Archive for
July, 2009

Remittances from Immigrants to Developing World Down

by Kenneth Anderson

The Economist reports this week (August 1, 2009, p 64), “Remittances to developing countries: what goes up,” that remittance payments by immigrants, legal and illegal, from developed countries to developing countries has shrunk by a lot.  Remittances held up during 2008 but they are a lagging indicator of economic distress, and in 2009 were shrinking radically:

[T]he chances that remittances will continue to hold up this [2009] year are slim. Some argue that these payments are less affected by downturns than other kinds of financial flows because they are sent primarily to support people’s families. But whatever their motives, migrant workers must earn before they can remit. And this crisis has hit countries where migrants work harder than the countries they come from.

The continued growth in remittances in 2008 may not reflect their resilience to recession so much as the fact that it takes a few months for changes in host economies to have an effect. Remittances to Mexico, which are dominated by money from Mexicans working on American building sites, follow the upticks and downturns in American housing starts with a lag of a few months (see chart). As with Mexico, remittances to Guatemala and El Salvador, most of whose migrants are also in America, were at least 10% lower in the first half of this year than in the same period in 2008. America was the first big economy to enter recession so it may only be a matter of time before flows from other countries also fall.

As the World Bank’s Dilip Ratha wryly notes, as private investment inflows from other sources from the rich world to the poor world dry up, migrants are “thrust into the role of a sort of lender of last resort.”  The 2009 situation is a long ways from where it was a couple of years ago, when even in 2008 the Bank estimates worldwide remittances were some $328 billion.  Not very long ago, there was important discussion of new financial instruments to securitize remittance flows, among other financial techniques.  I think those discussions will come back – remittance flows will themselves come back – and $300 billion is too much money, even in the tiny streams by which much of it flows, to leave to the simplest mechanisms such as Western Union.  But any newfangled financial instruments seeking to package remittance flows will have to assume that the flows can go down as well as up, and there is unlikely to be a Fed standing ready to pour in billions.  That necessarily tempers the thinking – and in ways that, come to that, the world of conventional finance might consider a little bit.

The End of an Era for the House of Lords

by Roger Alford

Since 1876 the House of Lords has served both as the court of last resort and the upper house of Parliament. In response to concerns for separation of powers, the Constitutional Reform Act of 2005 put an end to the judicial role of the House of Lords effective today, July 31, 2009. Marko Milanovic has an interesting post on the final days of the House of Lords sitting as the final court of appeal in England and Wales:

Yesterday the House of Lords delivered its last judgments as the final court of appeal in England and Wales. For many, many, many years (as with all thing English), the House of Lords had a dual function, sitting as both a part of the legislature and the judiciary. From 1 October this year, the new Supreme Court of the United Kingdom will be sitting on Parliament Square, comprised of twelve current Lords of Appeal in the Ordinary.

In parting, one could only say that if some of the other European states (you know who they are) had a judicial system that was even only half as effective as is the English judiciary, and the House of Lords in particular, in the protection of individual rights under the Human Rights Act … then the case load of the Strasbourg Court would not be as unmanageable…. Nor would, for that matter, the Court itself be the bloated, bureaucratic, basically almost entirely Registry-run institution that it is today.

Thanks to all the Book Club participants

by Kal Raustiala

I want to give my sincere thanks to all the participants in the symposium on Does the Constitution Follow the Flag? Many terrific points, questions, and critiques were raised (made?) this week, and I certainly found it a fascinating discussion. My book is an attempt to synthesize and reframe a wide range of issues related to territoriality, and in so doing I necessarily skimmed over, or ignored outright, numerous subsidiary topics of importance. Luckily many of these arose in our discussion this week. Sovereignty, as I note in the book, is the subject of yards of shelf space in any good law library. The literature on territoriality is tiny in comparison, but as this week showed there is so much more to be studied and debated.

Thanks again to the OJ team for inviting me to do this, and to the guest bloggers–David Golove, Tim Zick, and Bill Dodge–for their time and insight.

Don’t Worry, the Biomass-Eating Robot Will be Vegetarian

by Kevin Jon Heller

Ken is going to be so jealous that I blogged about this story first!  Apparently, there is concern that a new robot capable of ingesting and extracting biomass from the environment will become some kind of robot zombie feasting on (yummy?) human flesh.  The companies behind the robot, however, want us to know that nothing could be further from the truth:

In response to rumors circulating the internet on sites such as FoxNews.com, FastCompany.com and CNET News about a “flesh eating” robot project, Cyclone Power Technologies Inc. (Pink Sheets:CYPW) and Robotic Technology Inc. (RTI) would like to set the record straight: This robot is strictly vegetarian.

On July 7, Cyclone announced that it had completed the first stage of development for a beta biomass engine system used to power RTI’s Energetically Autonomous Tactical Robot (EATR™), a Phase II SBIR project sponsored by the Defense Advanced Research Projects Agency (DARPA), Defense Sciences Office. RTI’s EATR is an autonomous robotic platform able to perform long-range, long-endurance missions without the need for manual or conventional re-fueling.

RTI’s patent pending robotic system will be able to find, ingest and extract energy from biomass in the environment. Despite the far-reaching reports that this includes “human bodies,” the public can be assured that the engine Cyclone has developed to power the EATR runs on fuel no scarier than twigs, grass clippings and wood chips – small, plant-based items for which RTI’s robotic technology is designed to forage. Desecration of the dead is a war crime under Article 15 of the Geneva Conventions, and is certainly not something sanctioned by DARPA, Cyclone or RTI.

“We completely understand the public’s concern about futuristic robots feeding on the human population, but that is not our mission,” stated Harry Schoell, Cyclone’s CEO. “We are focused on demonstrating that our engines can create usable, green power from plentiful, renewable plant matter. The commercial applications alone for this earth-friendly energy solution are enormous.” (emphasis in the original)

I’m going out on a limb — a non-human one, of course — and claiming that this is the first time Article 15 has ever been mentioned in a press release about robots.

