: What Did It All Mean?

by Julian Ku

I have remained largely silent on Harold Koh’s confirmation battle, which is probably about the end this week with a vote in the Senate.  I assume that Koh will be confirmed (because I don’t think the Senate Democrats would hold a vote if they didn’t have the votes).  And part of me is glad because, as many of this blog’s contributors have argued, Koh is a good and honorable guy who really believes in public service and is more than qualified for the job.

But part of me is worried because I disagree with Koh on quite a few things that will relate to his new job. I don’t relish watching him shepherd various new self-executing treaties through the Senate without any protection for federalism while at the same time shaping the US government’s view on customary international law in ways that will (in my view) overly constrain US actions abroad.  I don’t know if Koh will succeed in doing all these things, but even his supporters would concede that this is the type of stuff he wants to accomplish.  

Perhaps more importantly, what will be the long-term consequence of the extraordinary public debate over Koh’s nomination?  My co-blogger Peter Spiro suggests it is simply going to be the last stand of “sovereigntism” (which would be sad because Peter invented this term).  I think that this is really only the beginning of the fight over what is the proper relationship between international law and domestic policymaking.  Harold Koh will be confirmed, but it will probably take close to 60 Democratic senators to get him there, and probably a couple of Republicans as well.  If it is going to be hard for Koh now, just wait until the Democrats lose one or two more seats in the Senate.  Or if President Obama’s popularity falls below 50 percent.  Koh and his supporters will win this battle, but I don’t think this is the end of the war.

Is Obsessing Over Genocide in Sudan Preventing a Peace Deal?

by Julian Ku

Former Bush Sudan envoy and USAID chief Andrew Natsios has a clearheaded, wise, and knowledgeable op-ed today on the prospects for peace in Sudan.  He makes a couple of points that lawyers who only think of Sudan as a proving ground for the ICC should keep in mind:

1) Sudan is a tragedy, but it is probably not an ongoing genocide:

First, let’s consider the situation. Some policymakers continue to call Darfur an ongoing “genocide,” but in fact, the conflict has descended into anarchy. “Darfur today is a conflict of all against all,” Rodolphe Adada, the joint African Union-United Nations special representative, told the U.N. Security Council in April. Between Jan. 1, 2008, and March 31, 2009, he found some 2,000 fatalities from violence, one third of them civilian. The death of some 700 innocent civilians over a 15-month period, while morally repugnant, is not genocide. It is a low-level insurgency. More civilians died in southern Sudan during the past six months than in Darfur over the past 15 months. Despite such facts and extensive U.N. Security Office reports showing that genocide is not an accurate description, President Obama continues to use that weighted term.

Indeed, it is striking that President Obama, who is pretty cautious (perhaps way too cautious) in criticizing human rights practices of certain regimes he wants to make a deal with, like Iran, has no problem casually referring to Sudan as an ongoing genocide. It probably reflects the fact that he has relatively little interest in getting involved in Sudan.

2) The US position that there is an ongoing genocide is undermining efforts to reach a peace deal

The Obama administration should consider reducing sanctions on Sudan only in exchange for concrete Northern government concessions on critical issues. The North, of course, has a mixed history in carrying out its commitments, but its cooperation is key to securing peace. Yet U.S. use of the term “genocide” is reducing our diplomatic options. In the face of genocide, the United States could hardly act as a neutral mediator. No politician wants to explain why he or she remained complacent in the face of slaughter.

3) The ICC arrest warrant for Sudan’s leader is also risking a renewed war, and even worse atrocities.

Using the term “genocide” feeds the International Criminal Court’s indictment of President Omar Hassan al-Bashir — which has made meeting with him politically explosive. Some advocates insist that no American diplomat talk with him. How do you mediate a peace agreement if you can’t speak to one side’s leader? At this crucial moment, the long-suffering Sudanese people need unified American leadership behind a pragmatic policy of engagement. Instead, they have campaign rhetoric and diplomatic paralysis. We, and they, are headed toward disaster if we do not change course.

“We” are not headed for a disaster, if “we” means everyone outside of Sudan.  Since outside military intervention is not going to happen, the only way to begin to end the ongoing tragedy in Sudan is a peace deal.  And a peace deal will happen despite, rather than because of, efforts of many international NGOs and the U.S. government.

Legal Adviser Nominee Harold Koh Should Be Confirmed

by Laura Dickinson

[ Laura Dickinson is the Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.]

After three months of unwarranted delay, the cloture vote on State Department Legal Adviser nominee Dean Harold Hongju Koh is finally scheduled for tomorrow. (See Chris Borgen’s post, here.) Predictably, critics on the right are gearing up with robocalls and email campaigns aimed at painting Dean Koh as an extremist who wants to subvert American democracy through so-called “transnationalism.”

But as I have blogged previously (and Hari Osofsky did earlier today at IntLawGrrls), nothing in Dean Koh’s background or views supports any such accusation. To the contrary, Koh’s views are firmly within mainstream legal thought. Koh, currently the Dean and the Gerard C. and Bernice Latrobe Smith Professor at Yale Law School, is one of the nation’s leading lawyers and scholars, and he has served with distinction in both Republican and Democratic administrations, first in the Office of Legal Counsel during the presidency of Ronald Reagan and second as the Assistant Secretary of State for Democracy, Human Rights, and Labor under President Bill Clinton – a position in which, having been confirmed unanimously by the U.S. Senate, he received praise from Democrats and Republicans alike. He clerked for two judges appointed by Republican Presidents, Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. He has argued before the U.S. Supreme Court and testified in Congress more than thirty times. And he has authored or co-authored eight books and more than 150 articles, has won more than thirty awards for his litigation, and has earned two life-time achievement awards (from the American Bar Association and Columbia Law School) before reaching the age of 45. Moreover, he has sued both democratic and republican administrations — and has advanced the cause of Cuban refugees fleeing Fidel Castro’s regime. Conservative students and Federalist Society members from Yale Law School support his candidacy.

Fair-minded Senators should flatly reject right-wing attempts to raise the red herring of transnationalism to scuttle Koh’s confirmation… [Continue reading after the jump]

Gabriella Blum Comments on the Role of the Judiciary in Israel in Counterterrorism

by Kenneth Anderson

(Note from Ken: OJ has been very pleased to have Amos Guiora guest-blogging with us last week, offering a series of posts on the question of administrative detention in Israel, and how its legal and security system address the many complex questions raised.  I raised to Amos a question about the role of the judiciary in Israel in counterterrorism operations, administrative detention, and other activities by security forces, to which he responded at the bottom of this post.  I put the same question to Gabriella Blum, professor at Harvard Law School, who writes back the following from Israel.  We are delighted to have Professor Blum’s comments, as well as those of Professor Guiora, on a question that is not entirely clear to non-Israelis, like me, who have never been or lived in Israel and have only passing acquaintance with its legal traditions, but which has considerable importance both for how Israel undertakes its security operations but – most interesting to me, at least, the extent and ways in which the United States can look comparatively at Israel in coming up with its own policies and institutions.  So, with our thanks, Professor Blum writes from Tel Aviv:)

The question of the comparative role of the judiciary in Israel and the United States is an important one with respect to counterterrorism. There are undoubtedly many similarities between the American and Israeli counterterrorism strategies, not least the determination by both countries that the fight against terrorism was a “war,” and not only in the colloquial sense ….

From the war paradigm stem obvious further similarities between the Israeli and American experiences: the use of military force against terrorists and terrorist targets (including the acceptance of some civilian casualties as legitimate collateral damage), targeted killings, and long-term detention to suspected terrorists without trial. All of these practices have been employed, in one form or another and in some degree or another, by both countries, long before the “war on terrorism,” but they have become much more widespread, public, and contested in their current use.  There are also striking differences between the two countries’ experience, some that stem from objective differences in the types of war each fights and some that are related to the role of law – and of courts – in both societies ….

Remember Harold Koh? Full Senate Expected to Vote on His Nomination on Wednesday

by Chris Borgen

Well, it’s about time. 

On Monday, Senator Harry Reid moved for cloture of debate on the nomination of Harold Koh to be the State Department’s legal adviser. (Be sure to check out this article.) Sixty votes will be needed for cloture and then fifty votes for his confirmation. Both votes are expected to come this Wednesday, assuming no further shenanigans.

Three months ago, the legal blogosphere was abuzz with posts concerning Koh’s nomination to be the top lawyer at the State Department. For most, the nomination was a no-brainer: an influential international legal scholar and the Dean of Yale Law School, he had already served in government in the Reagan and Clinton administrations, most recently as Assistant Secretary of State for Democracy, Human Rights and Labor.

But then various pundits decided to caricature and demonize him. In the days and weeks to followed, there was a robust airing of his views and, I think, a debunking of the misconceptions promulgated by some.

Koh testified before the Senate Foreign Relations Committee almost two months ago, had submitted written answers to the Senate before that, was subject to a public debate via the blogosphere and op-ed pages (see, for example, the Opinio Juris posts here, and IntLawGrrl posts here, each of which reference posts from other sites), received endorsements from a who’s who of legal scholars and practicing attorneys, including former Solicitor General Theodore Olson, former Judge Ken Starr, former Bush Chief of Staff Josh Bolten, seven former State Department legal advisers and 103 law school deans (to name a few), and was succesfully voted out of the Senate Foreign Relations Committee by a 12-5 vote, including the support of the committee’s leadership, Senators Kerry and Lugar. 

Nonetheless,  Senators Vitter and Cornyn put a procedural hold on the full-Senate vote needed for his confirmation. This seemed to be less about the need to further explore Koh’s views, which by this point had received more scrutiny than any nominee for the post of Legal Adviser had ever had, and more just an attempt to play procedural “Gotcha!”

OK, partisan politics can be fun, but with unrest in Iran, North Korea acting even weirder than usual, and pressing issues in Afghanistan and Iraq (to name a few current concerns), wouldn’t it be a good idea to move forward on the nomination of the State Department’s top lawyer? The vote for cloture may be contentious. It should not be.  Koh has been thoroughly vetted. It is time to set aside partisan politics, vote on Harold Koh’s nomination, and confirm him.

Solidarity With Iranians

by Roger Alford

Legend has it that the Danes undermined German efforts to persecute Jews in Denmark by acting in solidarity with them by wearing the yellow star. (And yes I know the story is apocryphal).

We can’t exactly do the same thing today for Iranians, but one small act of solidarity we can do is make it easier for Iranians to express themselves. We can do so by creating a Twitter account and set it to an Iranian city and local Iranian time. If everyone has an Iranian setting, it apparently makes it harder for the Iranian government to block real Iranian Twitter accounts.

In order to create a Twitter account go here. If you already have an account, you can modify your setting in the top right menu bar. Change the location to any Iranian city of your choice and choose Iranian time of +3:30 GMT.

Details and other ideas here and here. I’m not positive if this makes a difference, but from reading the comments elsewhere it certainly doesn’t hurt to show solidarity with Iranians.

Does United States v. Comstock Carry Possible Implications for Counterterrorism Administrative Detention?

by Kenneth Anderson

The US Supreme Court accepted cert this morning in the case of United States v. Comstock; the cert papers can be found at SCOTUSblog and thanks to Jonathan Adler at Volokh for the tip.  Volokh Conspiracy has a series of prior posts on the subject, accessible here.  The case is a challenge under the Commerce Clause to the post-sentence civil commitment regime for sex offenders passed by Congress …

Why do I raise this here at OJ?  To ask whether the outcome, or the reasoning, in this case might have an impact on proposals for administrative detention of terrorists suspects who the government believes cannot be tried but must be held, or even – as in the situation here – have served their sentences if they were tried, but whom the government believes still remain too dangerous to release.  The fact that these types of arrangements have been blessed by the Supreme Court in the past is not irrelevant to the claim that civil administrative detention on the basis of even an inchoate, generalized threat is not always, flat-out impermissible.

Sotomayor on Treaties and Foreign Law

by Duncan Hollis

Thanks to my research assistant Heather Bourne, I’ve been reading a few of Judge Sotomayor’s cases involving treaties.  And although Julian suggested a few weeks ago that Sotomayor might be a closet sovereigntist, at least one case — her dissent in Croll v. Croll, 229 F.3d 133 (2d Cir. 2000) — suggests that she has internationalist leanings as well (subject to all the usual caveats about how much one can infer from a single case, etc.). 

Croll involved a father’s request for the return of his daughter to Hong Kong under the Hague Convention on the Civil Aspects of International Child Abduction.  The 2d Circuit denied the father’s request on the grounds that the original Hong Kong custody order only gave him “rights of access”, not “rights of custody” for the breach of which the Convention would mandate a return.  The majority was unpersuaded by the father’s argument that the custody order’s ne exeat clause–requiring the father (or the court) to approve any removal of the daughter from Hong Kong–converted his access rights into the custody rights protected by the Convention.  The majority reached this interpretation after invoking Article 31 of the VCLT and focusing its effort on discerning the “ordinary meaning” of the Convention’s custodial rights by consulting “(A) the purpose and design of the Convention, (B) its wording, (C) the intent of its drafters, and (D) caselaw in other signatory states.” 

Judge Sotomayor dissented because she read the ne exeat clause to give the father custodial rights protected by the Convention.  Sotomayor did not dispute the majority’s use of the VCLT, but rather critiqued how they applied its interpretative standards to the Hague Convention. Sotomayor also counter’s the majority’s characterization of the drafter’s intent.  In doing so, she demonstrates a solicitude for foreign law.

Makdisi on the Language of Israel and Palestine

by Kevin Jon Heller

Saree Makdisi, a professor of comparative literature at UCLA and an old friend from the literature program at Duke, has a superb editorial in today’s Los Angeles Times about the media’s — and thus our — use of language concerning Israel and Palestine.  Here’s a taste:

In the U.S., discussion of Palestinian politicians and political movements often relies on a spectrum running from “extreme” to “moderate.” The latter sounds appealing; the former clearly applies to those who must be — must they not? — beyond the pale. But hardly anyone relying on such terms pauses to ask what they mean. According to whose standard are these manifestly subjective labels assigned?

Meanwhile, Israeli politicians are labeled according to an altogether different standard: They are “doves” or “hawks.” Unlike the terms reserved for Palestinians, there’s nothing inherently negative about either of those avian terms.

So why is no Palestinian leader referred to here as a “hawk”? Why are Israeli politicians rarely labeled “extremists”? Or, for that matter, “militants”?

There are countless other examples of these linguistic double standards. American media outlets routinely use the deracinating and deliberately obfuscating term “Israeli Arabs” to refer to the Palestinian citizens of Israel, despite the fact that they call themselves — and are — Palestinian.

Similarly, Israeli housing units built in the occupied territories in contravention of international law are always called “settlements” or even “neighborhoods” rather than what they are: “colonies.” That word may be harsh on the ears, but it’s far more accurate (“a body of people who settle in a new locality, forming a community subject to or connected with their parent state”).

These subtle distinctions make a huge difference.

Go read the whole thing.

International Relations Theory for Father’s Day

by Roger Alford

Stephen Walt has a fun piece on the International Relations Guide to Parenting. Here’s a taste:

[N]o parent can monitor everything a child does (and you’d end up with a pretty neurotic kid if you tried), and you eventually reach a point where physical restraint (in IR terms, “pure defense”) isn’t practical. So we all rely on deterrence — “if you hit your sister/brother, I’ll take away your X-Box for a week.” But we all know the various subterfuges that states (and siblings) employ to negate a deterrent threat. Remember classics like: “It’s not my fault….he started it!” Or “I didn’t hit him, I just poked him.” (Sounds like the Middle East, doesn’t it?) And when parents get desperate, they turn to foreign aid (aka bribes): “If you finish your homework, I’ll take you out for ice cream.” Schelling was probably right: you can learn just about everything you need to know about this subject by raising a child.

[T]he whole field of asymmetric conflict can prepare you for another aspect of child-rearing: your superior education, physical strength, and total command of financial resources will not translate into anything remotely resembling “control.” A two-year old who is barely talking can destroy a dinner party or a family outing just by being stubborn, and a smart, loving, strong and wealthy parent can be damn near helpless in the face of a sufficiently willful son or daughter. Read Andrew Mack, Ivan Toft, or James Scott on “asymmetric conflict” and the “weapons of the weak” before you have kids, and at least you’ll be forewarned.

Network theory is still underdeveloped in the field of international relations, but it tells you a lot about your social life once you have children. You used to pick your friends based on common interests, professional associations, or simple serendipity; now you’ll find that your children are in effect choosing some of your friends for you, depending on who they like in school or who’s on their soccer team. This is actually one of the unexpected benefits of parenthood; just don’t be surprised if your social circle looks a lot different by the time your child reaches ten.

Do the Algiers Accords Preclude ATS Suits re Iran? Question for Roger and Others

by Kenneth Anderson

Roger, I was thinking about your post below on the Iran elections, and your comment on the 1981 Algiers Accords, which provide that “it is and from now on will be the policy of the United States not to intervene, directly or indirectly, politically or militarily, in Iran’s internal affairs.”  Failure to comply, you note in your post, could result in a claim filed by Iran against the United States before the Iran-United States Claims Tribunal.

My question is, do the Algiers Accords thereby preclude ATS suits insofar as they implicate something to do with Iran’s internal affairs?  Or, alternatively, might an ATS suit be entertained even though it might also result in a claim before the Claims Tribunal?  Is the status of the Algiers Accords something that extinguishes private rights under the ATS?  It is not hard to think of things on-going now in Iran that could conceivably generate ATS claims, even leaving aside the past, on the standards of other situations that have generated ATS claims in US courts.

And more generally, are there any other situations where a treaty or other enactment has altered or extinguished ATS litigation rights?

I am pretty sure these questions have been answered before somewhere, but I thought you or someone might have quick answers, and perhaps it might be of broader interest to OJ readers.  Thanks to anyone who can shed light on the legal status of all this.

I Agree with Justice Roberts…

by Kevin Jon Heller

With the number of the exonerated now at 240, giving prisoners the right to prove their innocence through DNA testing would risk “unnecessarily overthrowing the established system of criminal justice.”

It might lead to a reasonably accurate one.

Froomkin, Lord Carlile, and US Political Journalism

by Kevin Jon Heller

As most people probably know by now, the Washington Post, completely overburdened by liberals like Charles Krauthammer, Bill Kristol, George Will, Jim Hoagland, Michael Gerson, Robert Kagan, Fred Hiatt, David Broder, Richard Cohen, John Bolton, Joe Lieberman, and Douglas Feith, has fired Dan Froomkin, author of the wonderful blog White House Watch.  Froomkin has yet to say anything about his firing, other than that he is “terribly disappointed,” but something he wrote a few years ago — h/t: Glenn Greenwald — about his quaint understanding of the role of journalism almost certainly explains why he is no longer welcome on the editorial page of the increasingly execrable Washington Post:

Mainstream-media political journalism is in danger of becoming increasingly irrelevant, but not because of the Internet, or even Comedy Central.  The threat comes from inside.  It comes from journalists being afraid to do what journalists were put on this green earth to do…

Calling bullshit, of course, used to be central to journalism as well as to comedy. And we happen to be in a period in our history in which the substance in question is running particularly deep. Calling bullshit has never been more vital to our democracy.

It also resonates with readers and viewers a lotm ore than passionless stenography I’m not sure why calling bullshit has gone out of vogue in so many newsrooms — why, in fact, it’s so often consciously avoided. There are lots of possible reasons. There’s the increased corporate stultification of our industry, to the point where rocking the boat is seen as threatening rather than invigorating. There’s the intense pressure to maintain access fo  insider sources, even as those sources become ridiculously unrevealing and oversensitive. There’s the fear of being labeled partisan if one’s bullshit-calling isn’t meted out in precisely equal increments along the political spectrum.

If mainstream-media political journalists don’t start calling bullshit more often, then we do risk losing our primacy — if not to the comedians then to the bloggers.

I still believe that no one is fundamentally more capable of first-rate bullshit-calling than a well-informed beat reporter – whatever their beat.  We just need to get the editors, or the corporate culture, or the self-censorship — or whatever it is — out of the way.

It’s difficult not to feel despair at the increasing banality of journalism in the US.  A couple of days ago, I had the privilege of spending the evening with Lord Carlile of Berriew, who has served as the UK’s Independent Reviewer of Terrorism Legislation since 9/11.  He has no binding authority, but he insisted that his power to “name and shame” gives him a great deal of actual influence over the content of antiterrorism legislation.  And indeed, it seems clear that many of the UK’s imperfect antiterrorism laws would have been far less perfect but for his efforts.

I found Lord Carlile’s discussion of his “soft power” fascinating, so I asked him why he thinks the power to name-and-shame has almost no effect in the United States…

A Bureaucrat’s Cautionary Tale: Ignore Academic Advisory Committees at Your Peril!

by Peter Spiro

Advisory committees are usually makeweight undertakings, supplying a crumbs-from-the-table kind of federal patronage. Not much work required of committee members to correspond with the associated level of prestige and compensation. For insiders, it must usually be a minor sort of bother. Brief outside “experts” on latest developments, make them feel in the loop, go back to work; repeat on a quarterly basis.

Not so the advisory committee to the Historian of the Department of State. Working from a statutory mandate to advise the office with respect to the publication of the Foreign Relations of the United States (see background from my earlier post here), the committee set in motion a chain of events which resulted in personal engagement on the part of a lameduck Condi Rice, an Inspector General’s investigation and now with Historian Marc Susser’s “transfer” out of the office. For the full story, see here and here; when was the last time an advisory committee rated a Talk piece in the New Yorker?

Susser treated the committee as an irritation; I bet he’s kicking himself now. The committee is composed of academics, mostly diplomatic historians (Roger Louis of the University of Texas, the longtime now-former chairman, and Tom Schwartz of Vanderbilt, who was pushed out by Susser, deserve a lot of credit for the developments). Granted, the historian’s office is an unusual one, a quasi-academic unit in a policymaking bureaucracy, but the episode demonstrates utility from unexpected quarters.

Judicial Review and Administrative Detention

by Amos Guiora

As the three branches of government move into the post Bush era they would do well to recall not only Justice Jackson’s words but also those of the former President (Chief Justice) of the Israeli Supreme Court, Aharon Barak, ‘national security is not a magical phrase’. Those two phrases articulating the same concept are essential to understanding how administrative detention can and should be implemented.

A Question for Amos on the Comparative Role of the Judiciary

by Kenneth Anderson

I’m delighted that Amos is guest-blogging with OJ this week, and I’ve read with great interest his posts – as well as his scholarship and policy writing – on administrative detention and related topics.  I have always wanted to ask the following, without a lot of knowledge, as I’ve never been to Israel and have only reading knowledge both of how the legal structures work but, more importantly for this question, how Israeli society works.  It’s this:

In important areas of security-terrorism policy, whether it be detention as Amos has been discussing in these posts, or targeted killing, as I’ve been discussing various places, and other things besides, the Israeli judiciary and the Israeli Supreme Court play a very important role.  It is a role that goes far beyond the role of the judiciary in American society, at least to the limited extent that I understand law and Israeli society, or the role of the American judiciary in counterterrorism and national security, even taking into account the increased role of the Federal courts in the counterterrorism and national security cases since 9/11.

What difference does this make, or should it make, in considering whether and the extent to which Israel’s approaches to detention, targeted killing, etc., can or should be adopted (adapted?) in the US?  Speaking without a personal knowledge of Israeli society, it appears to me from afar that the Israeli Supreme Court plays a societal role that is far wider and far deeper than the SCOTUS.  Juridical notions of separation of powers, the constitutional traditions of the political branches and foreign policy, the role of the commander in chief – all those things seem to me to raise important questions as to how far comparitivism can get on these issues.

There are other kinds of differences as well, beyond the question of the role of the judiciary in each society.  The proximity of the terrorism threat and a hostile adjacent population, the quasi-permanent nature of it in its impingement upon Israel as a polity and a society – one can argue that terrorism is a quasi-permanent fact of life for the United States and that in an age of globalized movement it is also always proximate.  But while worth bearing in mind, at least with my limited understanding of Israel, those differences are very real and very big, and they change the way in which a society responds to a threat that, because of those factors, impinges far more internally than, as with the United States at least up to this point, externally.

Europe likewise differs from the United States in these factors.  Much of the difference between European and US points of view on countering terrorism simply has to do with the strategic fact that for the US (and despite what will almost certainly be an increase in internal recruiting to jihadist terrorism inside the US), it remains largely external and hence amenable at least in part to war as a policy (whether successful or not in the actual event).  For Western Europe – Britain or France, the Netherlands or Denmark, for example – the terrorist threat is as much or more internal as anything.  Externally conducted war does not really address the threats these countries face; their lack of enthusiasm for it oftentimes carries a moralistic demeanor (as does the American response), but at bottom it arises from the strategic facts of the world and how they differ between the US and Europe.

And so too, it seems to me, with Israel.  The US situation is socially different, juridically and constitutionally different, and strategically different, starting with the geography of the struggle.  That does not render comparisons irrelevant or not useful – on the contrary, if only because differences can teach as much about policy as similarities – but it does suggest that they need to be evaluated on the basis of difference as well as similarity.  This, of course, I say in the abstract, never having been in Israel, so let me put the question to Amos: what are the differences, as he sees them, and how and to what extent do they condition the policy advice that one might give to the US?

Financial Scams and Lessons from the Metaverse

by Chris Borgen

Once more, the online world of the metaverse (a term to encompass online virtual communities like Second Life, Entropia, etc.) reflects “real world” economic transactions. (See this and this for background.) The latest story (via Futurismic) is how an executive of Ebank, a bank set up in the metaverse Eve Online, illegally sold the deposits and collateral of its depositors to other gamers for real currency.

The Futurismic post is based on this New York Times story, which states:

It’s not clear how much of that virtual money was embezzled and now needs to be found, somehow, by Ebank. But if the Eve chatter is accurate, it could amount to 10 percent of deposits withdrawn. That could wipe out whatever capital was used to finance Ebank’s loan book. As in the real world, that would spell insolvency.

And here’s where the Ebank story may have implications for real-world bankers, regulators and users of financial services. It’s not the first virtual bank to run into trouble — something similar happened in Second Life, which is governed by United States law.

In Eve’s virtual universe, there is no financial regulator, no Federal Deposit Insurance Corporation. And so far there is no lender of last resort, either.

For now, Ebank’s multinational directors appear to be acting just as many real-world boards would: engaging in finger-pointing and recriminations. Eventually, however, they will have to offer a solution to the depositors clamoring to get their money back in full.

As in the real economy, the customers could be tempted to appeal to a higher authority — Eve’s creators. That would probably involve appealing to the Council of Stellar Management — a body of nine members chosen by Eve players to represent them in discussions with CCP.

But the word from Reykjavik isn’t likely to comfort Ebank’s depositors. Eve’s creators at CCP — which employs its own economist and philosopher — take a laissez-faire approach, leaving most such matters to the game’s users to sort out. Unlike the Icelandic government, which allowed three local banks to nearly bankrupt Iceland with unchecked expansion, CCP is determined not to encourage entities to become too big to fail.

Whether and how Ebank can get out of its mess without a protective cocoon of support from Eve’s ultimate powers is unclear. But policy makers around the world, who bailed out greedy bankers, might want to monitor the situation.

This other-worldly simulation could provide clues on how they can avoid stepping in to save the financial system — and the moral hazard that goes with banks’ expectation that they will

Dilemmas in the Administrative Detention Paradigm

by Amos Guiora

There are two fundamental realities regarding the Israeli administrative detention process: 1) the individual (detainee) cannot confront his accuser; 2)  the individual (detainee) involved in planning terrorist actions is detained prior to carrying out an act of terrorism. Balancing these two is essential to lawful implementation of a measure, which by its very nature,  places the individual at an extraordinary disadvantage. When I was asked to review a file –whether as legal advisor or judge–the dilemma was the same: is the measure truly necessary or is there another mechanism available that balances the legitimate rights of the individual with the equally legitimate rights of the state?

Comparative Constitutional Law: National Security Across the Globe, Conference at Pace

by Peggy McGuinness

Bridget Crawford of Pace Law School and the Feminist Law Profs blog passes along the following call for papers for an upcoming symposium focused on comparative constitutional approaches to national security:

Pace International Law Review 2009-2010 Symposium

Call for Submissions

Pace International Law Review is planning a symposium entitled Comparative Constitutional Law: National Security Across the Globe to be held in November of 2009. The day-long symposium will feature multiple panelists and guest speakers. The editors of Pace International Law Review invite proposals for articles, essays and book reviews from scholars, researchers, practitioners, and professionals. Contributions to be considered for presentation at the symposium and subsequent publication or for publication only.. . .

What Should Obama Do With Election Fraud in Iran?

by Roger Alford

I am watching with fascination the Iranian protesters respond to the apparent election fraud in Iran. There are so many wonderful new media sources that it is difficult to keep up with the developments. Here’s one old media outlet that provides a good list of new media sources.

President Obama is in a pickle. Right now he is the most popular politician in the world and one cannot help but imagine the temptation to intervene and lend his powerful voice to those seeking a reversal of their stolen fortunes. But there are two little problems, one policy and the other law. As for policy, Iranians long remember the United States’ involvement in the 1953 overthrow of the democratically-elected Mohammed Mosaddeq. In his Cairo speech Obama mentioned as much, stating that “In the middle of the Cold War, the United States played a role in the overthrow of a democratically elected Iranian government.” If the United States is perceived to be publicly promoting the removal of Ahmadinejad, it could do more harm than good.

As for law, the United States has expressly promised to stay out of matters such as fraudulent Iranian elections. In one of the most unusual international law commitments I have ever read, the United States in the 1981 Algiers Accords has pledged “that it is and from now on will be the policy of the United States not to intervene, directly or indirectly, politically or militarily, in Iran’s internal affairs.” Failure to comply with this obligation could result in a claim filed by Iran against the United States before the Iran-United States Claims Tribunal.

Perhaps Obama has already done what he could. Perhaps his Cairo speech resonated with the Iranian people more than we know, beckoning them to pursue their current path of peaceful protests. Recall his words less than two weeks ago, “America does not presume to know what is best for everyone, just as we would not presume to pick the outcome of a peaceful election. But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn’t steal from the people.”

The best one can hope for is for the United States to quietly work with its friends and enemies to ensure that there was a free and fair election in Iran, that the people have a right to free speech, peaceful protest, and a free press (which is to say, access to new media). In other words, the Obama Administration can do precious little. Others with closer connections to Iran can and should step in and provide leadership, but I have little hope that they will. It may well be that we are all bystanders in the greatest peaceful revolution since fall of the Berlin Wall. I hope so, but I doubt it.

Russia and the “Bilateralization” of the Georgian Conflict

by Chris Borgen

In the latest chapter of its attempt to consolidate its power over Georgia regarding the South Ossetia and Abkhazia, Russia has vetoed the continuation of the UN mission in the region. According to the AP:

Russia has exercised its veto power in the U.N. Security Council and brought an end to the nearly 16-year-old U.N. observer mission in Georgia and breakaway Abkhazia.

Russia’s veto late Monday toppled a Western plan to extend the life of the mission. The vote was 10-1 with four abstentions — China, Vietnam, Libya and Uganda.

CNN reports:

“The U.N. mission’s previous mandate has actually ceased to exist in the wake of Georgia’s aggression against South Ossetia last August,” said Vitaly Churkin, Russia’s U.N. ambassador, who said it was “unacceptable” to extend the mission.

The CNN report later explains:

The crux of the controversy remains Georgia’s territorial integrity. As a result of last year’s war, Russia now considers South Ossetia and Abkhazia sovereign nations independent from Georgia. Russia has no international support for that position aside from the nation of Nicaragua.

This veto is in line with an ongoing Russian strategy to end multilateral involvement (where possible) concerning conflicts in its “near abroad” and to make the resolution of such conflicts a bilateral matter between the country with the separatist conflict and Russia. Besides the veto of the UN mission in Georgia, Russia has also recently attempted to circumvent the multilateral “5+2” mediation process over the conflict in Moldova (Moldova, the separatists, OSCE, Ukraine, Russia + The EU and the US) with new “2+1” talks (Moldova, the separatists, and Russia).

Keeping in mind that the separatists in Georgia (and in Moldova) have been financially, politically, and militarily backed by Russia, the negotiations for any ongoing peace really becomes a negotiation between Georgia (or Moldova) and Russia. By strategically using its veto, Russia has ensured that it remains the indispensable party for peace in Georgia. Without the UN, a new effort at multilateralizing would likely mean either boosting the role of the OSCE or of the EU. (I think a NATO role is unlikely at this point.) But, without any “boots on the ground” as the Russians have in Abkhazia and South Ossetia (or, soon, even a UN observer mission), these other international organizations are at a disadvantage in terms of bargaining power. Moreover, it is unclear that some western European nations will want to play hardball on this issue while they are also dependent on Russia for natural gas.

Thus, I think we are seeing here one more step in Russia bilateralizing (de-multilateralizing?) the situation in Georgia. Such bilateralization is a common technique used by great powers in the relations with relatively weaker states (think “bilateral investment treaties,” for an economic example). I have the impression, though, that Russia tends to use this technique a bit more than other great powers in regards to security issues, posibly due to its historic distrust of multilateral organizations.