Bonus IHL info: cannibalism has been prosecuted as a war crime on a number of occasions.  In 1946, for example, a US Military Commission sitting in the Marianas Islands convicted a Lt.General in the Japanese Army of “preventing an honorable burial due to the consumption of parts of the bodies of prisoners of war by the accused during a special meal in the officers’ mess.”  The General was sentenced to death and executed.  No word on whether he was then eaten.

Hat-Tip: Mark Weidermeier at The Faculty Lounge.

South Africa Will Enforce the Warrant for Bashir

by Kevin Jon Heller

Excellent news — and a major blow to the AU’s promise of impunity for Bashir, given the symbolic and practical importance of South Africa for the continent generally:

SOUTH Africa will arrest Sudan’s President Omar al-Bashir if he visits the country, despite an African Union decision to ignore a war crimes warrant against him, the foreign ministry said yesterday.

Civil society and human rights groups across Africa called yesterday for African states to commit themselves to enforcing the International Criminal Court’s arrest warrant for al-Bashir.

Foreign ministry director-general Ayande Ntsaluba said South Africa does not agree with the issuing of the warrant, but “we have certain international obligations. Not only that, our Parliament passed a law” enforcing those obligations, Ntsaluba said. “I cannot foresee the government acting outside the framework of the law. We would not renege on our international legal obligations.”

Bashir has no plans for visiting South Africa, Ntsaluba said.

Ntstaluba’s statement illustrates how important it is for states to incorporate the Rome Statute into their domestic law, an issue I blogged about (briefly) here.  Kudos to the NGOs who were willing to press the South African government to fulfill its international and domestic legislations.

PS.  It is also worth noting that 135 African civil-society groups have just issued an “appeal to African ICC States Parties to reaffirm their support for the ICC and their commitment to abide by their obligations under the Rome Statute, particularly in relation to the arrest and transfer of the President of Sudan to the ICC.”  The list is below the jump…

Michael Innes’s Brief Comment on Cyberterritoriality

by Kenneth Anderson

My too-brief contribution to the Territoriality symposium is to send you over to Michael Innes’s brief comment on cyberterritoriality.  He comments there on Tim’s remarks, rather than Kal’s book – tangential to Kal’s book, but cyberterritoriality is very important in its own domain.

(Update: Apologies, Mike, for getting the attribution wrong (see Mike’s comment), and I’m correcting it here.)

Michael is founder and director of Complex Terrain Lab, an academic site that studies and comments on the intersection of conflict, space, and place, and so involves several disciplines ranging from political science to law to geography, and more.  In Afghanistan, Mike was a civilian NATO staff officer, deployed to Kabul as a staff liaison to ISAF Headquarters.

Cutting Birthers Off at the Knees: Repeal the ‘Natural Born’ Condition for the Presidency

by Peter Spiro

I’ve got an op-ed in today’s Philadelphia Inquirer on the subject.  Do I really think that out of the birther phenomenon will come a constitutional amendment repealing the “natural born” qualification for presidential eligibility?  Well, er. . ., I’m not sure.  But it is remarkable how no one seems to be focusing on the clearly nativist premise of the birther movement.

It’s also somewhat depressing to isolate the political hydraulics of trying to win repeal of what most non-birthers (which is to say, most rational Americans — here’s a 2001 piece from National Review Online to prove it!) seem to think is an anachronistic limitation on presidential eligibility.  When there’s no one seriously at the threshold of disqualification, it’s easy to secure bipartisan support for a constitutional amendment.  But precisely because there’s no one seriously in play, there will never be adequate political capital on hand to meet the high threshold for approval (two-thirds of each House plus three-quarters of the states).  When there is a serious presidential contender who who would be barred by the condition, on the other hand, the issue becomes partisan and an amendment becomes a nonstarter; one party or the other will have an incentive to block.

The only work-around is to whittle away at the condition through practice.  The 2008 election accomplished something on this score, not through Obama’s candidacacy but rather through McCain’s.  We now know that someone born outside the United States proper qualifies for the presidency, perhaps even someone who did not hold citizenship at birth.  One can imagine other permutations that would chip away at the condition at the margins, the Obama counterfactual being one of them.  But it’s hard to see someone who, say, moved here from Canada after infancy making the grade, short of an exercise in constitutional nullifaction by the People.

Wherein I Discover Why Fox News Has Strange Views on the Middle East

by Kevin Jon Heller

Iran and Syria have a new neighbor!

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The European Parliament

by Kenneth Anderson

I realize it’s very down-market to interrupt the serious intellectual discussion of Kal’s outstanding book with something is superficial as this – and I can’t plead any important and worthy policy issue, as with Deborah’s very interesting post – but I’m afraid I must ask our European readers whether the following reported rumor could possibly be true.  It concerns Prime Minister Berlusconi, a prostitute, and … a seat in the European Parliament – something we lawyers call a quid pro quo.  I redact, this being a family-friendly blog and all, everything below from The Awl.  I make no claim about veracity (although it has now been picked up by the BBC, thanks Martin, also I’ve corrected the name):

Patrizia D’Addario … finally explains exactly why she upset enough to come forth with her story:

He didn’t pay me, but he promised to send me two people to take care of a problem I had with planning permission which was blocking a building project. To me that was equal to earning €2,000 extra. That project was really close to my heart and he understood that, so I was satisfied. But that is not what happened. Instead he offered me a seat in the European Parliament.

Military Commissions Moving Ahead

by Deborah Pearlstein

Cross-posted at Balkinization

I really hate to interrupt this great discussion about Kal’s even greater book, and hope to get into it myself before week’s out.  In the meantime, I thought it worth noting that while most of Congress was focusing on health care, the Senate quietly succeeded late last week in passing its version of the defense authorization bill (S. 1390) containing a package of amendments to the Military Commissions Act of 2006. It doesn’t look like the version of the bill as passed is available yet, but figure it looks a lot like the version introduced by Senator Levin reported out of the Senate Armed Services Committee earlier this month (more on its contents below). As the Senate and House are holding hearings this week to figure out what to make of it all before the bill heads to conference committee, the most interesting tidbit so far has come from Assistant Attorney General David Kris, who testified before the Senate yesterday that after having reviewed more than half of the cases of detainees currently held at Guantanamo Bay, the Administration had yet to identify any detainee who fell into the “fifth category” identified by President Obama: i.e. someone who could not be prosecuted in any forum but who should continue to be held under some ongoing detention authority. Could well be the Gitmo task force decided to review the easier cases first, but an interesting datum for those keeping track nonetheless.