David Bernstein’s (Ongoing) Caricature of Human Rights Watch

by Kevin Jon Heller

David Bernstein is back with another attack on Human Rights Watch.  This time, he’s up in arms that an HRW official had the temerity to criticize Israel in Saudi Arabia during a fundraising dinner:

A delegation from Human Rights Watch was recently in Saudi Arabia. To investigate the mistreatment of women under Saudi Law? To campaign for the rights of homosexuals, subject to the death penalty in Saudi Arabia? To protest the lack of religious freedom in the Saudi Kingdom? To issue a report on Saudi political prisoners?

No, no, no, and no. The delegation arrived to raise money from wealthy Saudis by highlighting HRW’s demonization of Israel. An HRW spokesperson, Sarah Leah Whitson, highlighted HRW’s battles with “pro-Israel pressure groups in the US, the European Union and the United Nations.” (Was Ms. Whitson required to wear a burkha, or are exceptions made for visiting anti-Israel “human rights” activists”? Driving a car, no doubt, was out of the question.)

Apparently, Ms. Whitson found no time to criticize Saudi Arabia’s abysmal human rights record. But never fear, HRW “recently called on the Kingdom to do more to protect the human rights of domestic workers.”

Bernstein has previously described HRW as “almost cartoonishly biased against Israel.”  The only thing cartoonish, however, is Bernstein’s blatant misrepresentation of Whitson’s work.  Here is a list of her recent comments on Saudi Arabia, which take all of about 30 seconds to find on HRW’s website:

  • Criticized Saudi Arabia’s failure to protect rights, including “giving women better access to work, education, health and justice, and easing restrictions on their travel.”
  • Urged governments to criticize the lack of religious freedom in Saudi Arabia.
  • Criticized Saudi Arabia’s use of the death penalty for non-serious crimes.
  • Demanded that Saudi Arabia release political prisoners.
  • Criticized Saudi Arabia for imposing draconian discipline against a lawyer who attempted to represent a rape victim.
  • Asked Saudi courts to stop trials for “insulting” Islam.

I could go on, but you get the point.

More on the Israeli Model

by Amos Guiora

[OJ ed. Note this post was submitted before comments to Mr. Guiora’s first post were received.]

In Monday’s post, I presented the fundamental principles of administrative detention. Today, I will discuss the process and considerations when to apply the measure as developed over the course of years in Israel with respect to a specific individual. The measure is applied in the West Bank by order of the military commander (Israel has never annexed the West Bank) and in Israel proper by the Minister of Defense. In both, the decision is subject to judicial review (in the West Bank by two military courts and the Israeli Supreme Court; in Israel by the Tel Aviv District Court and by the Israeli Supreme Court).

As to the process: when the security forces (Israel Security Agency, ISA; formerly known as General Security Services) receive intelligence information suggesting a specific individual’s involvement in terrorism the following options are ‘on the table’:

1) Arrest for purposes of initiating a criminal law process (detention-interrogation-trial)
2) Arrest for purposes of administrative detention (detention-hearings)
3) Not arrest (monitor/surveillance).

If the ISA chooses to recommend the commander impose administrative detention on the individual, then the military commander’s legal advisor is requested to review the intelligence information in order advise the commander whether to adopt the recommendation. In my postings as senior security advisor to the West Bank Legal Advisor (1990-1992) and Gaza Strip Legal Advisor (1994-1997), I was asked to review ISA recommendations to military commanders regarding Palestinian residents of the West Bank and Gaza Strip. My recommendations were either to:

1) Accept the ISA’s detention recommendation and if yes, whether to affirm the ISA’s recommendation regarding length of detention (up to six months); OR
2) Reject the ISA recommendation and recommend either not to detain the individual or to arrest for purposes of initiating a criminal law process.

My recommendations (to the commander) were based on the following considerations:

1) Quality of intelligence and source reliability/credibility (this required expert opinion by an ISA official);
2) Timeliness/staleness of the intelligence information (this required expert opinion by an ISA case agent);
3) Previous activities of the individual (this required review of the intelligence dossier prepared by the ISA);
4) Impact on the individual’s immediate community; this was of particular relevance if the individual was a highly regarded/respected leader (this required expert opinion by an ISA official);
5) NGO response (while Israeli and international human rights organizations were unanimous in their criticism of the measure, there was additional sensitivity with respect certain categories including women, ‘people of prominence’, and attorneys);
6) Severity of the danger posed by the individual (this required expert opinion by an ISA official);
7) Whether the intelligence information could be declassified and the individual interrogated thereby enabling initiation of the criminal law process;
8. Danger to the source/s were the information to be declassified (this required expert opinion by an ISA official);
9) Whether the Israel Supreme Court (sitting as the High Court of Justice) would intervene in the commander’s decision.

Were I to affirm the ISA’s recommendation then the intelligence dossier and my recommendations were brought before the commander; if the commander accepted my recommendation the individual would be detained in accordance with the signed order which included a short description of the order’s justification (largely a general statement regarding the individual’s activity).

As I shall discuss in subsequent postings, the orders are subject to judicial review (military court and Israel Supreme Court).

Yoo, Who — Ministries, not the Justice Case

by Kevin Jon Heller

Scott Horton has a typically must-read post today at Harpers.com on Jose Padilla’s lawsuit against John Yoo, which, happily, just survived a motion to dismiss and appears to be headed to trial.  Scott takes apart the state-secrets defense advanced by both Yoo and — predictably — the secrecy-obsessed Obama administration.  Here’s a taste:

In seeking dismissal, Yoo argued that the case asked the courts to look at the president’s exercise of his war-making powers, and that the courts should butt out. But his principal argument was utterly predictable: state secrets. “Yoo contends that the Court should abstain from reviewing the alleged constitutional violations presented in this matter because the claims necessarily would uncover government secrets, thereby threatening national security.” The “secrets” here, of course, are of two sorts: first, the torture techniques used to turn Padilla into the human equivalent of an eggplant and second, the legal voodoo employed by Yoo in his efforts to justify Padilla’s torture and thus promise the torturers legal protection from criminal prosecution. But neither of these “secrets” are actually secret.

I do, however, have to take issue — again — with Scott’s claim that “the potential criminal liability of government attorneys for misstating the law relating to armed conflict… was confirmed in United States v. Altstoetter,” better known as the Justice Case.  As I have pointed out before, that case confirms nothing of the kind.  The case that Yoo should worry about — are you listening, Yalies? — is Ministries.

The Soccer War: Forty Years Later

by Chris Borgen

Next month is the 40th anniversary of the so-called “Soccer War” between El Salvador and Honduras, made famous by an elegaic essay by Ryszard Kapuscinski. (See also this clip, in Spanish Catalan.)

In the midst of heated disputes over immigration, trade, border delineation and other issues, the two countries played each other in three qualifying games for the World Cup, one held in each country and a third in Mexico. The series of games were marred by violence. According to an excellent summary in The Soccer Blog:

The bitterly contested first match played at Tegucigalpa, Honduras saw the Hondurans beat the El Salvadorans during the last minute of play, giving them a 1-0 win. The populace went wild. Fights broke out between the respective loyalists. The stadium was set afire. Newspapers on both sides before the match waged a campaign of hate, slander and abuse, calling each other Nazis, dwarfs, drunkards, sadists, spiders, aggressors and thieves.

In the return match that took place in El Salvador, things got quickly out of control. The hotel where the Honduran team was sleeping was put to the torch during the early hours of the night. Luckily, everyone got out unharmed. After escaping from a burning hotel, the visiting team took to the field like a bunch of zombies. Needless to say, Salvador won the game.

After the game, cars were set afire in the streets. Store windows were broken. Local hospitals set new attendance records. Miraculously, the Honduran team slipped back across the border without actually losing a single man.

With Salvador and Honduras having won one game apiece, there were no illusions about what was going to happen when they met in Mexico City for the final confrontation. Radio, television and newspapers in both countries screamed for blood. The final meeting promised to be a soccer game the like of which hadn’t been seen since “the Battle of Waterloo was won on the playing fields of Eton and Harrow.”

In the end, that’s exactly what it turned out to be — a war.

Early on the morning of July 14, 1969, concerted military action began in what came to be known as the Soccer War. The Salvadoran air force attacked targets inside Honduras and the Salvadoran army launched major offensives…

In the next 100 hours, about 4,000 people were killed and 12,000 wounded. If I remember correctly, a large part of Kapuscinski’s essay takes place with him watching a young soldier who has been shot in the stomach slowly die. 

A cease-fire was ultimately brokered through the United States and the OAS, but it would take years to resolve the underlying issues. The war played a part in the 22 year suspension of the Central American Common Market. The border issue was ultimately resolved via the ICJ in the 1990’s.

As for the soccer rivalry… back in 1969 El Salvador won the tie-breaking match played in Mexico and qualified for the World Cup. Last week, the two soccer rivals met again almost 40 years to the day in one of the 2010 World Cup qualifying games.  Honduras won 1-0.

Welcoming Guest Blogger Amos Guiora

by Deborah Pearlstein

We’re delighted to have Professor Amos Guiora join us this week as a guest blogger at Opinio Juris, where he’ll be discussing what lessons U.S. lawyers and policymakers might draw from the Israeli experience in administrative security detention. As many regular OJ’ers know, Professor Guiora is an expert on comparative counterterrorism law and has published extensively both in the United States and Europe on issues related to national security, limits of interrogation, religion and terrorism, and the limits of government power. Before taking his current position at SJ Quinney College of Law at the University of Utah, Professor Guiora served for 19 years in the Israel Defense Forces Judge Advocate General’s Corps (Lt. Col. Ret.). He there held a number of senior command positions, including Commander of the IDF School of Military Law, Judge Advocate for the Navy and Home Front Command, and Legal Advisor to the Gaza Strip. During his service with IDF, he had direct involvement in Israel’s administrative detention regime (serving variously as legal advisor, prosecutor and military court judge). Given the salience of these issues here in the U.S. these days, we’re very much looking forward to hearing Professor Guiora’s thoughts.

An Israeli Case for Administrative Detention

by Amos Guiora

I would like to thank everyone at Opinio Juris for inviting me to guest blog this week on detention policy issues facing the Obama Administration, the Congress and the courts. Needless to say, I hope my comments contribute to the debate and I welcome comments/feedback from readers. The discussion below addresses both detainees presently held and those detained who will be detained in the days and years ahead. My fundamental assumption is that the present detention model—which I suggest is largely ‘indefinite detention’—must be replaced by a paradigm that is consistent with U.S. constitutional protections and guarantees as articulated by the Supreme Court in Boumediene v. Bush and Judge Bates with respect to habeas corpus.

An Unfortunate Trial Begins at the ICTY

by Kevin Jon Heller

Florence Hartmann’s contempt trial began today at the ICTY.  Hartmann, a celebrated journalist who served as the Tribunal’s spokesperson from 2000-2006, is charged with knowingly disclosing confidential Tribunal information:

On 10 September 2007, a book entitled Paix et Châtiment, authored for publication by Florence Hartmann, was published by Flammarion. Pages 120-122 of the book Paix et Châtiment in particular disclose information related to the decisions of the Appeals Chamber dated 20 September 2005 and 6 April 2006, including the contents and purported effect of these decisions, as well as specific reference to the confidential nature of these decisions.

On 21 January 2008, an article authored for publication by Florence Hartmann entitled “Vital Genocide Documents Concealed” was published by the Bosnian Institute. The article discloses information relating to the two confidential decisions of the Appeals Chamber dated 20 September 2005 and 6 April 2006, including the contents and purported effect of these decisions.

Florence Hartmann knew that the information was confidential at the time disclosure was made, that the decisions from which the information was drawn were ordered to be filed confidentially, and that by her disclosure she was revealing confidential information to the public.

Some scholars question whether the Tribunal has the power to punish contempt, which is provided for by the ICTY’s Rules of Procedure (Rule 77), but is not mentioned in the ICTY Statute.  I don’t have a problem with the contempt power itself: the “courtness” of courts, it seems to me (and forgive the butchering of Heidegger), includes the power to punish contempt.  That said, I think this particular use of the contempt power is an exceptionally bad idea.  As numerous human-rights groups and NGOs in the former Yugoslavia have pointed out, the information Hartmann disclosed was already in the public domain

IHL Quiz — How much do you (and they) know?

by Duncan Hollis

Maybe it’s too soon after finals for some of you, but for those still willing to undergo examination, the Jerusalem Center for Public Affairs has a short on-line quiz on international humanitarian law (IHL).  You can access it here.  It’s issued in concert with a major conference the Center is hosting later this week on Hamas, the Gaza War, and Accountability under International Law.  The conference has an impressive line-up of participants, including Yoram Dinstein, George Fletcher, and Daniel Taub. (Taub made a visit to Temple Law School this past March, and I was tremendously impressed by his nuanced understanding of international law and its role in the Middle East Peace Process as well as his general willingness to appreciate competing perspectives on both topics.)

As for the Quiz, it’s timed and takes your first answer, so work quickly, but be sure before you click.  I got 9 out of 12 “correct” (my errors coming from a general lack of knowledge about phosphorous and some differences of opinion with the quiz-authors on the scope of civilian distinction principles in armed conflicts).  I wonder how others with IHL expertise will do?  And I’d like to hear if anyone has reactions to either the form of the questions or the answers themselves.  Feel free to leave your feedback in the comment thread below.

The Foreign-Law-and-the-US-Constitution Question for Supreme Court Nominees

by Kenneth Anderson

Senator John Cornyn (R-Texas) has recently begun a series of “daily questions” for Supreme Court nominee Judge Sotomayor.  The Friday, June 12 question is about interpretation of the US constitution and foreign and international law in relation thereto.  One thing that can safely be taken away from the last three Supreme Court confirmation processes is that this issue is here to stay; it will likely be a permanent part of the questioning of candidates to the Court. 

I happen to think (as will surprise no one), that this is a good and proper thing, but rather than wade (back) into that endless debate, I’ll just refer you to my views, here in Policy Review.  You can also read Roger’s views, which I cite a lot, in his article on this topic (he actually has a couple of articles on this).  Mostly I wanted to note as a matter of the sociology of the confirmation process, everyone will always be asked this.  

Just back from travels, I see with pleasure Mark Tushnet’s blog post here on his VJIL article.  If you would like to see (imho) one of the best articulated and argued views (mostly opposite to mine) on this topic of foreign law and US constitutional interpretation, see Mark’s splendid articles from a couple of years ago (I can’t seem to find the University of Baltimore, Vol. 35 essay online and open access).

(Also on the political process of confirmation hearings, I was interested to learn that my Volokh co-blogger Orin Kerr has taken an absence from the blog because he is acting as counsel to Senator Cornyn on the nomination process.  I didn’t know that things got all that involved, but as I have sometimes remarked, I’m not very clued-in about political process, despite being a Washington DC professor.  I hope that at some point Orin will share what he can about what all this role is about.)

A Response to Daniel Bodansky

by Nigel Purvis

Professor Bodansky is absolutely right that the success of U.S. climate change policy depends on whether our leaders can align domestic and international efforts.  Unless the United States does its fair share, other nations will not do theirs.  And yet a purely international solution – untethered to domestic political realities – has little chance of securing U.S. participation.  Bodansky’s own solution is a two-tier target – an initial level of effort that the United States pursues unilaterally, without pre-condition, and a second, more ambitious, mitigation target that the United States commits to only if other nations are also taking equitable action.  This makes perfect sense and, as Bodansky notes, it’s the posture Europe is taking now with respect to its post-2012 climate program.  Given America’s role in the world and its capacity to help solve the climate crisis, we should not hide behind China.  Rather, we must lead by taking an initial, cost-effective step forward.  Yet, given the costs and competitiveness concerns involved in transforming our economy, U.S. policy also needs to create incentives for other major emitting nations to act.  Holding out the promise of more ambitious U.S. emissions mitigation, coupled with new financial assistance for clean growth and climate adaptation, would lead China, India and other key countries toward sound climate policies.  As Bodansky notes, merely offering to turn the content of a new U.S. cap-and-trade law into a legally binding international commitment would not create a real negotiating dynamic at the global level.  Why should emerging economies move aggressively beyond existing policies when the United States would implement its cap-and-trade law regardless of what they do?  Kyoto created a free-rider problem by exempting developing nations.  A post-Kyoto agreement that asked for action by developing nations but gives them no incentives to make a deal could prove just as unhelpful and ineffective.

The real question is how best to implement Bodansky’s two-tier target approach.  There are several options.  The President could adopt the approach as a matter of executive branch policy.  Alternatively, the Senate or Congress could pass a non-binding resolution outlining the two-stage plan. Either of these would be a major improvement over the current situation – where neither the President nor Congress have been specific about what the United States needs in a post-Kyoto climate pact or about what carrots has to offer others.  Yet, neither a presidential policy nor congressional resolutions would give other nations confidence that the United States would actually follow through as neither would have the force of law, and neither would create a clear path for congressional approval of climate pacts.  Given the Senate’s treaty practice, in fact, developing nations would surely wonder whether the United States would actually join a new climate agreement – even if all U.S. conditions were met.