Structuralism and Constitutional Limits on the Extraterritorial Exercise of Power

by Roger Alford

Raustiala’s book is about the scope of constitutional protections applied abroad. I did not find much in the book addressing whether the Constitution imposes limits on the extraterritorial exercise of federal power. Why is that?

We have a robust and well-developed Interstate Commerce Clause jurisprudence, but we have precious little guidance as to the scope or even theory of the Foreign Commerce Clause. Can we say that there are constitutional limitations on the exercise of legislative authority outside of our borders based on the Foreign Commerce Clause? I would think that just as the Interstate Commerce Clause has limitations based on the traditional powers of the several states, that the Foreign Commerce Clause imposes limitations on the power of the federal government to act abroad out of respect for the traditional powers of other nations to regulate conduct within their borders.

The same goes for executive power. If one of the core theories of executive power–as articulated in Curtiss-Wright–is that executive power inheres in fundamental notions of national sovereignty, then wouldn’t that theory also incorporate an understanding of limitations on executive power exercised abroad based on the relationship of our sovereignty and the sovereignty of other nations?

Put simply, why are questions of constitutional structuralism always treated as vertical questions vis-à-vis the several states, or as horizontal questions vis-à-vis the federal branches, but rarely if ever as horizontal questions vis-à-vis other nations? I don’t have a theory as to how this would play out, I’m just surprised that it is never really discussed.

Cyber-Territoriality

by Tim Zick

Although it is mentioned briefly, Kal’s book does not address cyber-territoriality in detail.  I take Kal at his word that there will be no sequel.  But I think the history and framework Kal provides may be useful in assesssing efforts to manage cyber-territoriality.  I should note that I generally agree with Kal that exceptionalist claims that cyberspace has “flattened” the world and undermined territorial sovereignty are overstated (pp. 8-9).  In their book, Who Controls the Internet?, Jack Goldsmith and Tim Wu present a compelling argument that geography and territory remain potent organizational and regulatory markers, even in the digital era. 

It was recently reported that the U.S. is creating a new cybercommand within the Pentagon to protect against cyberattacks and perhaps to plan offensive operations abroad.  Officials have encountered some early complications relating to privacy and defense.  As Duncan Hollis has observed, the initiative raises a host of legal and regulatory issues.  But the territorial concerns are more germane to the subject of Kal’s book.  As reported in the New York Times

The Pentagon is increasingly worried about the diplomatic ramifications of being forced to use the computer networks of many other nations while carrying out digital missions — the computer equivalent of the Vietnam War’s spilling over the Cambodian border in the 1960s. To battle Russian hackers, for example, it might be necessary to act through the virtual cyberterritory of Britain or Germany or any country where the attack was routed.

Officials are concerned that they may need to request and receive permission to access foreign computer networks in “cyberterritories” abroad.  General James E. Cartwright, the vice chairman of the Joint Chiefs of Staff, is quoted as saying:  “How do you understand sovereignty in the cyberdomain? It doesn’t tend to pay a lot of attention to geographic boundaries.”

Putting aside what may be the fundamental territorial misunderstanding in the quote, I wonder what the evolution of territoriality suggests with regard to this national security initiative.  Kal’s book details the various extraterritorial options.  Conquering and controlling “cyberterritories” is obviously out of the question.  But assuming soverign borders are still operative in this context, Kal’s book suggests several other options.  Will or should the U.S. (a) simply assert extra-territorial authority, on the trans-boundary effects rationale; (b) negotiate in advance to establish new international rules regarding cyber-entry and search; or (c) pursue more informal channels of resolving these territorial difficulties?  Does the study of territoriality suggest a likely or perhaps a preferable solution? 

Officials involved in this activity would remain on U.S.soil, and would thus not need the sort of protective bubble SOFAs provide.  But in the event agents might travel to any of the territories searched, I wonder if some comparable protections might be needed.      

In terms of Fourth Amendment and other constitutional rights that might be implicated by the cybercommand’s actions abroad, I assume Verdugo precludes granting any constitutional relief to foreign nationals (at least those with no connection to the U.S.).  Contrary, perhaps, to my prior post, which was critical of the Court’s halting development of the doctrine of constitutional scope, perhaps this example suggests that Justice Kennedy’s functionalism is forward-looking and appropriate.  It seems highly impracticable to provide warrant or other Fourth Amendment protections in this context.

Perhaps, though, the old territorial models and frameworks will need to be revised or supplanted to account for the unique problems associated with “cyber-territories.”

Ought the Constitution Follow the Flag?

by Kal Raustiala

Reading over the last few posts, it seems very clear that there is an array of extremely interesting angles to the question of whether the Constitution ought to follow the flag in all instances. Tim, Peter, David, and Bill all have raised great questions about the normative dimensions of extraterritoriality and intraterritoriality. In my book I generally eschewed this dimension, though in the conclusion I discuss it a tiny bit. (I have also written about the GTMO context in “The Geography of Justice,” Fordham Law Review 2005). But I can’t say I have given this topic nearly enough thought. Nonetheless, this is a good opportunity to ponder some of these questions.

As to the connection between 14th Amendment and the Insular Cases, Christina Burnett has written what I think is a pretty definitive treatment in the current issue of the Columbia Law Review. She sees many parallels, and also takes issue along the way with the conventional understanding of the Insular Cases. Since Christina is probably the world’s leading expert on the Insular Cases, I think her views are worth careful attention.

The second broad issue raised in the posts concerns whether it is perhaps wrong to view the denial of incorporation—that is, the denial of the full Bill of Rights—as a wholly bad thing. Perhaps solicitude for local custom and differing norms requires that we sometimes not extend the Bill of Rights to all American territory. There are cases concerning US possessions in the Pacific that to some degree consider this issue. In King v. Andrus, for example, the district court carefully considered indigenous cultural practices in Samoa in deciding whether it would be impractical to apply the right to a jury trial. (It was not impractical, the court decided).

Putting aside the details of King, at first blush I see some merit to the multiculturalist view. But, I think much turns on how the particular territory was acquired. If a territory is conquered, or acquired from another conqueror (e.g., occupied Berlin, the Philippines) then it seems more appropriate to weigh local norms and practices. The people in question did not consent to be governed. But if a territory willingly joins the union (Texas), less so. It is arguably part of the bargain of membership (this is basically the EU practice, for example). This logic, applied for example to Indian country, would suggest substantial deference to local custom or preference, and indeed that is what we see in, say, the 1st Amendment context. That said, deference to local custom can quickly morph into paternalistic and self-serving denial of justice. It is not obvious how we police this.

Status of Forces Agreements raise different issues. Off the top of my head I don’t find SOFAs to be problematic in the abstract, though in extreme cases (where foreign troops are completely outside any local control whatsoever, as was the case in Iraq) they look like naked exercises of power. At the same time, though, I don’t think acceptance of SOFAs supports a more general norm, as Peter alludes to, of a separate legal system for foreigner-on-foreigner crime. I think if one Nigerian assaults another on the streets of New York it is entirely appropriate to arrest and try him/her via the normal rules of American law.

Why then is the same scenario, with two American soldiers, different? Only because it is a necessary part of the security bargain in places like Japan or Germany, and arguably in the interests of both nations, as well as neighbor nations. This is maybe pure foreign affairs exceptionalism, but I think the reality is absent SOFAs we would see a much smaller American military presence abroad, and that in turn would, in many parts of the world, have seriously detrimental effects on regional security. I don’t see that countervailing factor in ordinary crimes by aliens against aliens. (Also, foreign stationed troops live far more separate lives than do ordinary migrants, so the spillover effects of such a rule are smaller too).

As these sketchy comments suggest, there is a lot more thinking to do here.

Extraterritoriality and the Other Incorporation Debate

by William S. Dodge

Picking up on the thread that Tim began and that Peter and David have advanced, I wonder if we might gain some insight by looking at the other incorporation debate that occurred during the twentieth century—the debate over which provisions of the Bill of Rights should be applied to the states through the Fourteenth Amendment. I claim no particular expertise on that subject, but my recollection is that Justice Black thought the whole package should be applied wholesale, while Justice Harlan would have proceed provision by provision and applied only those that were most fundamental. If one compares Black’s and Harlan’s opinions in Reid, the parallels are obvious.

Justice Kennedy picked up Harlan’s position in Verdugo and essentially repeats it in Boumediene. Under this approach, certain rights like due process may apply everywhere the government acts (though I suppose what process is due might well vary, just as it does domestically), while others that are seen more as particularities of American law (e.g. the warrant requirement) are not.

In the domestic incorporation debate, the Supreme Court did proceed provision by provision (Harlan’s approach), but ended up incorporating almost all of the Bill of Rights (Black’s result). My memory is that only indictment by a grand jury and the right to a civil jury trial have not been applied to the states. I am not suggesting that the result will be or should be the same in the international context. Differences in legal culture may mean that what would be considered fundamental within the United States (a jury in criminal cases) might not be considered fundamental outside it (in Puerto Rico). But the basic question—is the right sufficient fundamental—may be the same.

But by what metric do we judge that question? Do we look to the legal traditions of other nations to find common ground, or is it up to the intuitions of the justices of the Supreme Court? Judging from Boumediene, the answer would seem to be the latter. There is perhaps no right more fundamental in Anglo-American law than habeas corpus (it was one of the few written into the original Constitution), but I believe it is largely unknown outside legal systems descended from England’s.

More on Normative Puzzles

by Bruce Ackerman and David Golove

I’d like to pick up on the thread begun by Tim and Peter. Kal’s discussion of the Insular Cases follows the traditional understanding that places them in a normatively negative light, as important constitutional facilitators of colonialism and as reflecting the era’s racism. Clearly, it was both of those things, though it is worth noting (depressingly) that the anti-imperialism movement was itself, to a considerable extent, infused with (and indeed propelled by) racism. At least since Eisentrager and Reid, however, much of the focus of criticism has been on the Court’s willingness to apply the Bill of Rights only partially (on a kind of natural law theory) to the insular territories. Why should non-white persons be entitled only to a lesser bundle of constitutional rights? Yet, as Peter points out, the main impact, at least as I understand it, of the Court’s ruling about the Bill of Rights was that the jury trial right did not apply in Puerto Rico and the other insular possessions, and that ruling seems at least plausible, and perhaps justified normatively, in view of the different (civil law) traditions that predated the U.S. conquests. So, my question is, did the Court’s failure to find the Bill of Rights applicable in full actually facilitate violations of basic rights in the territories, and would overruling <em>Downes </em>and its progeny in this respect be a significant improvement from a human rights perspective? My intuition is that the Bill of Rights ruling was not the normatively most problematic aspect of <em>Downes</em>. One might point, alternatively, to the (constitutional) economic implications of “non-incorporation” as more crucial, but, here again, it is not clear, at least to me, whether non-incorporation was more a privilege than a burden on the citizens of the territories. A final possibility is that what was really crucial was the understanding that the insular possessions were not on even the slow track to statehood and that their citizens, therefore, had no expectation of exercising political rights in the United States. In this respect, the decisions marked a great divergence from prior understandings during the westward expansion, and it opened the possibility that the United States could hold these territories as colonies in perpetuity. That sounds pretty bad, but even here, one might point out that incorporation might have been worse. Consider the fact that Puerto Rico still has not opted for statehood, and the Philippines presumably prefers the fact that it achieved independence rather than unbreakable membership in the U.S. political system. In any case, my point is that I’m really puzzled by the normative issue. I’m hoping Kal can enlighten us on this point? . . . .