In contrast, the Congress could build both mitigation targets (the initial first unconditional step and the second conditional promise) into the heart of the cap-and-trade legislation it is considering right now.  By enacting into law both targets simultaneously and by delegating to the President the authority to certify to Congress when international conditions have been met, the United States would send a strong and clear signal to other nations about the sincerity of the U.S. offer and the benefits of meeting U.S. demands.  Congress too could have a voice in judging whether international conditions have been met.  Congress could vote on the question, using streamlined procedural mechanisms outlined in the cap-and-trade legislation itself to ensure a speedy and fair process.  If a majority of both houses agreed with the President that the conditions contained in the initial cap-and-trade legislation were met, for example, then the more stringent U.S. emissions target would take effect.  This sensible, collaborative process that would use domestic statutes and domestic procedural mechanisms to shape global climate negotiations is exactly what I mean by Climate Protection Authority.  Climate Protection Authority would have the force of law, and would give U.S. negotiators the credibility and leverage they need to lead global negotiations.  Climate Protection Authority, in short, is the legal mechanism we need to give life to Bodansy’s sensible two-tier emissions target approach.  More generally, Climate Protection Authority would allow the United States to negotiate agreements worth joining and join the agreements it negotiates.  Now wouldn’t that be a nice change?

How to Achieve US Ratification of a New Climate Agreement: A Response to Nigel Purvis by Daniel Bodansky

by Daniel Bodansky

[Daniel Bodansky is a Professor at the University of Georgia Law School]

In the international climate change negotiations, new ideas are a scarce commodity.  After almost twenty years of intensive work, most of the low-hanging fruit have already been plucked, and progress tends to be more incremental – a refinement to the possible types of emissions targets here, a new variation on a financing scheme there – these are the focus of attention.

So Nigel Purvis’s proposal to enact US Climate Protection Authority legislation is no small achievement.  It represents a bold idea to break one of the central impasses in the international climate change process: securing US ratification of a successor to Kyoto.  The proposal has two parts.  First, the Obama administration would work with Congress to define the elements of an acceptable international deal, through adoption of fast-track authority.  Second, the resulting international agreement would be submitted for legislative approval by Congress, as a Congressional-Executive agreement, rather than as an Article II treaty requiring advice and consent by 2/3 of the Senate.  Both parts have the same function – to maximize the odds of US ratification – but they operate independently.

Few would disagree about the desirability, in principle, of seeking more Congressional buy-in to the US negotiating position internationally.  But doing so would involve broadening the current debate about US climate legislation from a debate focussing primarily on domestic policy (in the form of the Waxman-Markey bill) to one that also included international policy.  With the Waxman-Markey train leaving the station, there is little appetite at the moment for injecting new issues into the debate.  And even when Congress decides to focus more on international policy, it’s unclear whether it would be willing to adopt a pre-commitment strategy by providing fast-track authority, given the political volatility of the climate change issue.

With respect to the second part of Purvis’s proposal, the idea of a Congressional-Executive agreement has much to recommend it.  As Oona Hathaway has shown, Congressional-Executive agreements have considerable historical precedent.  They have greater democratic legitimacy than Senate-approved treaties.  And they make it less likely that important international agreements will be held hostage to the vagaries of Senate procedures, as has been the case with the Law of the Sea Convention.  Indeed, John Yoo – who recently came out against the idea in a New York Times op-ed – made many of these arguments himself in support of Congressional-Executive agreements in an earlier incarnation.

That said, the choice between a Congressional-Executive agreement and a treaty ultimately depends on a political calculation: Would it be easier to get 60 (or perhaps only 50) senators to approve a Congressional-Executive agreement than to get 67 senators to approve a treaty?  Purvis assumes that 60 votes are easier to obtain than 67, but this isn’t necessarily true, since some Senators might oppose a Congressional-Executive agreement simply in order to preserve the Senate’s special prerogatives in the treaty approval process.  Indeed, presenting a climate agreement for Congressional rather than Senate approval could give some senators a convenient procedural excuse to hide behind, rather than having to oppose the agreement on substantive grounds.

Regardless of whether Purvis’s specific proposal is politically persuasive, it highlights one of the central challenges in the climate change negotiations, namely to align US domestic climate policy with its international negotiating stance.  The failure to do so spelled doom for the Kyoto Protocol. The Clinton Administration’s assumption that it could negotiate a treaty internationally that would drive action domestically proved to be a colossal miscalculation. Having been burned by Kyoto, many have now veered to the opposite extreme, concluding that the US should not agree to anything internationally that goes even an inch beyond what Congress has already pre-approved domestically.  This approach would certainly make an international agreement as cost-free as possible to the United States. (Indeed, if an international agreement simply mirrored existing domestic climate legislation, then it might even be adopted as a sole Executive agreement, like the US-Canada Air Quality Agreement, rather than as a Congressional-Executive agreement.)  But such an approach would eviscerate US negotiating leverage. If the United States took the stance that it would agree internationally only to what it had already decided to do domestically, it would lack any quo to offer in return for the quid of action by China or other major economies.

To my mind, the only sensible solution is for the United States to take a two-track approach (like the EU), articulating what it is willing to do domestically on its own, and how much more it would be willing to do in return for action by other big emitters such as China.  A decision to do a certain amount unilaterally would show much needed leadership.   An offer to do more in exchange for reciprocal action by others would give US negotiators much needed leverage.  And if these positions had buy-in from Congress in advance, through the enactment of Climate Protection Authority, as Purvis proposes, that would give the US much needed credibility.  Those three ingredients – leadership, leverage and credibility – may not be sufficient to produce a successful outcome in Copenhagen.  But they are certainly necessary.

The Case for Climate Protection Authority

by Nigel Purvis

[Nigel Purvis is the President of Climate Advisers]

Climate change presents a clear and growth threat to the United States and the world.  America now has an important opportunity to lead.  Congress is moving toward enacting comprehensive climate legislation.  The House Energy and Commerce committee recently approved a “cap-and-trade” bill (Waxman-Markey) that would reduce U.S. emissions 17% below 2005 levels by 2020.  This bill is expected to pass the House this summer with Senate debate anticipated this fall.  Internationally, the United States is negotiating a new global climate agreement for the period beyond 2012, when the emissions mitigation commitments in the 1997 Kyoto Protocol expire.  President Obama and other global leaders hope to conclude this new agreement late this year in Copenhagen, Denmark, at the next meeting of the parties to the U.N. Framework Convention on Climate Change.

The fundamental challenge facing the United States on climate policy is making these two separate tracks come together.  U.S. domestic legislation must contribute to a genuine global solution but global arrangements must also fit or alter domestic political realities.  New domestic legislation designed to bring these two legal processes together, Climate Protection Authority, is essential.  Here is how it would work.

First, in consultation with Congress, the president would decide that future climate and energy agreements are to be approved by the United States by statute rather than as treaties. Statutes require a majority in both houses of Congress, whereas treaties require two-thirds of only the Senate. Federal courts have repeatedly upheld the constitutionality of bicameral statutory approval of international pacts – commonly called congressional-executive agreements. In fact, the United States enters into far more international agreements this way than by treaty, including some arms control agreements and environmental pacts and almost all trade deals.

Second, Congress should spell out in an international title in cap-and-trade legislation the conditions necessary for U.S. participation in new climate and energy agreements. For example, it should describe the role we envision for China, India and other major developing countries.  It should also make plain how, if U.S. conditions are met, the United States will help developing nations adapt to climate change and acquire clean energy technologies to enable them to pursue low carbon economic growth.

Third, cap-and-trade legislation should create a clear procedural pathway for new climate and energy agreements that meet these congressional preconditions. Good agreements should come into effect for the United States either without further congressional review or, more likely, pursuant to the streamlined approval process Congress has used for most trade agreements.  Trade Promotion Authority usually commits Congress to review new trade deals within ninety days with no holds, filibusters or amendments, and only a simple majority of both houses is required to approve these pacts.

The legal basis for Climate Protection Authority is clear and explained in the latest issue of the Virginia Journal of International Law.  The policy reasons for this approach are compelling.

Like trade and arms control agreements, energy and climate pacts are lengthy to negotiate, hard to undo and negotiated in successive “rounds.” This means that both ends of Pennsylvania Avenue need to work together upfront to make the agreements come out right and have in place procedures to ensure approval of agreements the United States actually negotiates.  And like trade talks, climate negotiations resemble the constant tinkering of domestic legislation far more than the long-lived treaties that the founders envisioned.  Statutory approval of climate change congressional-executive agreements would acknowledge this reality.

The Constitution gives a special role to the House on economic issues. Major energy legislation and negotiation will affect every sector of the economy and should come before the full Congress, not just the Senate.

Other nations would be more likely to meet our terms, for they have come to distrust our treaty-making process. These countries are reluctant to make politically difficult concessions only to see the United States stay out of the agreement in the end. By creating a workable approval process for agreements that meet enumerated statutory conditions, the path to U.S. participation would become clear and U.S. negotiators would be able to extract needed concessions.

It’s unrealistic to think Congress has the time and attention to take up domestic legislation and an international agreement separately (in whatever order). It is even more unrealistic to assume that an international treaty would be consistent with U.S. legislation and congressional wishes unless Congress has created in advance a process that helps ensure this alignment.  In twenty years of climate diplomacy neither Congress nor the Senate has given the President of the World a clear blueprint for U.S. global leadership on climate change.  The 1997 Byrd-Hagel resolution merely advised President Clinton to avoid signing what would become the Kyoto Protocol and more recent calls by the Senate for U.S. leadership have been general and vague.  America needs a well-defined plan for climate cooperation and that plan should have the force of law.

President Obama and Congress together have an opportunity to overhaul U.S. energy policy and build a durable global framework for protecting the climate. Given the challenges involved, they would be wise to create new Climate Protection Authority that moves the domestic and international transactions in tandem now.

A Response to Robert Ahdieh and David Fontana

by Mark Tushnet

I appreciate the comments from Professors Fontana and Ahdieh, and don’t have much to quarrel about with them.  They offer useful correctives or supplements to my argument.

On the question of the scope of the argument – that is, the nations where we can expect convergence in constitutional law – my essay notes one important exception, and Professor Fontana raises a question about another.  My essay excepts resource-extracting nations from its scope, largely because such nations do not need to compete with respect to attracting significant numbers of people with high levels of human capital.  Professor Fontana’s question about China raises, I think, similar issues.  It’s not that China is a firmly authoritarian nation, although of course it is, but rather two other things. First, it is simply so large that it might be possible for it to develop the requisite numbers of people with high levels of human capital on its own, without competing for them across borders – and its authoritarian nature might make it possible for it to retain them once trained.  Second, the Chinese market is so large that outsiders might be willing to suppress their preferences for fundamental rights in exchange for the profits to be gained by operating in China (or, alternatively, international businesses could supply people with high levels of human capital for work in China who come from the less rights-concerned tail of the distribution of preferences among such people).

On another question Professor Fontana raises, I would note my view that the expansion of programs of international exchange at the student level has been quite dramatic – not merely the perhaps special case of the Erasmus program within the European Union, but more generally.  The presence of exchange students in classrooms around the world is another of the bottom-up processes that I think likely to affect convergence.

Professor Ahdieh’s discussion of bilateral investment treaties is an extremely important corrective to my argument, and I thank him for it.  Dispute-resolution mechanisms in BITs can indeed substitute for domestic constitutional protection of investment capital.  The question, I think, is how much they can substitute.  There’s a tradeoff between BITs and domestic constitutional law, with respect to the degree of control domestic decision-makers have over implementing institutions.  For domestic constitutional law to “work” in this area, the implementing institutions have to be independent of the nation’s political class – but the political class is not going to want them to be “too” independent.  Yet, outside investors will not be happy with an implementing institution that isn’t independent “enough.”  The converse tradeoff occurs with BITs.  The domestic political class will have to give up something when it agrees to arbitration under a BIT, but it won’t want to give up too much.  I think it’s an important enterprise – and I suspect that someone has already done some work on it – to determine the relative tradeoffs, or, put another way, the rate of substitution between BITs and domestic constitutional law.   Professor Ahdieh’s brief comment raises all these questions, and I would hope to take them into account in any revisit to my essay’s topic.

A Response to Mark Tushnet by David Fontana

by David Fontana

[David Fontana is a Professor at George Washington University School of Law]

Mark Tushnet has written another interesting paper, yet again combining his background in American and comparative constitutional law.  Tushnet argues—with some qualifications—that there are major structural pressures leading to the globalization of a genre of provisions of domestic constitutional law.  Tushnet’s paper is shorter, so there are many claims that can only be discussed by necessity in less detail.  But I want to use my space to raise some methodological questions and requests for clarification, and then raise some substantive responses to his article.

First, let me discuss my questions about methodology and calls for clarification.  Before being asked to evaluate Tushnet’s claims, I would want to know more clearly precisely which countries he is referencing.  He talks about “nations that compete internationally for investment and human capital, with classes of lawyers able to assert some autonomous pressure on a nation’s government.”  Does that include China, which surely meets the first criteria, and maybe less so the second criteria?  Does that include Colombia, which is better on the second criteria and maybe less good on the first criteria? This call for clarification is related to a note about methodology.  There are actually indices of protections of rights, and so it is possible to look into whether Tushnet’s claims about the globalization of constitutional law have actually played out in practice, and if not what caveats he might add to this analysis.

Second, let me discuss my substantive comments.  It strikes me that many of the pressures leading to the globalization of constitutional law that Tushnet discusses might just result in a quite narrow globalization.  As Tushnet briefly notes at a few points in his Article, the elites that prefer the protection of rights might prefer protection of the rights that global elites find most relevant.  The evidence that those involved in international business care about the rights of others (either for its own sake or because of a slippery slope concern that once rights are violated as relates to others they might be violated for international business) is not that strong.

This limited nature of globalization referenced above might be taken even farther.  Only certain schools might be subject to the globalizing pressures that Tushnet describes—maybe the top few elite law schools in other countries, and likewise here (the globalization of law faculty, students and classes is much less pronounced at schools outside of a handful of the top law schools in the United States).  Only certain lawyers might be subject to globalizing pressures.  It is true that the small town family lawyer in Nebraska might have more cases that involve non-American law, but all the evidence suggests that they deal with non-American law still only very, very rarely.  And only certain courts might be subject to the globalizing pressures that Tushnet describes.  It might affect the Constitutional Court in a country, but not other courts (since maybe only the Constitutional Court will have lawyers who practiced in big cities, went to super-elite law schools, and only that court will deal with major overseas interests).

Finally, there are many ways in which the globalization that Tushnet describes, however broad in terms of the substance or reach of the constitutional provisions being enforced, might be much more limited than we might imagine because preferences are not fixed.  An interest in the protection of rights and in constitutional principles is post-materialist.  As Ronald Ingelhart and others have discussed, our interest in post-materialist political issues is a product of a certain sense of economic security that has pervaded the developed world (Inglehart is really talking about global political life after 1970).  When countries hit hard economic times, the structural dynamics that led to globalization might cut against it.  Global elites care less about protecting the rights of others, or non-business rights, when their very existence is at stake.  In other words, much of constitutional law involves luxury goods.  And with us facing a global recession, there might be to reason to believe there will be at least some inevitable retrenchment of the globalization of constitutional law.

A Response to Mark Tushnet by Robert Ahdieh

by Robert Ahdieh

[Robert Ahdieh is a Professor at Emory Law School]

At the outset, my thanks to the editors of the Virginia Journal of International Law for inviting me to contribute to this symposium, to my friends at Opinio Juris for hosting it, and to Professor Tushnet for his valuable contribution to ongoing debates about constitutionalism, globalization, and their interrelationship.

Needless to say, Professor Tushnet’s essay posits a bold claim: that we are moving inexorably toward a globalized constitutional law. I am deeply sympathetic to this claim – not merely as a positive matter, but in normative terms as well. Bracketing these sympathies for the moment, however, I propose to devote this post to a critique of the first of the pair of “bottom-up processes” of inevitable globalization that Professor Tushnet – borrowing from Professor David Law – highlights in the essay.

That first claim posits that national-level competition for investment capital will drive nations toward heightened constitutional protection of property rights, including by way of independent courts. I concur with Professor Tushnet about the underlying market dynamic at work. Global competition for capital – a competition in which the United States itself is increasingly a competitor – is quite fierce. Mechanisms of competitive advantage, including in the supply of desired institutions, would consequently seem to be a high priority for national policymakers.

If recent years are any indication, however, national advantage in such competition has not primarily been sought by way of constitutional law and independent courts. Rather, it has been sought by way of international law and independent arbitral tribunals.

I refer, of course, to the much-discussed rise of bi-national investment treaties (“BITs”) over the last several decades. In the 1970s, fewer than a dozen BITs were entered into each year. By the 1980s, that number had doubled, generating a total of 700 BITs by 1994.