Normative Puzzles of Intra- and Extraterritoriality

by Peter Spiro

I want to pick up on Tim Zick’s post touching on the normative implications of territoriality.  It’s clear that intraterritoriality (a nice tag coined by Kal to describe internal territorial variability in law) facilitated exploitation and imperial abuses.  Guantanamo amounts to a failed intraterritorial strategy.

Those are the obvious cases.  I’d be curious where Kal comes out on the closer ones, historical and contemporary, and what the metrics might be.  Were the consular courts a bad thing, associated as they were with power projection and not affording defendants full constitutional protections?  What would have been the alternative?  Are SOFAs normatively problematic?  Kal notes that the Non-Aligned Movement has condemned SOFAs, and there are obvious pathologies to the arrangements in Iraq.  But with NATO partners and Japan?

I wonder if they might be defended on a self-determination rationale.  If an American commits a crime against another American on foreign soil, why necessarily should the territorial sovereign be concerned, and why shouldn’t the US be allowed to resolve the matter according to its own customs?  A contemporary twist on this is the debate over the application of shari’a law within Muslim communities in Europe; there are shari’a courts now operating in the UK, for example.  I’m not sure where I come out on that question, but the analogy puts the question in another perspective.

(As an aside, one explanation for the shift from Ross to Reid is simple expediency.  In the 1890s, it would have been tough to bring everyone home to trial at the same time that it would have been pretty tough to rouse a jury of peers in Japan.  By the late 1950s, either would have been practical.)

With respect to intraterritoriality there may also be some close questions.  Not applying the jury trial right to Puerto Rico has itself been justified on a self-determination basis, by way of insulating the territory’s civil law traditions.  The Bill of Rights does not apply in the context of tribal governance on the same rationale (and I think with the concurrence of the tribes themselves — that is, they don’t want it to apply.)  When framed in terms of community autonomy, the non-application of US law looks more benign even when it comes at the expense of individual rights.  (There can also be clear advantages to variable legal geographies, as with Puerto Rico’s exemption from federal income tax.)

In short, how can we determine which departures from territoriality are justified and which are not?

Is Bagram the New Guantanamo? And why did the US adopt effects-based extraterritorial jurisdiction when our partners did not?

by Kal Raustiala

 

Roger raises an important issue with regard to the landmark 2008 decision in Boumediene v. Bush . Is that case in effect limited to its facts because of the unique qualities of Guantanamo? Or does the logic extend elsewhere? The obvious focus going forward is Bagram Air Base in Afghanistan. Bagram holds many more detainees than does GTMO and, given the continuing war against al Qaeda and the planned closure of GTMO, is likely to have new inmates arriving in the future.

The issue of Boumediene’s applicability to Bagram recently arose (as my book was going to print) in the case of Maqaleh v. Gates. (Those wanting a longer discussion of the case can see my short essay in the ASIL Insights series, at http://www.asil.org/insights090618.cfm). The bottom line is that at least one federal judge has applied the Boumediene framework to Bagram and found that the constitutional right to habeas does apply to at least some, non-Afghani, detainees held there. Animating the decision was the concern raised by the majority in Boumediene that the executive not be given the ability (and incentive) to evade constitutional strictures simply by choosing the location of detention. This, of course, was Hugo Black’s prescient concern in his dissent in Johnson v. Eisentrager, the 1950 case that was relied upon so heavily by the Bush Administration in the years after 9/11.

Let me also briefly note Bill Dodge’s argument about the rise of effects-based extraterritoriality. The presence of foreign assets in the US is definitely a key factor in the success of this approach, and that presence is in turn a function of the huge American market. So I think Bill is right to highlight this, and probably I should have underscored it even more. However, foreign assets have been present in the US for a long time, so (as Bill is aware) this is not really a primary motivator behind the creation of effects jurisdiction; it is instead a permissive cause. 

Does this factor explain why other nations, like the UK, trailed the US in adopting this approach to extraterritoriality? The answer would require more empirical work, but it was certainly true that there was substantial foreign investment in places like Britain and France. To be sure, the US was a major player in the global economy in the postwar era. Yet within a few years time the devastated economies of Europe were producing again and they recovered their footing fairly quickly. So I have some doubts about whether this factor was really significant.

 

Constitutional Domain and the Court

by Tim Zick

In reading Kal’s description of territoriality’s ebb and flow, I was particularly interested in the evolution in judicial thinking with regard to constitutional scope or domain.  His description of the path from In re Ross, which stated emphatically that the Constitution does not follow the flag, to Reid and Boumediene, which give some extra-territorial force to the Bill of Rights and other constitutional guarantees, is excellent.  The evolution has obviously been gradual, even glacial.  Within this narrative, there are some fascinating examples of courts dramatically pushing constitutional boundaries outward, including the United States Court for Berlin’s (post-Reid but pre-Verdugo) application of the right to jury trial to an alien outside U.S. borders (a story engagingly told on pp. 151-53).  There have also been some relatively recent lower court decisions that expanded the territorial scope of constitutional rights.  But in the Supreme Court, there has been very little expansion of the Constitution’s domain over time.  This is so despite the fact that the evolutionary path cuts across some periods associated with an active and rights-enforcing judiciary, and despite the fact that American power has expanded dramatically in geographic terms. 

Even more remarkable than the lack of expansion has been the lack of constitutional clarity.  Although the scope of extraterritoriality in the statutory context seems now to be well settled, a great deal of confusion and uncertainty remains in the constitutional context.  As Kal correctly states, “[t]he courts of the United States rarely give a big answer when a smaller answer will suffice.”  (243)  Judicial minimalism is certainly a partial explanation.  But I wonder why, in more specific terms, the Court has had such a devil of a time historically with questions of constitutional domain.  Try explaining the Constitution’s extraterritorial scope to a relative, or a student, and you will quickly find yourself hedging and qualifying.  Verdugo offers multiple approaches.  Boumediene actually may leave more questions unanswered than it answers, and may ultimately tell us next to nothing about the Constitution’s domain.  If so, this will essentially leave us with Reid and Verdugo (and the puzzles of the Insular Cases).  Are territorial domain issues simply more difficult and sensitive than other constitutional questions?  Are the stakes simply higher?  Is the Court uncertain of its expertise, or its competence to fashion some workable rule?  Has it been waiting for some political judgment or settlement? 

Whatever becomes of detainees in both ongoing and future wars, the issue of constitutional domain will not go away.  Do you expect that a reader who picks up the book in 10 or even 20 years will learn all there is to know about the subject of constitutional domain?  Or do you think the Court will revisit this issue and attempt some clarification?

Anarchy and Development

by Kenneth Anderson

Randy Barnett at Volokh Conspiracy mentioned today a new paper, “Anarchy and Development: An Application of the Theory of the Second Best,” 2 Law and Development 1, article 4 (2009), by Peter T. Leeson and Claudia R. Wilson.  Professor Barnett says he hasn’t yet read it, but the abstract looks interesting.  It intrigued me enough to download it (it’s a Bepress journal) and read it this afternoon.  It’s fascinating and insightful, and if you do development, development finance, law and development, I recommend it.  Here is the abstract:

Could anarchy be a constrained optimum for weak and failing states? Although a limited government that protects citizens’ property rights and provides public goods may be the first-best governance arrangement for economic development, among the poorest nations such “ideal political governance” is not an option. LDCs face a more sobering choice: “predatory political governance” or no government at all. Many predatory governments do more to damage their citizens’ welfare than to enhance it. In light of this, we show that conditional on failure to satisfy a key institutional condition required for ideal political governance—constrained politics—citizens’ welfare is maximized by departing from the other conditions required for this form of governance: state-supplied law and courts, state-supplied police, and state-supplied public goods. Since departing from these conditions produces anarchy and fulfilling them when government is unconstrained producers predatory political governance, anarchy is a second best.

This is largely counter to the conventional wisdom because the conventional assumption is that anarchy is the most predatory social ordering – the Hobbesian state of nature and all that.  Certainly it has how I have tended to see things, at least with respect to development issues.  This paper winds up suggesting that a better way to understand things is that the worst social (dis)ordering is a “predatory” government that has sufficient resources, including sufficient political control, to be able to inflict huge damage on a population, especially in development matters, such as long term investments in many public and private goods – but it is able to use that control in a predatory way.  A well ordered state would be great, but, the authors suggest, predatory governance is actually worse than anarchy. Hence the appeal of the second best solution.

I do not say I am entirely persuaded, although the argument has strongly appealing parts.  Anarchy in this discussion is a somewhat slippery term, and it has an ability to appeal to different people for different, inconsistent reasons.  I think I’ve seen both predatory government up close, as well as places lacking of any real governance structure in which marauding gangs worked their will.  It has not always been clear to me which is worse – although those situations were often ones of civil war, which raise questions very different from those of development, even if in real life they are often intertwined.  The urgencies of order in the midst of endemic war and armed conflict are different from those of a predatory state diverting and deterring resources needed for long term development and investments, public and private, therein.  But this is an outstanding, provocative paper, and I commend it to readers interested in these areas.

(I would also refer to a largely unnoticed book by Frank Fukuyama, written while everyone else, me included, was focused on the war on terror – he was researching and writing very important things on development and governance.  His book State Building: Governance and World Order in the 21st Century (2004) offers a schema that bears on the remarks in this paper; government, he suggests, should be seen on a grid with “strength” of governmental power on one axis and “extension” or “reach” of government on the other.  The best governments, he says, are those that are (a) limited in their reach, but (b) strong within those limits.  He has raised this as a point against some forms of small government theorists who want weak government.  On the contrary, he says, weak government is disastrous, just as unlimited government is disastrous.  And on that matrix, he observes that a fundamental problem of the Chinese party dictatorship of China is that China’s central government is at once unlimited but weak.  That matrix has important bearing on the institutional problems of developing states.)

The Uniqueness of Gitmo and the Practical Irrelevance of Boumediene

by Roger Alford

Great book Kal. Kudos and adulations. I have a question of clarification. One of the interesting things about Raustiala’s discussion of the modern application of territoriality is the uniqueness of Guantanamo. He writes,

“Guantanamo’s unusual legal status is reflect in [its] history, and is underscored by two factors. One is the lack of any status of forces agreement for American troops at the base…. [T]he hundreds of thousands of U.S. troops stationed in bases around the world are … the subject of dozens of status of forces agreements…. Guantanamo is the only major American overseas base without a SOFA. The second, closely related, factor is the unique lease arrangement with Cuba. The lease was signed by the newly independent Cuba and the United States in 1903 is effectively perpetual: it requires the assent of both parties to terminate it.” (p. 191).

My question is whether the uniqueness of Guantanamo renders Boumediene‘s discussion of territoriality largely irrelevant, or at least confined to a class of one military base. Later in the book, Raustiala writes,

“there was little in Boumediene that truly stopped the executive branch from switching the Constitution on or off at will. The Bush Administration could have held the same detainees in Iraq, or Afghanistan, or a military base elsewhere in the world…. Indeed, the detainees could be moved to such places now…. [I]n its careful attention to practicality, and to function rather than form, [the Court] suggested that there was something quite special, even unique, about Guantanamo. No other American based could be said to be formally within another sovereign state but ‘in every practical sense…not abroad.'” (p. 216).

So my question is whether Boumediene has any practical relevance once Guantanamo is closed down. It seems that the United States does not have “de facto” sovereignty where the United States has entered into SOFAs with the host state, and therefore I wonder whether you think the Constitution follows the flag to protect alien detainees held in overseas military bases besides Gitmo. And if your answer to that question is yes, does it also apply when the United States has even lesser control, such as detention by international, coalition, or foreign forces at our request and encouragement. Is the fundamental difference that Gitmo is essentially “territorial”, while all the other detention arrangements are “extraterritorial”?