As a matter of substantive law, BITs are designed to provide foreign investors with just the kind of protection against threatened expropriation that Professor Tushnet suggests can be expected to drive substantive changes in national-level constitutional norms. By way of process, meanwhile, BITs empower investors to bring non-espoused claims directly against the host state – an innovation that remains the exception rather than the rule in international law, yet would seem to offer a ready alternative to investors’ reliance on the national court system. (In their earliest incarnation, of course, such investor protections – including against “denials of justice” – were designed precisely to allow foreign nationals to avoid national courts.)

National competition for investment capital, then, can be – and has been – pursued with no need to engage in messy efforts at constitutional reform, let alone the extension of constitutional protections to domestic constituencies.

The BIT route may, of course, be inferior to national-level constitutional reform in any given case. Given the particular dynamic in a given country, for example, BITs’ differential protection of foreign and domestic actors and their seeming whiff of imperialism might prove politically problematic.

But a more important caveat might be the following: Some (including myself) have identified a species of “constitutional” harmonization in the gradual emergence of substantive and procedural norms at the international level, by way of the decisions of transnational institutions, including the international arbitral tribunals charged to adjudicate investor-state disputes arising under BITs.

This would seem to echo what Professor Tushnet casts as a “top-down” process of the globalization of constitutional law. Given its genesis in the competition for investment capital he identifies as a “bottom-up” process, on the other hand, it might be better understood as a hybrid dynamic of sorts.

In fact, one might wonder whether much of the globalization of constitutional law does not take place at the confluence of top-down and bottom-up processes, such that any sharp demarcation between them becomes difficult to sustain.

At a minimum, however, the widespread reliance on BITs noted above would suggest that constitutional globalization in the form of national-level constitutional reform and the emergence of independent courts may not be entirely inevitable.

The Inevitable Globalization of Constitutional Law

by Mark Tushnet

[Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School]

The argument for “The Inevitable Globalization of Constitutional Law” identifies two general processes – top-down and bottom-up – pushing toward convergence of basic constitutional principles in a rather large number of jurisdictions, those that participate in world-wide markets requiring significant cross-border flows of investment and human capital.  We can talk about which jurisdictions are included and excluded, and why, if that’s the way the conversation develops, but for this initial post I’ll confine myself to describing the mechanisms of convergence.

The top-down processes have received the most attention in the literature.  These include the development of networks of judges who exchange ideas and become familiar with the way constitutional law is done in other jurisdictions, and the influence on domestic law of transnational “adjudicatory” bodies such as the European Court of Human Rights and the various United Nations committees dealing with human rights.  In addition, many transnational NGOs advocate the adoption of universal rules.

Bottom-up processes are less familiar but perhaps more important.  David Law has brought to our attention some effects of economic globalization on constitutional law.  He emphasizes the interests of transnational investment capital and of people with relatively high levels of human capital who migrate, temporarily or permanently, to maximize the returns on their human capital.  As the so-called Washington consensus showed, transnational investment capital has a strong interest in constitutional protection of property rights, to insure returns against the risk of expropriation.  And, independent courts created to protect property rights may have spill-over effects on the protection of other basic rights.

People with relatively high levels of human capital tend to have a preference for basic rights like privacy and free speech, at least for themselves.  They may be reluctant to relocate to jurisdictions where they will not have those rights.  To attract such capital, regimes will offer constitutional protection for those rights.  It may be difficult to “segregate” constitutional protections so that they are provided only to those with high levels of human capital and not to the population generally.  And, it may be that the preferences for constitutional protection are not entirely self-interested:  People with high level of human capital may prefer to live in jurisdictions where everyone has freedom of speech, for example.

In addition, in public law as in private law transactional lawyers have an interest in reducing the costs of transactions, many of which must be developed with an eye to domestic constitutional law, by reducing the differences among the law applicable in different jurisdictions.  Convergence in constitutional law is an attractive method of cost-reduction, though of course not the only one.

Finally, I should note that “convergence” or globalization doesn’t mean that the specific versions of constitutional principles will be identical across jurisdictions.  There may be family resemblances among the principles, or – as discussions of proportionality as a “universal” rule of law suggest – approaches to constitutional interpretation.  Such resemblances may be enough to reduce the learning costs for transactional lawyers sufficiently, and to enable people with relatively high levels of human capital to move comfortably from one to another jurisdiction.

Of course there are lots of qualifications that need to be inserted to flesh out the argument and identify its precise scope, but I hope that this is enough to give a general sense of why I think that the globalization of constitutional law is inevitable.

A Response to Ronald Slye

by Lisa Laplante

As an eminent scholar on the topic of amnesties, I appreciate Ron Slye’s thoughtful response to my analysis of the Barrios Altos case.  His critiques are certainly ones that I anticipated when offering my broad reading of the Inter-American Court of Human Rights’s landmark ruling.  As a regional body, the Court can only issue judgments that bind member States.  Thus, we will need to wait and see how the Barrios Altos jurisprudence influences decisions in other regional and international systems, and whether these bodies also begin to challenge the legality of amnesties.  Ultimately, even in the event that an international consensus develops rejecting amnesties (which preclude any type of criminal investigation or prosecution), it is unlikely that every human rights violator in the world will be criminally prosecuted.  Indeed, in transitioning countries similar to those mentioned by Slye (Rwanda, Cambodia, Nazi Germany), it will rarely be possible nor feasible to bring all alleged human rights violators to trial.  Instead, as Slye suggests, we may witness countries seeking to address mass atrocities relying on mechanisms like prosecutorial discretion, plea bargaining, sentence reduction and pardons to provide a more nuance –and local– approach to accountability.  Undoubtedly, these options might result in more leniency for “foot soldiers” and greater focus on civilian and military leaders who hold the greatest responsibility for setting policies of state violence and repression –a trend already underway in international, hybrid and national tribunals.  However, these criminal law mechanisms at least do not force societies to confront the all or nothing option of trials v. total forgetting for the sake of political expediency.  Instead, a flexible criminal justice process emerges that upholds the primacy of accountability, important for building the rule of law and meeting the justice demands of victims-survivors.  On this last point, I believe that Slye and I concur.

A Response to Lisa Laplante by Ronald Slye

by Ronald Slye

[Ronald Slye is the Director of International and Comparative Law Programs and Professor at Seattle University School of Law]
Lisa Laplante provides those of us interested in international criminal law, and more specifically the legitimacy of utilizing amnesties during a period of societal transition, with a valuable service by pointing us to, and carefully parsing, the Barrios Altos decision of Inter-American Court of Human Rights.  It is a decision that, as she rightly states has not received as much attention as it deserves.  While I am sympathetic to her claim that this decision stands for the position that all amnesties are illegitimate and that there is thus an obligation to prosecute, I think the question is much more open and fluid.  There is, first, the minor and more technical point that no matter how well reasoned the decision, it is only one decision of one regional court that has no precedential force on any other international body.  Thus, even if one interprets it the way that Ms. Laplante does, its force is mostly persuasive, or at best evidence of an emerging rule of customary international law on the legality of amnesties.  The more important point for me is that I think we risk oversimplifying the issue by reducing it to criminal trials versus amnesty.  Ms. Laplante does not do this – and in fact is clearly aware of the many different types of mechanisms that fall under the rubric of amnesty.  The question is really one of accountability, and more particularly what is the minimum required to address adequately gross violations of human rights.  It seems to me that some forms of amnesty, selectively used, may be justified in some situations.  Surely international law cannot, and should not, require criminal prosecutions in all cases.  The enormity of the task such a rule would create in the context of the Rwanda genocide (though one could point to the Nazi Holocaust or the Cambodian atrocities to make the same point) must give us pause.  On the other extreme, of course, it is clear that blanket amnesties are illegal – and the jurisprudence of the Inter-American human rights system has been at the forefront of converting this assertion into a principle of international law.  There is, however, a lot of grey area in between.  It is the area in which one also finds other less controversial legal mechanisms such as pardons, prosecutorial discretion, sentencing, and statutes of limitations.  I do not think that international law clearly speaks to whether some of the amnesties that fall within this middle area are legal or not.  Of course, one might even ask whether international law should answer this question, or whether instead it is better to leave some discretion to communities to develop their own forms of accountability for mass atrocities.  My view is that international law must require some form of accountability for mass atrocities, but what form that accountability may take must allow for more than traditional criminal prosecutions.

Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes

by Lisa Laplante

[Lisa J. Laplante is Visiting Assistant Professor at Marquette University Law School]

Until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights.  The politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities.  Latin America exemplified this trend in the 1980s, while also popularizing truth commissions.  The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful. However, growing international human rights and international criminal law jurisprudence began to slowly put in question the legality of amnesties.   Recognition of individual rights chipped away at absolute state sovereignty by building recognition of the state duty to investigate, prosecute, and punish those responsible for serious violations of human rights.  In addition, the end of the Cold War saw a new reliance on international and hybrid tribunals for criminal prosecutions, a remedy left largely dormant since the Nuremburg trials in 1945.  Jurisprudence emanating from these tribunals solidified the principle of individual criminal liability for egregious human rights violations, which previously was thought to trigger only liability based on the theory of the wrongful acts of states.

Currently, scholars now acknowledge that to be legitimate, amnesties must conform to legal norms thus creating a standard of ‘qualified amnesties’ for customary and treaty law prohibiting bars to prosecution for war crimes, enumerated treaty crimes, and crimes against humanity.  Yet, this discourse suggests that it is still possible for nations to resort to amnesties for other serious human rights violations during political transitions.  Yet, by merging the fields of human rights law and international criminal law, one can arguably resolve this current debate by finding amnesty in transitional justice settings to be unlawful.  Specifically, the Barrios Altos case, a seminal decision issued by the Inter-American Court of Human Rights (IACHR) in 2001, declared that amnesty laws promulgated in 1995 by former Peruvian president Alberto Fujimori were contrary to the American Convention on Human Rights, and thus international law.  Recent scholarship has ignored this decision, or otherwise interpreted it overly narrowly, despite its potentially sweeping impact on the field of transitional justice.   Yet, I argue for a broader reading based on a close reading of both the Judgment on the Merits (and its concurring opinions, the IACtHR’s own Interpretation of the Judgment, subsequent opinions issued by the IACtHR, as well as and state practice relying on Barrios Altos.  These sources suggest that the Barrios Altos ruling stands for the principle that all amnesties are contrary to international law and not just self-amnesties.   Thus, a state cannot satisfy the duty to investigate through other types of noncriminal investigations such as truth commissions and moreover, they cannot provide immunity for serious human rights violations which do not rise to the level of crimes against humanity, treaty crimes and war crimes.  Arguably, with this more expansive reading, it is possible that the truth v. justice dilemma may no longer exist: instead, criminal justice through trials must be done.

Detention Scholars’ Task Force

by Kenneth Anderson

I am briefly interrupting the erudite VJIL symposium to note that a task force announced by the administration to discuss and come up with ideas on how to address detention, Guantanamo, etc., is meeting today in DC.  I am unable to make it today, but supplied a number of comments via Ben Wittes, and I send it all good wishes in coming up with something that strikes the right balance between liberties and security.

A Response to Paul Dean

by CarrieLyn Guymon

I share Paul’s hope that my article will prompt further consideration of the use of IEEPA sanctions to address the problem of proliferation.  The article aims to demonstrate that the way E.O. 13,382 has been used so far is unlikely to prompt any successful legal challenge, but that does not mean the issue should not give us all pause.  Since the first use of IEEPA by President Carter, succeeding administrations have gradually expanded its use.  Yet not one of the institutions empowered to constrain the executive’s powers has shown the inclination to do so.
The U.S. Congress, as author of IEEPA, is best equipped to put the brakes on this expansion of presidential power.  Congress could pass a joint resolution to terminate the fourteen-year-old national “emergency” declared by the President related to the proliferation of WMD, perhaps on the basis that such an ongoing state of affairs cannot properly be classified as a temporary emergency.  Congress has shown neither the inclination to do so, nor the possibility of having the veto-proof supermajority necessary to make it happen against the wishes of the President.  Congress could also amend IEEPA to give itself more control over the exercise of presidential discretion in imposing sanctions.  But no such bill has been proposed.  Instead, Congress appears to be one of the biggest fans of the executive use of IEEPA to declare emergencies and impose sanctions and seems to wish it were used even more often.
As discussed in the article, U.S. courts also provide no meaningful check on the use of IEEPA-authorized sanctions programs like E.O. 13,382.  Under every possible legal theory for challenge, judges find an easy out for judicial deference to the executive.  For example, courts have concluded that those who support terrorism receive all the process that is due when their assets are frozen without prior notice or an opportunity to be heard because the government interest at stake is too great and prior notice would allow the funds to be spirited away to support terrorism.  The interest in preventing proliferation—like stopping terrorism—is simply too compelling for courts to question.  European Courts have likewise deferred to sanctioning authorities, due to the primacy of international legal obligations (like Security Council actions taken under Chapter VII) over domestic law within the E.U.
Thus, the law as it currently stands allows the executive to impose economic sanctions on foreign persons deemed to be supporting proliferation without prior notice given the grave threat to national security posed by proliferation.  The law, however, could be changed.  Neither President Obama nor the current Congress nor the courts shows any indication of changing the law.   Excessive use or abuse of this broad grant of authority in the future could certainly shift the tides.

A Response to CarrieLyn Guymon by Paul B. Dean

by Paul Dean

[Paul B. Dean is Attorney-Adviser, Office of the Legal Adviser, at the U.S. Department of State]

Thanks to Opinio Juris and VJIL for hosting this discussion and
thanks of course to Professor Guymon for raising this interesting topic.  I’m happy to provide what I hope will be a constructive response.  I
must emphasize that any views expressed herein are my own and not
necessarily those of the State Department or the U.S. Government.  Professor Guymon touches on a host of interesting topics in her article
and blog post, including whether the problem of WMD proliferation can be
appropriately addressed by targeted “emergency” sanctions based on IEEPA
authorities, how best to “multilateralize” these targeted sanctions, and
whether the U.S. asset blocking program under E.O. 13382 raises Due
Process concerns. 

Rather than attempt a critique, I’d simply like to highlight some
aspects of these topics that I think could benefit from further thought.  Professor Guymon concludes her post by noting that the executive’s
”judicious use” of E.O. 13382 adequately addresses any concern that an
IEEPA national emergency might continue indefinitely.  I would like to
see this developed a bit more.  For example, while “judicious use” might
ameliorate some policy concerns, I wonder if Professor Guymon is
introducing a legal argument that the use of IEEPA authority in such
circumstances might be dependent on someone (the executive? the
Congress? the courts?) concluding that its use was “judicious.” 

Professor Guymon also argues that “Due Process is not seriously
infringed by targeted sanctions and it cannot be absolute in the face of
the grave threat posed by proliferation.”  I’d like to see that
developed a bit more too.  In her article, Professor Guymon points out
that the reality of the nonproliferation challenge is that – in order to
use E.O. 13382 (and similar E.O.s) effectively – the executive must
sometimes block assets without prior notice and rely on classified
information that might not be available to the blocked entity in
subsequent litigation.  Further, entities sanctioned under these
authorities are almost uniformly non-citizens.  This presents
interesting questions regarding the applicability and scope of
Constitutional Due Process protections.  In other words, what process
(if any) is due when the U.S. has classified information indicating that
Foreign Company X is facilitating the transfer of missile technology to
a country of proliferation concern, such as Iran?  The cases arising under E.O. 13224 – which allows for asset blocking in
the terrorism context – may be instructive, and courts usually accord a
high degree of deference to agencies in asset blocking cases.  It may
also be useful to study the EU’s experience with similar targeted
sanctions programs. 

I’d also like to hear others’ views on these subjects, which will likely
remain in sharp focus as the U.S. develops flexible tools to combat
increasingly transnational, non-governmental proliferation patterns, as
typified in the black market nuclear network of A.Q. Khan. 

I think Professor Guymon’s article provides a very useful starting point
for an important and interesting discussion (certainly important for
everyone; interesting, at least, to me) about our legal tools for
addressing the problem of WMD proliferation.