I know you hint at an answer in the book, but I would appreciate it if you could clarify what you think the answer would be in these other scenarios.

Preliminary thoughts on the posts

by Kal Raustiala

I’m glad (though by no means surprised) to see so many thoughtful comments about Does the Constitution Follow the Flag? In this post I will respond briefly to a few of the points made in the hopes of clarifying the issues at stake. Let me take them in reverse order.

David Golove makes a very interesting argument about how contempories understood territorial questions in the 18th and 19th centuries. He claims that territory was not actually the key feature, and instead that there were two forms of jurisdiction at play, international and municipal. When the former was operative, the Constitution necessarily had no applicability. At one level I do not challenge David’s position. Indeed, my book often supports exactly this view. In discussing the Supreme Court’s decision regarding the Civil War era occupation of New Orleans, for example, I write that:

The Supreme Court contended that…Southern states were in fact conquered territory and therefore subject to the laws of war and the international law of occupation, not American law. International law displaced constitutional law.

Yet I do not think this is the primary, or in David’s words, “fundamental” approach that courts of the time took. Indeed, to me, reading the caselaw illustrates that there is far more discussion of territoriality than of municipal vs. international jurisdiction. Take the U.S. District Court for China. In U.S. v. Furbush, an early and influential decision, the court stated clearly that Furbush’s claim that the Sixth Amendment applied to his trial in China was mistaken because of a “fundamental fallacy.” What was this fallacy? His assumption that “the Federal Constitution has been extended to China.” If the core issues was one of differing conceptions of jurisdiction, the language of extending—which echoes that of incorporation in the Insular Cases (as well as the entire “does the Constitution follow the flag?” frame of the era), and directly references the Supreme Court’s earlier and very important decision in In Re Ross, would be very odd. The opinion as a whole resonates with a territorial vision—and there are many other opinions like it.

Now, at one level, this may be a matter of nomenclature. Perhaps David is right that these two fundamental jurisdictional conceptions were at play in this era, and were the key to understanding the jurisprudence, but for some reason they were shrouded and manifested in language like “the Constitution can have no operation in another country.” This language is somewhat ambiguous, but perhaps could be read to have a hidden addendum (“because the Federal Government in this case is exercising international, not municipal, jurisdiction.”) But that is not what the courts actually said. Instead, they tended much more to speak in terms of territoriality. In short, I think David identifies something important, but I am not persuaded that territoriality was not the master concept at play.

That said, I completely agree with David that the displacing role of international law was important, and moreover sometimes that displacing role was critical, as the occupation of the postbellum South revealed. I also completely agree that a proper reading of history shows that international law was a crucial part of early American jurisprudence. And I agree that both of these features point toward a central role for international law in filling gaps when American law was deemed to not apply extraterritorially, as in Guantanamo or Bagram.

In his post Tim Zick stresses the racial, and often avowedly racist, element in many seemingly territorial doctrines. He is certainly right to highlight the “dark side of territoriality,” and there is no question that territorial principles were often used to deny rights to those who were weak and different. I don’t think I portray these episodes as benign, but nonetheless I take his comment as a friendly reminder to all of us that this is a central part of American history. The Democratic Party platform I cited in my opening post, for example, stated emphatically that “the Filipinos cannot be citizens without endangering our civilization.” The Filipinos were routinely derided by McKinley and others as ignorant, simple, and superstitious: simply incapable of self-government.

In fact, the same was said a century earlier about Louisiana. The revered Thomas Jefferson thought that the local Creoles were such a childlike people “that our principles of popular government are utterly beyond their comprehension.” (This did not stop him from buying Louisian, obviously). These attitudes were endemic to the time, and seem shocking to our ears, but of course were central to the imperial era. Imperialists in the US and Europe gave many reasons for empire, but a recurrent (if self-serving) theme was the felt need to civilize those deemed savage. Along the way, the savage would almost always be ruled as subjects, not citizens.

Peter Spiro asks if my book has much to say to the future, now that international law has filled so much jurisprudential space. “In the pre-human rights world, the Constitution was the floor, beyond which there was the abyss of sovereign action answerable only to God.  Today, the Constitution can (usually) add a cushion of rights not found in international law, along with a mature system of enforcement, but it’s no longer the only shield against government overreaching. “ I’d be very interested in a side debate between David and Peter on this issue of the role of international law in the 19th century. David sees it as central, and legal black hole thinking as a perversion of the past. Peter seems to see such thinking as instead a throwback to more nakedly lawless era, one we have increasingly escaped.

Finally, Bill Dodge makes two core points in his introductory post. His first, that there are really 3 phenomena at play in the book, is largely right in my view. In the introduction, I distinguish between “policing,” “protecting,” and “projecting” as three ways American can operate extraterritoriality. I probably should have emphasized this trope more throughout the book. That said, at heart I am a lumper rather than a splitter, and I see the same features at play in each, at least at the most abstract level. The problem with my view, as Bill insightfully points out, is that it is necessarily true in a world of diverse states and legal systems. But since that is our world, I thought it important to highlight something that may seem obvious in retrospect but, by my lights, had not really been emphasized enough in prior scholarship: that extraterritoriality was not a violation of sovereignty as much as a necessary feature of sovereignty—something inherent in the Westphalian system.

Bill’s second point builds on his own expertise on statutory extraterritoriality, and I certainly defer to him on the particulars here. He thinks I overstate the motivating role of leveling the playing field for American firms, and slight both the role of consumers and the ways that extraterritorial application sometimes harmed American firms, as in the Foreign Corrupt Practices Act. I agree that leveling was not the only factor. I also agree that the FCPA is one of the things I should have, but did not, discuss. Perhaps if I had I would have emphasized things differently.