The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters

by CarrieLyn Guymon

[CarrieLyn Donigan Guymon is Adjunct Professor at Golden Gate University School of Law]

I would like to thank Opinio Juris and the staff of VJIL for providing this forum to discuss my recent article, The Best Tool for the Job:  The U.S. Campaign to Freeze Assets of Proliferators and their Supporters.
I started the article in the waning months of the Bush administration, but thus far the Obama administration appears to agree with my thesis that the past administration’s practice of freezing the assets of proliferators and their supporters is one worth perpetuating.  Between June 2005, when President Bush signed Executive Order 13,382 (the authority for imposing the asset freeze and related measures), and January 2009, when he left office, 135 entities and individuals were designated for these sanctions.  The Obama administration has already made a significant number of additional designations under E.O. 13,382.
This is actually a pretty sparing use of a very broad authority granted by the International Emergency Economic Powers Act, or IEEPA.  President Clinton was the first to use IEEPA in a more targeted way, against terrorist organizations and their members versus countries and their citizens.  President Bush went one step further by targeting not only terrorists, but also those who aid or abet terrorists or terrorism.  Bush then replicated that pattern of addressing support—particularly financial support—with respect to WMD proliferators and proliferation.  While terrorism and proliferation are undeniably grave threats to the United States, they are not a perfect fit for the authority envisioned by Congress when it passed IEEPA.  Congress intended IEEPA to be used by the President to address rare and brief emergencies, not such enduring issues on the U.S. agenda as terrorism and the proliferation of WMD.
The Bush administration attempted to make multilateral its unilateral asset freeze sanctions via the U.N. Security Council.  Resolutions directed at North Korea’s and Iran’s nuclear and weapons programs resemble E.O. 13,382 in targeting for asset freeze sanctions not only the proliferators themselves, but those who provide support (financial or otherwise) for proliferation or are owned or controlled by proliferators.  Resolutions 1718 (directed at North Korea) and 1737, 1747 and 1803 (all directed at Iran) have been implemented by the United States using E.O. 13,382.  In the case of Iran, the U.S. often justifies its designations of entities and individuals under E.O. 13,382 based on their presence on Security Council lists (or their relation to those on those lists).  And the U.S. also advocates the addition to the Security Council’s lists of entities already designated by the U.S. under the E.O.  With the private sector’s voluntary shunning of entities designated by the U.S., there is an argument that multilateral designation is almost a fait accompli.
This sanctions strategy toward proliferation has met with criticism both for doing too little and for going too far.  Many would prefer harsher sanctions on Iran in particular.  Others worry that freezing assets and blacklisting individuals and entities in this way denies those designated their rights to due process.
These sanctions actually strike the correct balance.  And attempting to make them multilateral also makes sense—the United States cannot go it alone when confronting the threat of proliferation.  The U.S. taking a stand that it will not allow its financial system to be accessed by proliferators, while asking others to do likewise, is the right thing—and the best thing—to do.  Legal challenges to the same approach with respect to terrorism—surveyed extensively in the article—have been unsuccessful.  Due process is not seriously infringed by targeted sanctions and it cannot be absolute in the face of the grave threat posed by proliferation.  While it is troubling that the national emergencies presented by terrorism and proliferation seem unlikely to ever be declared over, judicious use of the broad authority under IEEPA assuages that concern.

Should We Call it Filmfare?

by Kevin Jon Heller

The Public Editor of The New York Times has a nice piece today criticizing the newspaper’s “seriously flawed and greatly overplayed” front-page article “1 in 7 Detainees Rejoined Jihad, Pentagon Finds.”  Others have thoroughly debunked similar Pentagon reports — see here, for example.  I just want to call attention to the following paragraph from the Public Editor’s article, which is stunning example of why we need to take anything the Pentagon says about the danger of releasing Gitmo detainees cum grano salis:

In 2007, three men were listed because they participated in an anti-Guantánamo film…. Bryan Whitman, a Pentagon spokesman, said the reports represent the best information the government has at the time and that it changes. He said that just appearing in a film would no longer be considered a return to the battlefield.

Good to know.

A Response to Jean Allain and Ryszard Piotrowicz

by Anne Gallagher

I begin by thanking Ryszard Piotrowicz and Jean Allain for agreeing to take on the somewhat delicate task of commenting on my critique of James Hathaway’s article.  I am sure they will not be offended by my expressing sincere regret that Professor Hathaway himself declined to participate in this symposium.

Neither respondent challenges (or seriously interrogates) my central conclusions: (i) Hathaway has misrepresented the nature and scope of the legal regime around both slavery and trafficking and, in relation to the latter, severely underestimated its impact and potential; (ii) his proposal for an alternative system of protection based on the international legal prohibition on slavery is highly problematic, based on an outdated understanding of the relevant structures, and likely unworkable; (iii) there is no evidence available to support his allegation that powerful countries of destination were able to trick the rest of the international community into accepting a covert extension of border controls; (iv) there is no evidence available to support his contention that the development of an international legal response to trafficking and migrant smuggling has resulted in a worsening of the plight of asylum seekers and refugees; and, (v) the proposed ‘quagmire’ of human trafficking is a fallacy.  To suggest that efforts to stamp out trafficking are in opposition to core human rights goals is to misunderstand, completely, both the nature of the phenomenon and the central place of human rights in any effective and credible response.

Both respondents nevertheless raise questions on several aspects of my critique. The following counter-response is provided with an accompanying observation that the issues raised do not call into question any of the conclusions listed above.  Ryszard Piotrowicz opines that trafficking may be best approached as a tort and a crime rather than as a human rights violation.  Certainly at the national level, this will often be the preferred approach, not just for trafficking, but also for many other human rights violations for which criminal or civil law may be invoked including discrimination and torture.  When it comes to righting wrongs, a functioning justice system will almost always offer superior odds to its international or regional equivalent.  That conclusion does not negate a central place for international law, including international human rights law, in providing impetus, authority (including legal justification) and structure to an effective national response.  International law also furnishes the foundation upon which the critical secondary rules of responsibility can be identified and applied.  In the present context, such rules affirm a range of obligations on States – not just to protect, support and provide remedies to victims, but also to investigate and prosecute trafficking cases with due diligence; to act against public sector complicity in trafficking; to cooperate with other States; and to prevent future trafficking.

As a result of his involvement in the drafting of UNHCR’s Guidelines on the issue, Piotrowicz is well-placed to warn of the limits of international refugee law for those who have been trafficked.  He is indeed correct that subsidiary/complementary protection will generally be of most relevance to trafficked persons.  As I noted, the very modest advances that have taken place are ultimately as constrained as international refugee law itself and will likely only permit a small fraction of individuals moved into exploitation across national borders to secure the protection they need (845).  In the end, this does not detract from the finding that developments in international law around trafficking do not appear to have further damaged an already deeply compromised international system for protection of refugees.

Regretfully, Jean Allain’s response does not address the issue of trafficking, rather focusing on one sub-aspect of my critique: the definition of slavery in international law.  I am happy to have provided Dr. Allain with the opportunity to canvass his recent, extensive and admirable scholarship in this area.  As my article makes clear, the much-overdue release of the travaux preparatoires to the Slavery Conventions has provided a new and important dimension to the question of what is slavery.  The decision of the Australian High Court in R v. Tang (which I also cite) represents another step forward in clarifying the parameters of slavery in contemporary international law.  We are indeed on the cusp of a new era.

It is with a considerable measure of gentleness (and perhaps a dash of scholarly pride) that Allain excuses Hathaway’s manipulation of the legal definition of slavery on the basis of the latter’s lack of access to the travaux preparatoires.  I disagree completely.  The debate over the substantive content of the international legal norm around slavery did not begin with the travaux preparatoires and will likely not end with them.  My principle objection (strongly buttressed by, but ultimately not reliant on, the travaux preparatoires) was to Hathaway’s uncritical adoption of an understanding of slavery that did not even match the language of the universally accepted international legal definition.  I also objected to his failure to take account of recent developments that were a matter of public record.  These included advances within international criminal law on the closely related issue of enslavement: advances that affirmed, independently of the travaux preparatoires, the application of the relevant prohibition to both de jure and de facto slavery and that provide clear warning against the kind of popular, expansionist conception of slavery espoused by Hathaway and increasingly favored by crusading legal scholars, politicians, social campaigners and the mass media.

International law is burdened with an unedifying record when it comes to dealing with private exploitation.  Amongst those of us working (literally) in the field, there is widespread agreement that forced labor, forced and otherwise exploitative prostitution, child sexual exploitation, coerced marriage and debt bondage are certainly not going away and are quite probably getting much worse.  The international community is struggling to deal with new waves and even new forms of profiteering.  Viewed from that perspective, the requirements of an international legal framework are clear: an unambiguous definition of the problem; an equally sharp identification of core State obligations; and effective means of monitoring and encouraging compliance.  After decades of wasteful prevarication not particularly challenged by the academy, that goal may finally be in sight.  Certainly the Trafficking Protocol, and its associated legal developments which I have documented, provide justification for cautious optimism. I respectfully submit that at this important juncture, the appropriate task of the international legal practitioner is a relatively modest one: our job is to document, to analyze and to explain the law, including its weaknesses, to those who, (in the words of d’Aspremont, note: 228) are engaged in actually using it.  We do our profession and our most important constituents a favor by remembering that, at the end of the day, it is the law that properly directs the legal scholarship, and not the other way around.

A Response to Anne Gallagher by Ryszard Piotrowicz

by Ryszard Piotrowicz

[Ryszard Piotrowicz is a Professor of Law at Aberystwyth University]

I would like to make three points in relation to the articles by Prof. Hathaway and Dr Gallagher.
First, It seems to me that Dr Gallagher effectively refutes the basic argument of Prof. Hathaway, that the developments in trafficking in human beings (THB) have served to distract attention from what is asserted to be the much wider problem of slavery.  I do not wish to comment on the core issue of that debate but rather to focus on two further matters which are nevertheless relevant to our understanding of THB, and which do come up in these articles.
Second, I think that it is not always helpful to insist on THB as a human rights violation. THB is fundamentally a private enterprise, i.e., a tort and a crime.  In the absence of State involvement or complicity, where is the human rights violation?  Of course, the State has obligations towards victims but these really occur after the person has been trafficked (e.g., obligations towards appropriate care and support) or else to prevent future trafficking (possible international protection obligations).  It is not the THB itself, but the aftermath, that gives rise to State obligations for the rights of victims.  Of course I accept that the State has an obligation to ensure rights for all those within its jurisdiction – which it does through passing appropriate legislation which is then enforced.  Dr Gallagher says there are plenty of human rights instruments that address States’ obligations regarding private exploitation (823).  I agree, but the actual THB is not normally a breach.  That is why I prefer the term “human rights approach” to THB – this can acknowledge the human rights dimension of THB.  I think there is an inherent good in calling THB what it is: a serious crime.  That does not demean the victims; nor does it deny their human rights (where relevant).  Dr gallagher says that the public/private split has been eroded and that it is not credible for States to deny an obligation to deal with THB just because it is a private activity (824-5).  I agree, but this is because States have an international obligation to tackle THB.  The THB nevertheless is not the fault of the State (usually) and, to that extent, one can maintain the public/private distinction.  I nevertheless agree with Dr Gallagher’s point that desirable changes have been effected, even if human rights law has not always been the medium of change (847).
Third, specifically on refugee status for victims of THB – it is clear to me that the law of international protection is very important in assessing States’ obligations with regard to THB.  But this will be more with regard to subsidiary/complementary protection than refugee status. At page 844, Dr Gallagher focuses on refugee status while acknowledging that it may have limits.  In actual fact, normally the only way potential victims of THB will qualify is if they are members of a particular social group.  This is possible but I don’t think it will occur very often.  In particular, it might apply to those in the foreign State who fear return to their home State because of risk of re-trafficking (and who therefore might argue that their status as victims of THB, which is an immutable fact, like being left-handed, or blue-eyed) is something they have in common with others beyond the mere fear of persecution, hence making them MPSG.  So the risk will be with regard to future danger, of course.  How many people will be in a foreign country, who have never been trafficked before, but fear being trafficked if they go home? Surely the real risk is that of re-trafficking?  In this sense, even if Prof. Hathaway is right, that anti-THB law has been used to promote border control laws in destination countries, that does not matter here from a protection perspective because those needing international protection have, despite apparent legal obstacles, ended up in a foreign country.  They have probably been trafficked there.  The border controls have not stopped this.  All that said, the more likely obligation of the destination State will probably be subsidiary/complementary protection.

A Response to Anne Gallagher by Jean Allain

by Jean Allain

[Dr. Jean Allain is a Reader in Public International Law at the School of Law, Queen’s University Belfast and author of The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (2008) and “The Definition of Slavery in International Law” 52 Howard Law Journal 239 (2009)]

There is nothing like a ‘response’ piece to give readers a stark sense of the open schisms with regard to an issue of law. Anne Gallagher’s piece in the most recent edition of the Virginia Journal of International Law does just that, taking on James Hathaway’s overarching critique of the legal regime of human trafficking.  I would invite readers to consider both pieces, as they are well-written and researched, giving a sense of the meta-narrative of contemporary legal thought on human trafficking by two leading experts.  For my part, I wish to consider but one basis of the Gallagher’s critique of Hathaway’s piece: the definition of slavery in international law.
Gallagher takes issue with the definition of slavery being put forward by Hathaway as “‘any form of dealing with human beings leading to the forced exploitation of their labor’, including ‘the exercise of any or all of the powers attaching to the right of ownership over a person’”; stating that the first elements (re: “any form of dealing…their labor”) “remains unsupported in international law.”  I accept that conclusion, but it should be recognised that when Hathaway drafted his piece, he was not privy to the material on which Gallagher stakes her claim that the “expansionist interpretation, given wide currency through a series of UN reports, has now been rejected.”  That material is my 2008 The Slavery Conventions.

In April 2008, I was contacted by the Australian Human Rights and Equality Commission (HREOC), which was looking to intervene in a case, and asked if I might assist.  I provided them with a copy of the galley proofs of my book, as The Slavery Conventions, which had yet to be published.  In May, the online newspaper, The Australian stated that, “Brett Walker SC, the counsel for HREOC, quotes a book by a certain Monsieur Allain.”  Holding up the work in question, he says: ‘I understand I have the only copy in the country.’”   Published in June, the book is cited in the August 2008 case, before the Australian High Court, The Queen v. Tang which sets out for the first time in an authoritative manner that the definition of slavery in international law (re: ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’) applies in cases of both de jure but also de facto slavery.  It was in reading to The Queen v. Tang that I came across a citation for Hathaway’s piece.  As a result, Hathaway would not have been aware of The Slavery Conventions when drafting his piece.

I believe The Queen v. Tang delivered in August 2008 is a watershed for a legal consideration of slavery with the Hathaway and Gallagher pieces standing on either side of the divide.   Before August 2008, the most authoritative pronouncement on the definition of slavery in international law comes from the United Nations in the guise of the work of David Weissbrodt and Anti-Slavery International. It is this stream which Hathaway correctly follows. I might add here that I do not think Hathaway would be offended if I were to mention that I contacted him in November to congratulate him on his piece saying that it was one of the few works I had read which took the issue of slavery seriously.

And yet the Australian jurisprudence marks a shift in the understanding of slavery as defined by the 1926 Slavery Convention.  In 2007, the Court of Appeal of the Supreme Court of Victoria, Australia noted:

The understanding of the scope of the definition of slavery stated by Jean Allain is at odds with that of David Weissbrodt in his paper commissioned by the Office of the United Nations High Commissioner for Human Rights.  Weissbrodt concluded that the definition was intended to include the broader range of practices that had been addressed by the Temporary Slavery Commission of 1924, including debt bondage, serfdom, practices involving restrictions of liberty and personal control analogous to slavery, practices such as acquisition of women and girls in the guise of payment of dowry, and so forth.  It was not limited to chattel slavery, but required examination of the degree of restriction and control exercised over the person, rather than concentration on the criterion of ownership.

In that case, the Supreme Court of Victoria concluded that, “in final analysis, it is unnecessary to resolve the dispute between Allain and Weissbrodt.”  However, in August 2008, with The Queen v. Tang, the High Court of Australia did, in fact, resolve that dispute; using my research from the League of Nations Archives to demonstrate that the definition as set out the 1926 Slavery Convention has not been expanded to include lesser servitudes, but is to be read in such a manner as to include both situations of legal ownership of a person (which would bring to mind the Trans-Atlantic Slave Trade, but see the contemporary finding of chattel slavery in the 2008 Mani v. Niger case before the ECOWAS Community Court of Justice – and my case note in the April 2009 edition of American Journal of International Law); but also de facto slavery.  To understand what this distinctions means, consider the analogy to the drug dealer: he cannot make a claim before a judge against the theft of his heroin – he does not ‘own’ the heroin in law— but can still be found to exercises powers of ownership over his drugs, such as possession, if brought before a court of law.  In the same manner, a person may not – in law – own another human being, but she could exercise powers attaching to ownership – such as buying or selling a person in a de facto manner.

One must understand that where issues of slavery, human exploitation, and the law are concerned, there has been very little serious scholarship – both Hathaway and Gallagher – bring some much needed rigour to the area.  But much work still needs to be done and the field is evolving quickly.  For instance, the interchangeable use of the terms ‘practices similar to slavery’ and ‘slavery-like practice’ is – in law – wrong.  The first of these is a term of law, the ‘practices similar to slavery’ being those items set out in the 1956 Supplementary Convention as servitudes to be suppressed (i.e., debt bondage, serfdom, servile marriage and child exploitation); whereas ‘slavery-like practice’ is a term of art, coined at the height of the decolonisation process to apply to apartheid and colonialism but which never found its way into the corpus of international law.  In counter-distinction, the difference between ‘practices similar to slavery’ found in the 1956 Supplementary Convention and ‘servitude’ as found in international human rights instruments (see the ICCPR, the ECHR, the ACHR), should be understood as a false one; one brought on by the unwillingness of the negotiating States of the 1956 Convention to commit to ending servitude forthwith despite the Universal Declaration call to do exactly that (see my forthcoming “On the Curious Disappearance of Human Servitude from General International Law”, 11 Journal of the History of International Law 25 (2009)).  I expect the terrain of human exploitation in law to be re-drawn over the next few years in ways that it has not been throughout the twentieth century.

Hathaway’s consideration is state of the art at its time; while Gallagher’s critique, some six to eight months later, bringing into the equation an emerging narrative which takes slavery – in law – back to first principles and seeks to build an understanding of slavery in the shadow of the human right of an accused to know the charges against him. That narrative has yet to run its course and may challenge some of the elements of Gallagher’s own piece in the same way she challenges Hathaway’s work.  Beyond the Hathaway and Gallagher pieces, contemporary legal issues of slavery, trafficking and human exploitation have been left, on the whole, to a less than rigorous consideration of the law.  In so doing it raises the question of the regime of human rights as the best place to deal with such issues; as the twentieth century has demonstrated the failure to adequately deal with the prohibition against slavery as a human right.  Whereas the establishment of the International Criminal Court and the UN and European trafficking conventions, all products of the twenty-first century, have already done more within a criminal law paradigm to advance the jurisprudence and the agenda of anti-slavery and the fight against human exploitation than anything seen under the auspice of international human rights law.

Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway

by Anne Gallagher

[Dr. Anne T. Gallagher is the Head of Operations at Equity International, Technical Director of Asia Regional Trafficking in Persons Project, and the former UN Adviser on Trafficking]

My response to James Hathaway, written with the benefit of close involvement in the development of the new legal framework, as well as in its implementation at the national level in over forty countries, provides an alternative and a sharply differing perspective on the global battle to combat trafficking.  In considering each of Hathaway’s major concerns in turn, and discrediting the assumptions and authorities on which they are based, I identify a number of serious flaws in both interpretation and application.

First: The scope of the new legal regime has been misrepresented and its impact and potential underestimated.  The international legal definition of trafficking covers not the claimed three percent but a considerably greater proportion of those who have been exploited for private profit – both within and outside their own country.  Despite its serious weaknesses, the Protocol has served very well as both a framework and impetus for the generation of a comprehensive range of rights-based international, regional, and national norms and standards that articulate, with much greater clarity and precision than was ever previously possible, the obligations of states in relation both to ending impunity for traffickers and providing support, protection, and justice for those who have been exploited.  It is not helpful for the human rights lawyer or advocate to be aggrieved about the fact that these changes were generated outside the formal human rights system.  Nor is it productive to sound dire, ex post-facto warnings about the dangers of consorting with the enemy.  The international human rights system amply demonstrated, over many years that it was incapable of doing anything serious about trafficking and related forms of exploitation.  That system has now been given new and better tools with which to work. The real test of its effectiveness and relevance will lie in the way it responds to this challenge.

Second: As an alternative legal framework for dealing with exploitation of individuals for profit, the prohibition on slavery is not without its own serious problems and limitations. The definition of slavery in international law (certainly much narrower than claimed), the substantive content of the relevant norm, and its application to modern manifestations of exploitation remain contested and, in legal terms, relatively untested.  Accordingly, it is not likely that the prohibition could readily apply to more than a modest portion of those who require protection from contemporary forms of exploitation, including debt bondage and forced labor.  Critiques of the application and monitoring of the prohibition on slavery within the international human rights system serve to confirm the inadequacy of this prohibition as a sole or even primary framework of protection.

Third: There is no evidence available to support Hathaway’s two central contentions in relation to refugees: (i) that the powerful countries of destination were able to trick the rest of the international community into accepting a covert extension of border controls; and (ii) that the development of an international legal response to trafficking and migrant smuggling has resulted in a worsening of the already dire plight of asylum seekers and refugees.  In marked contrast, from a purely legal perspective, the response has served to reinforce the principle that asylum claims are to be considered on their substantive merits and not on the basis of the applicant’s means of entry.  It has also affirmed the applicability of international refugee law to asylum seekers who are smuggled and/or trafficked, and expanded the potential basis for the determination of refugee status to include those whose flight was caused by the threat or fact of trafficking.  The likelihood that stronger border controls against smugglers and traffickers will make it even harder for asylum seekers to meet the technical requirements of international refugee law serves to highlight the failings and inadequacies of the international system for refugee protection.  To propose, however, that states refrain from dealing with organized, profit-driven migrant smuggling (and trafficking) because doing so will inevitably make access to asylum more difficult is to confuse the problem and to obscure its most obvious solutions.

Finally, to suggest that efforts to stamp out trafficking are in opposition to core human rights goals is to misunderstand, completely, both the nature of the phenomenon and the central place of human rights in any effective and credible response.  Far from damaging human rights, the issue of trafficking has provided unprecedented opportunities for the renewal and growth of a legal system that, until recently, has offered only platitudes and the illusion of legal protection to the millions of individuals whose life and labor is exploited for private profit.

Virginia Journal of International Law, Vol. 49-4: Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles and two essays recently published by VJIL in Vol. 49:4, available here. Today, Dr. Anne T. Gallagher, Head of Operations of Equity International, Technical Director of Asia Regional Trafficking in Persons Project, and former UN Adviser on Trafficking, will discuss her article Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway. On Tuesday, Professor CarrieLyn Donigan Guymon, Adjunct Professor, Golden Gate University School of Law, will discuss her article The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters. On Wednesday, Professor Lisa J. Laplante, Visiting Assistant Professor, Marquette University Law School, will discuss her article Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes. On Thursday, Professor Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School, will discuss his essay The Inevitable Globalization of Constitutional Law. On Friday, Nigel Purvis, President of Climate Advisers, will discuss his essay The Case for Climate Protection Authority.

A Strange Aspect of the Australian Constitution

by Kevin Jon Heller

I’m not a comparative constitutional-law scholar, but I find it interesting that, pursuant to Section 44(iii) of the Constitution of Australia, no one can serve in Parliament who “[i]s an undischarged bankrupt or insolvent.”  The solvency requirement harkens back to the bad old days of U.S. history, when most States prohibited individuals who did not own property from voting.  But the requirement lives on in Australia — and may well force one of the leaders of the Greens out of Parliament:

GREENS leader Senator Bob Brown has accused the Tasmanian Government of trying to force him out of the Federal Senate.

Dr Brown last week received a letter from Forestry Tasmania, a wholly-owned State Government business, demanding he pay nearly $240,000 in legal costs by June 29.

The Greens Senator was ordered to pay the fees by the Federal Court, after he lost on appeal his long running court case against Forestry Tasmania to halt logging in the Wielangta State Forest on Tasmania’s east coast.

Dr Brown claimed the logging was endangering the survival of the threatened wedge tail eagle and Swifts parrot and was therefore contrary to national environmental laws.

The longtime environmental campaigner said yesterday he was not refusing to pay the court-ordered $239,368 to Forestry Tasmania.

But he said he did not personally have the funds available to pay the legal demand, and could not raise them in the next three weeks.

The letter from Forestry Tasmania’s lawyers threatens it will seek to declare Dr Brown bankrupt if he cannot pay the required sum.

Any senator declared bankrupt or insolvent – or who is forced to enter into a payment schedule with creditors – is immediately disqualified from holding a seat in Federal Parliament.

Dr Brown said he had no doubt the Tasmanian Government and other “minions of the logging industry” were seeking to force him from parliament because of his long term quest to end all logging of Australia’s native forests.

“I’m not complaining (about the legal costs); these are typical pressure tactics being used by the logging industry,” Senator Brown said in Hobart.

“But I will not back off either from defending Tasmania’s magnificent forests – not now, not ever.”

I suppose I understand the solvency requirement — a bankrupt MP is perhaps more likely to engage in corruption than a wealthy one.  But immediate disqualification seems both excessive and subject to misuse, as Brown’s situation indicates.  If any of our Australian readers know why the requirement has never been eliminated, I hope they will chime in.

Obama’s Historic “Children of Abraham” Speech

by Roger Alford

President Obama’s speech in Cairo was nothing short of remarkable. The issue of interfaith dialogue is dear to my heart, and his speech deserves to be studied and discussed far and wide. I cannot think of a more important message about the relationship between the United States and the Muslim world in American history.

If you have an hour, I strongly recommend watching the video. If you only have fifteen minutes, read the transcript. It is an historic speech, one that deserves a name for easy reference. I would call it the “Children of Abraham” speech, based on this soaring rhetoric:

Too many tears have been shed. Too much blood has been shed. All of us have a responsibility to work for the day when the mothers of Israelis and Palestinians can see their children grow up without fear; when the Holy Land of the three great faiths is the place of peace that God intended it to be; when Jerusalem is a secure and lasting home for Jews and Christians and Muslims, and a place for all of the children of Abraham to mingle peacefully together as in the story of Isra — (applause) — as in the story of Isra, when Moses, Jesus, and Mohammed, peace be upon them, joined in prayer. (Applause.)

I have been doing research lately on Woodrow Wilson’s remarkable speeches of 1917 and 1918. When Wilson finished those speeches (Peace Without Victory, Fourteen Points, Four Principles, etc.) everyone immediately knew they were historic and openly said so. His populist appeal generated enthusiasm for a war-weary world to look to a better day that moved beyond the old system of imperialism, militant nationalism, and the balance of power. I cannot help but see the strong parallels with Obama. He has the genuine ability to speak directly to the people, and appeal to a better future, creating momentum for change that cannot be ignored by the stale leadership of the Middle East.

Here is my outline of the seven key issues he discussed, together with the applause lines (averaging one per minute):

Ed Whelan Outs an Anonymous Law Professor/Blogger (Updated Again)

by Kevin Jon Heller

I loathe anonymous blogging and anonymous commenting.  I think that, in the absence of a compelling reason to remain anonymous, people who take provocative positions and vehemently criticize others should have the courage to do so openly, under their own name.  That’s why I respect someone like David Bernstein, no matter how much I disagree with him.

That said, I understand that some people do, in fact, have compelling personal or professional reasons to blog anonymously.  I question whether someone in that situation should blog at all; I think it would be better for them to wait until they can do so openly.  Yet that is their choice, not mine; I believe that every blogger has the right to remain anonymous just as strongly as I believe that they should go public.  I have never “outed” anyone, blogger or commenter, and I never would.

Ed Whelan, unfortunately, seems to believe that it is appropriate to out bloggers who wish to remain anonymous.  Whelan has just outed “Publius,” a leading progressive blogger at Obsidian Wings, because Publius had the temerity to criticize one of his blog posts.  Here is what Publius, who is a new and untenured law professor at South Texas College of Law, has to say about the situation — and about his decision to blog anonymously…

Targeted Killing in US Counterterrorism Strategy and Law

by Kenneth Anderson

In various posts on OJ about Predator drones, targeted killing, and such topics, I’ve made reference to a book chapter I’ve been drafting for Benjamin Wittes’s forthcoming edited volume of policy essays, Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).  I’m pleased to say that my chapter, Targeted Killing in US Counterterrorism Strategy and Law, has been posted up at the Brookings site, as a working paper along with the other working papers that come out in the book.  Shameless self promotion; apologies.  I’ve also put my piece up at SSRN, here; it is not a law review article or scholarship as such, but a policy argument to a particular normative end and blunt advice to the Obama administration and the Congress on what it needs to do to preserve the legal rationale for targeted killing as a tool and weapon.  One of the points made in my chapter is that the US, and the Obama administration, seem to be on a collision course with the international soft-law community on the question of targeted killing and the Predator campaigns …

Amnesty for Undocumented Immigrants: Moral Imperative?

by Peter Spiro

There’s an important roundtable in the May/June issue of Boston Review on the subject.  (Who else finds Boston Review to be more interesting than the New York Review of Books these days?)  It includes a lead-off piece making the case by University of Toronto political theorist Joseph Carens, with responses from Alex Aleinikoff, Linda Bosniak, Gerry Neuman, Peter Schuck, and Rogers Smith, among others.  Carens concludes that “states should establish an individual right for migrants to transform their status from irregular to legal after a fixed period of time, such as five to seven years.”  In other words, a sort of rolling amnesty.  The basic justification is that the law must account for the moral importance of social membership, which will inevitably attach after some period of presence.

I’m sympathetic; the longer the period of presence, the tougher it is to justify the sometimes extreme dislocation of removal.  (Carens plays heavily on stories like this one.)  Beyond the moral question, this may be the leading edge in framing immigration policy as a matter of human rights concern, which marks a radical shift away from sovereign discretion in the area.

In the US context, that should help move some pro-immigrant policies through the legislative side.  The lowest hanging fruit: the DREAM Act, which would regularize the status of many undocumented alien high school graduates (meanwhile, who’s working public relations over at DHS?).  The next rung are cases involving family unity.  So-called mixed status families have been getting a lot of play lately for the good reason that there are a lot of them (four in ten U.S.-born Latino children have at least one undocumented alien parent).  If immigrant advocates can’t win a broad amnesty, they might accept the regularization of illegal aliens who have family ties to citizens or LPRs, especially by marriage (this could be accomplished with a simple date change in section 245(i) of the Immigration Act).  But Congress is unlikely to conceive a individual right against deportation, especially where an alien has engaged in criminal behavior.

Might the courts?  In the long tradition of immigration exceptionalism, the courts have been extremely hands off when it comes to the regulation of immigration.  But there are signs of retreat from the plenary power doctrine.  The major NGOs have started a drumbeat, and they have international practice for ammunition.  It’s not impossible to imagine the courts interceding in, say, the case of a near-lifelong resident facing deportation for a relatively minor criminal offense, under the aegis of substantive due process.

So What Is the Legacy of Tiananmen, Twenty Years On?

by Kenneth Anderson

I am not actually going to try and answer that question, but leave it to you.  However, I did not want to let the occasion go by without marking it.  

The day it happened in 1989, I was actually at a human rights retreat organized by Henry Steiner and Philip Alston, a remarkable private meeting of human rights organizations, from north and south, on the island of Crete.  Remarkable in that it was one of the first times that anyone had tried to sit down a bunch of human rights NGOs and discuss a set of important and simultaneously practical and abstract themes.  Not everyone attended – Human Rights Watch rather snootily said that it had better things to do than attend academic conferences.  The horror!  But it was the loser; the exchanges, particularly between north and south, were frank and pointed and one of the first such occasions within the human rights NGO movement.  

I was there as the young conference administrator person, dealing with things like rooms and planes and meals and all that, seconded, I am pleased to say, as a pro bono gift of Sullivan & Cromwell.  Tiananmen took place while all of us were there; it was discussed at length, but the conference declined to make a  joint statement, if I recall correctly.  I think that was the right decision – no one at the meeting was authorized to speak on behalf of their organizations, to start with.  Somewhat more disturbing was that not everyone at the conference appeared to think that the Chinese protestors had a defensible cause.  The fault lines of the human rights movement and its internal contradictions run deep, from its ideological development in the 1980s down to today.  But I recall watching the protests on the small TV that was in the monastery on a remote stretch of beach on the island, hoping that it would turn out like the Soviet Union, but not very sure.

Comparing Obama and Bush’s Treaty Priorities

by Duncan Hollis

Last month, the Obama Administration informed the Senate of its treaty priorities via a letter from the State Department (you can access it here). The letter lists 17 treaties for which the Administration seeks Senate advice and consent “at this time,” including (as predicted here and here) CTBT, CEDAW, and UNCLOS. It also lists 12 treaties “on which the Administration does not seek Senate action at this time,” including the International Covenant on Economic, Social and Cultural Rights, the American Convention on Human Rights, and the Convention on Biological Diversity (the no action list also includes the 1969 Vienna Convention on the Law of Treaties, but that’s got to be a mistake, right? Seriously, despite the 40 year delay, I continue to hope that someone in the State Department will finally come to their senses and push for this treaty again; if only so those of us treaty lawyers would stop having to claim the whole treaty has become customary international law and instead let us focus on it as a set of treaty obligations).

The use of a treaty priority list has become a standard mechanism for updating and revising executive views on treaties submitted to the Senate for advice and consent.  A treaty priority list is usually communicated to each new Congress (although that doesn’t always happen).  I recall working on a few of them during my time in the State Department’s Treaty Office from 1999-2003.  So, how does the Obama Administration’s treaty priority list stack up against its predecessors? Compare it with the Bush Administration’s last treaty priority list from 2007 (available here), and a few things jump out.

UN Special Rapporteur to ‘Investigate’ US Drone Strikes

by Kenneth Anderson

I’m on the fly, but quickly wanted to post this update to my earlier posts on targeted killings and Predator strikes.  The UN Special Rapporteur on extrajudicial execution, Philip Alston, has called for an investigation into US Predator drone attacks.  Here is a quick news story on it.  I think the press account somewhat overstates matters – I would characterize it as more of a request for the US to provide information and assert its legal justification for its Predator strategy, with respect to both collateral damage and identification of targets.  Although diplomatic language is often ambiguous in just this way, I don’t think it is precisely an investigation.  NYU’s Philip Alston is of course well known to many of us – an old friend of mine and someone I admire and respect.  (Also, I like Philip a lot – he’s a great guy, warm and with a wickedly subtle sense of humor.)  I can safely say that we don’t have remotely the same views on this, but he is a very careful academic and diplomat. There are probably some better accounts of this, but I didn’t have time to dig them out.

Still, further to my earlier posts on targeted killing and standoff drone technology, I think this is another data point is the increasing divergence between the Obama administration and the international soft-law community on the legal status of targeted killings – as well as some much more basic questions of international law and its interpretation.  The US diplomat cited in the news account, Lawrence Richter re-asserted the US position that the special rapporteur on extrajudicial execution (under the mandate of the Human Rights Council, which raises a whole other set of legitimacy issues) does not have the mandate to report on issues related to the conduct of hostilities that rise to the level of armed conflict under the laws of war.  

The implied, underlying US position actually consists of at least two things:

  • one, that the human rights law to which the special rapporteur’s mandate extends, the ICCPR, does not extend extraterritorially at least as far as the US is concerned and, 
  • two, that these human rights law concepts do not apply and are set aside by the lex specialis of the laws of war, with its own rules about targeting and collateral damage.  

In relying on those views, however, the Obama administration was not asserting a new view, or re-asserting a Bush administration GWOT view, but a view held by the US going all the way back.

Fellowship Opportunity at USCIRF

by Peggy McGuinness

Former guest blogger, Elizabeth Cassidy, passes along the following fellowship announcement from the U.S. Commission on International Religious Freedom (USCIRF). This is a one-year funded fellowship, perfect for those who research religious freedom under international law and who might, in the future, be looking to join the academy:

USCIRF Announces 2009 Crapa Fellowship Program

WASHINGTON, D.C. – The U.S. Commission on International Religious Freedom (USCIRF) is proud to announce the establishment of the Joseph R. Crapa Fellowship Program in memory of Joe Crapa, who served as Executive Director of USCIRF from 2002-2007. Applications are due by June 15, 2009.

Michael Stokes Paulsen on the Constitution and International Law

by Kenneth Anderson

Via Larry Solum and the indispensable Legal Theory Blog, I draw your attention to this sure-to-be controversial and provocative new article by Michael Stokes Paulsen, The Constitutional Power to Interpret International Law (Yale Law Journal 2009).  Here is the SSRN abstract:

What is the force of international law as a matter of U.S. law: ‘Who determines that force’ This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determinate commands in conflict with the Constitution’s commands or assignments of power, international law is, precisely to that extent, unconstitutional. Further, the force of treaties (and executive agreements) to which the U.S. is a party is always subject to the constitutional powers of Congress and the President to supersede or override them as a matter of U.S. domestic law. 

It follows from the Constitution’s allocation of power exclusively to U.S. constitutional actors that the power to interpret, apply, enforce – or disregard – international law, for the United States, is a U.S. constitutional power not properly subject to external direction and control. The power ‘to say what the law is,’ including the power to determine the content and force of international law for the United States, is a power distributed and shared among the three branches of the U.S. government. It is not a power of international bodies or tribunals. This understanding of the relationship of international law to the U.S. Constitution’s allocation of powers in matters of war and foreign affairs has important implications for many contemporary issues the United States’s actions with respect to compliance with international treaties and other international law norms in the areas of criminal law enforcement, the conduct of war, war prisoner detention and interrogation practices, and the imposition of military punishment on unprivileged enemy combatants.

I tend to agree with this kind of view, and then carry it still farther to put this into the hands of the political branches and not the courts.  But it is yet another signal – along with things like ATS jurisprudence – of just how far American law is, as a complicated community of interpretation, from what much of the rest of the community of international law would understand its rules to be.  Regardless of one’s normative views of this, Larry’s judgment is right – a “must read on an important topic.”

(Update:  A commenter mentioned that he had trouble getting the download – as with all SSRN stuff, follow the link to the abstract page, go to the top where it says “Download” and go to the download page.  Click on an SSRN server in your general vicinity and click it.  It should download as a pdf.)

Update 2:  To give you an idea of the article more than just the abstract, here is the conclusion:

I conclude, briefly, with the questions with which I began: what is the force of international law, for the United States, and who determines that force and interprets and applies international law for the United States? For all the complexities and intricacies of the details, the summary answer is remarkably straightforward: under the U.S. Constitution, international law is only “law” for the United States when the U.S. Constitution makes it so or empowers U.S. constitutional officials to invoke it in support of their powers. Wherever the Constitution does make it so, such law is always controlled by the (sometimes conflicting) interpretations of the law by U.S. actors and never by the interpretations of international or foreign tribunals. And such international-law-as-U.S.-law is always subordinate to the superior constitutional powers of U.S. constitutional actors; it may be superseded, as a matter of U.S. law, almost at will. 

The force of international law, as a body of law, upon the United States is thus largely an illusion. On matters of war, peace, human rights, and torture—some of the most valued matters on which international law speaks—its voice may be silenced by contrary U.S. law or shouted down by the exercise of U.S. constitutional powers that international law has no binding domestic-law power to constraipolicy and politics.

Guest-Post about the JURISTRAS Project

by Kevin Jon Heller

This post was written by Gabriel Swain, a Research Associate at the University of Kent’s School of Social Policy, Sociology, and Social Research.  I think the project’s reports will be of great interest to our readers.

Since its birth in the 1950s, the European Court of Human Rights (ECHR) has functioned, through implementation of the rights guaranteed by the European Convention on Human Rights (the Convention), as the human rights body of the Council of Europe (CoE). Unique in the fact that individuals can bring complaints against states under international law, the ECHR has provided an avenue for victims of human rights abuse to seek compensation when none is available in domestic courts. In recent years, the European Union has embraced the Convention and has made membership in the EU contingent upon ratification of that document. The Convention allows a large margin of appreciation to states, giving them the freedom to decide how they protect the Convention rights and how they implement judgments finding violations against them. This has meant that people in each CoE member state experience rights protection and abuse in often quite different ways.

The JURISTRAS project began in 2006 with a grant from the EU Sixth Framework Programme. The purpose of the project has been to analyze the various relationships between the ECHR and human rights actors (both governmental and non) in CoE member states. The nine partners of the project represent nine CoE members (Austria, Bulgaria, France, Germany, Greece, Italy, Romania, Turkey and the United Kingdom) who can in turn be seen to represent at least part of the vast diversity of countries in that intergovernmental organization. The project coordinators at the Athens-based Hellenic Foundation for European and Foreign Policy structured the project to focus primarily on discrimination and the rights of minorities and other marginalized groups, and those themes have featured throughout virtually all of the reports produced thus far.

The various research reports, which have been spread over the course of three years, began with state of the art reports and case study reports, which provided the historical background for understanding the current relationships between each respective state and the Court. These reports provided insight into the complex ways that ECHR judgments affect, and are affected by, domestic actors, including governmental institutions, non-governmental human rights organizations, academics, lawyers and judges, the media, etc. Those reports were followed by a collection of comparative analyses, which focus on a variety of issues including gender rights, rights of ethnic minorities, rights of immigrants and asylum seekers, state-church relations, discrimination, and minority rights in general. State-level policy recommendations were then completed by each partner. Additionally, interviews with relevant individuals including government officials, prominent judges and lawyers, NGO executives, and leading academics were carried out to compliment the research and provide additional insight into the attitudes of key human rights players in each state.

Throughout the course of the research, different issues proved to be salient in each state. In some states discrimination against ethnic minorities has been identified as a pressing issue (Kurds in Turkey and Roma in Bulgaria, Romania and Greece). In others, cases involving gender and homosexual rights (United Kingdom) or freedom of expression (Austria) have made up a substantial amount of the case load, while still others experience immigration and asylum issues (France, Germany, United Kingdom), prisoner rights issues (Italy) or issues regarding restitution of property seized by the state (Bulgaria and Romania). As the reports display, the human rights issues across the CoE vary considerably, often as much as language and culture.

The project is now in its final stages and one book discussing the project’s findings is already set to be published, while a second book is awaiting acceptance by a publisher. The state of the art reports, the case studies, the policy recommendations and the comparative analyses are all available on the project’s website. Anyone interested in learning more about the project can also subscribe to receive email updates about project progress (follow link on website listed above).

Sonia Sotomayor’s Affirmative Action Plan for Puerto Rico

by Roger Alford

Judge Sonia Sotomayor’s student note in the 1979 Yale Law Journal is a piece of work. It makes an extravagant case for Puerto Rican statehood based on terms of accession that are more favorable to Puerto Rico than any other state in the Union. Her proposal is a sort of affirmative action plan for what she describes as a “small, economically poor dependency” acquired as a result of the “American experience with colonialism.”

While her legal arguments are complex, her economic and political conclusions are simple: Puerto Rico should become a state and accede to the Union in a manner that grants her ownership rights over the offshore oil, gas and mineral deposits within a two-hundred mile radius of Puerto Rico. It should do so despite the fact that no other state enjoys similar rights and despite over two centuries of federal practice that provide for states to enter the Union “on an equal footing with the original States in all respects whatever.”

Sotomayor argues that “[t]he island’s dearth of land-based resources and its ongoing economic stagnation and poverty, coupled with the possibility of offshore oil and mineral wealth, will create political pressure for Puerto Rico to demand exclusive rights to exploit its surrounding seabed…. The inclusion of such a provision in Puerto Rico’s compact of admission could be politically necessary and practically essential.”

She recognizes that such terms for statehood would meet with opposition because it would mean Puerto Rico would not enter the Union on an equal footing with other states. She also recognizes that Supreme Court precedent poses a serious problem, particularly restrictions that prevent accession terms limiting the “paramount power of the United States in favor of a State.” But she interprets this precedent as a statutory rather than a constitutional limitation, and argues that “Congress … can alienate seabed rights in any way it chooses” including in an agreement of accession to the Union. “Therefore,” she argues, “Puerto Rico should seek a specific grant of seabed rights in a compact of admission” that would grant Puerto Rico rights to explore, exploit, conserve and manage the living and non-living natural resources within a two-hundred mile radius.

Finally, to prevent federal environmental regulations from harming the value of these seabed rights, she argues that Puerto Rico should negotiate terms that would require the United States to pay for the right to regulate Puerto Rican waters. Recognizing that environmental regulations are not compensable takings under the Fifth Amendment, she argues that Puerto Rico should negotiate a special formula for compensation that would compensate Puerto Rico as if such environmental regulations were an unlawful taking. “Puerto Rico and the United States could agree that compensation be provided for those losses that courts normally find noncompensable, and could provide a formula for calculating the compensation” based on the fair market value of the loss profits that would result from such environmental regulation.

In short, in proposing preferential treatment for Puerto Rican statehood, Sotomayor manages to provide justifiable grounds to (1) upset environmentalists; (2) upset those sensitive to the equality of states; (3) upset those opposed to affirmative action and preferential treatment; and (4) upset those who do not take kindly to assertions that the United States is a colonial power. I would think almost every United States Senator falls into at least one of those four categories.

New Comment Voting Feature at Opinio Juris

by Roger Alford

Readers will note that today Opinio Juris has incorporated a new comment feature that allows our readers to help regulate the quality of comments. The comment rating feature allows readers to vote “Yea” or “Nay” to any comment that is posted. After a certain number of negative votes are cast to a comment (we are still testing the precise number), the comment will be hidden from view. The comment will not be deleted, only hidden. Anyone who wishes to read the comment can still do so, but it will require an affirmative step of clicking on the comment to maximize the text. This is a middle path between our previous approach of completely unfiltered comments, and the other extreme of censoring inappropriate material.

We should emphasize that a negative comment does not mean that you disagree with the post, but rather that you think the comment violates standards of good conduct. In other words, negative votes are appropriate if the comment is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or otherwise disruptive to civil debate on the blog.

We are a diverse group at Opinio Juris, and we have always welcomed opposing viewpoints. What we do not welcome is uncivil discourse. We hope that this middle path will serve to maintain the remarkably vibrant, healthy and civil discourse that is such a wonderful feature of Opinio Juris discussions. The success of this approach depends on our readers helping us maintain high quality discussion by voting down inappropriate comments.

I should emphasize that we are simply testing this feature. If we find in due course that it does not strike the appropriate balance, we will modify or eliminate the comment voting feature. Please let us know your thoughts either by commenting below or emailing us.

UPDATE: The fourth comment in the comment thread provides an example of what occurs when a sufficient number of readers vote down a comment.

UPDATE: Several comments have asked about the purpose of a Yea vote. The intention of the Yea vote is to allow readers to challenge Nay voters. A comment will only be hidden if there is a sufficient number of Nay votes and if there is a disproportionate number of Nay votes to Yea votes.

Ken also Blogging at Volokh, but not Leaving OJ

by Kenneth Anderson

I wanted to let OJ readers know that I will also be blogging over at Volokh Conspiracy, where Senior Conspirator Eugene Volokh has been kind enough to extend me an invitation. My reason for putting this up here is not so much to announce that, but instead to say that I am not going anywhere from OJ. I will be continuing to blog here, with great pleasure and affection. But I have an academic life that is actually somewhat wider than topics that OJ covers – my day job, as it were, is international business and corporate finance, and I welcome a place to blog on topics that go outside of our topics….

The Continuing Predator Drone Campaign in Pakistan

by Kenneth Anderson

Karen DeYoung has a very interesting, excellent account of the on-going Predator drone campaign in Pakistan, on the front page of the Monday, June 1, 2009 Washington Post, “Al Qaeda Seen as Shaken in Pakistan.”

The story is sourced to US intelligence and military officials, as well as some Pakistani officials, and recounts how the Pakistani army’s campaign to retake the Swat valley from the Taleban puts Al Qaeda under pressure in ways that draws them into the open – or anyway, the open of telecommunications and cyberspace:

“They’re asking themselves, ‘Are we going to contest’ ” Taliban losses, [a US counterterrorism official] said, predicting that al-Qaeda will “have to make a move” and undertake more open communication on cellphones and computers, even if only to gather information on the situation in the region. “Then they become more visible,” he said.

As they become more visible, they run greater risks of being identified as targets for Predator strikes.  The Pakistani army campaign is the equivalent of kicking the anthill, and then Predator strikes become a means to attack specific targets once revealed.

Gitmo Coming to Xbox 360…

by Kevin Jon Heller

This is bizarre on so many different levels:

Moazzam Begg, from Birmingham, was captured by the CIA and thrown in jail at Guantanamo Bay in 2003.

The 41-year-old, who was released in 2005, will now feature as himself in the game for Microsoft’s Xbox 360.

In the game, players control a detainee at the camp, which has been sold by the US Government to a shadowy agency called Freedom Corp.

Before he is subjected to torture and scientific experiments, the character must shoot his way out of the detention camp to bring down his captors.

Moazzam, who has a financial stake in the game, said he has not yet received any money from the producers.

He said: “The software firm approached me with this idea about making a game based on my experience in Guantanamo.

“My first response was hesitation – I was worried that it might trivialise my experience.

“I’m involved to make sure it is as true to life as possible.

[snip]

The Glasgow firm T-Enterprise is making the game called Rendition: Guantanamo.

Zarrar Chishti, the firm’s director, said: “We approached Moazzam because it’s very hard for us to know how to design the layout of the prison and he helped.

“It’s been in production for a year and two months. You start the game with the orange boiler suit, cuffs and earmuffs.

“We have had a lot of hate mail about this, mainly from America, saying things like ‘don’t dare put out a game that shows them killing our soldiers’.

“But no US or British soldiers get killed in it. The only ones being killed are mercenaries.”

I would never begrudge a detainee for making money from his experiences in Gitmo.  But I think it’s unlikely that the game will be “true to life,” given that it will involve mercenaries instead of soldiers and detainees with guns instead of feeding tubes.  That’s a shame, because a number of war-oriented video games, particularly WW II games such as the CALL OF DUTY and BROTHERS IN ARMS series, are extremely historically accurate and quite educational.

Oh, well.  At least the game doesn’t allow you to play a torturer who needs to extract information from a dangerous detainee before the “ticking time-bomb” scenario comes true…