That said, I still think my basic claim that leveling was central and even dominant is probably right. Nonetheless, I recognize that there is more work to be done in this area on the motivations behind not only the actions of federal courts but also of federal agencies. My former classmate Tonya Putnam, now teaching political science at Columbia, has a major project on postwar extraterritorial cases and is trying to unlock the keys to when courts choose to apply US law extraterritoriality and when they do not. Others, such as Bill himself, have done the same. My focus in Does the Constitution Follow the Flag? was more on the origins of the practice–why did the US embrace and dramatically extend extraterritorial application when it did?—and its connections to earlier but forgotten practices, such as consular jurisdiction.

Again, these are all excellent comments and I very much appreciate the food for thought. I certainly glossed over many things in my effort to compress so much into one not-very-long book. That said, I’m not planning a second volume, but it seems quite clear to me that there is much more to be debated and dissected here. Were I a law review comment writer or aspiring professor, I’d see opportunity.

(I see now that Bill has another posting, but I will take that up next time).

The Rise of Extraterritorial Regulation

by William S. Dodge

Most of the discussion so far has been about the constitutional parts of Kal’s book, which is appropriate given its title. But the part I found most fascinating has nothing to do with the Constitution. In Chapter 4, Kal tries to explain why the United States began aggressively to apply its regulatory statutes extraterritorially after World War II and not before. He makes a number of important points. First, it was not simply a matter of more transborder effects because of economic interdependence. The global economy was more integrated in 1909 when the Supreme Court decided American Banana than in 1945 when the Second Circuit decided Alcoa. Kal identifies a number of other factors that explain the timing, including the rise of the regulatory state (you need regulations before you can apply them extraterritorially), the decline of formalism in legal thought, and a post-war order in which legal conflict did not lead to military conflict.

I would put more emphasis than Kal does on changes in legal thought, particularly the effect of changes in the conflict of laws, which justified departures from territoriality to judicial minds. Kal downplays the impact of American conflicts law, stating that it “simply reflected prevailing international legal concepts rather than the reverse.” (p. 100). This may be true for the nineteenth and early twentieth centuries, when the Supreme Court had a tendency to adopt and even constitutionalize international concepts of jurisdiction. But conflicts thinking remained an important influence on extraterritoriality from Alcoa to Timberlane, even as American conflicts parted ways with international law. Timberlane certainly does not illustrate the effect of international law on American conflicts—if anything, it illustrates the reverse. A decade ago, I tried to trace the impact of conflicts thinking on extraterritoriality, which those who are interested can find here.

While Kal does a good job of explaining why extraterritorial regulation based on effects did not develop earlier, he is less explicit on why it was initially only the United States that asserted it. American hegemony is not the answer. In the post-war world, the United States would have been no more inclined to go to war with Britain over an issue of extraterritorial regulation than Britain was inclined to go to war with the United States. The answer, I think, lies in a point that Kal makes at several other points in the book (pp. 95, 113-14, 229) but not in this context, the presence of foreign assets in the United States. The ability of any nation to apply its law extraterritorially depends critically on rules of personal jurisdiction and the enforcement of judgments—what I have called the “structural rules of transnational law.” Smaller countries like the U.K. had less ability to enforce antitrust judgments against foreign companies, and so were less likely to regulate them in the first place.

Of course, the United States is no longer the only big country in the regulatory game. For many years the EU has been enforcing its competition law extraterritorially, and China has blocked or conditioned three mergers involving foreign firms in just the first year of its Antimonopoly Law’s operation. The future of extraterritorial regulation is likely to look quite different from the past.

Final Award Rendered in Abyei Arbitration

by Chris Borgen

On July 22nd, the tribunal arbitrating the dispute between the Government of Sudan and the Sudan People’s Liberation Movement/ Army over the Abyei region rendered its final award concerning boundary delimitation (and, effectively, oil resource exploitation rights). (Links to the webcasts of the oral proceedings here.) The Washington Post reports:

Sudan’s fragile peace overcame a major hurdle Wednesday when a legal panel drew a compromise map splitting an oil-rich region between the government-held north and the semiautonomous south controlled by former rebels.

The court ruling on the Abyei region gave the northern government control of significant oil fields and handed the southern administration a large area that contains the home villages of many of those who fought during a 20-year civil war.

The international community urged the north and south to swiftly implement the ruling by the Permanent Court of Arbitration, which was hailed as just by both sides.

“The tribunal gave something to everybody,” said Vanessa Jimenez, a lawyer for the south.

The compromise solution had implications not only for oil resources (which some claim are already largely tapped in Abyei) but also water resources and grazing rights. The Abyei arbitration thus provides a snapshot of what may be increasingly common: complex resource allocation issues embedded in broader conflicts.  Here, at least, an international dispute resolution mechanism (the Permanent Court of Arbitration or “PCA”) has played an important role in stabilizing the situation. The Post quoted Riek Machar Teny, the deputy chairman of the Sudan People’s Liberation Movement, as  saying “I think this is going to consolidate peace in Sudan.”

The Abyei arbitration also points to an institutional strength of the PCA, in that it has optional rules for resolving disputes when only one party is a state, as in this case (available here in .pdf). The International Court of Justice, by contrast, would have jurisdiction in contentious cases only between two or more states (See art. 34(1) of the ICJ Statute).

The Origins of the Non-Extraterritoriality of the Bill of Rights

by Bruce Ackerman and David Golove

Kal deserves a hearty congratulations on the publication of Does the Constitution Follow the Flag. The book is really a tour de force. Kal offers a sweeping treatment of over two centuries of legal thought respecting territoriality in its multiple manifestations; situates his discussion in wider political, economic, and intellectual developments during this same period; brings out the subtle internal linkages between the various legal doctrines he traces; and offers a larger framework for thinking about the issues going forward. Despite its technical subject matter, moreover, the book is highly readable. Nevertheless, because praising a book quickly becomes boring (for everyone other than the author!), I will try to bring out some differences in our assessments of at least part of the historical materials he discusses – in particular, those which concern the question of the extraterritorial application of the Bill of Rights.

One of Kal’s core claims is about the fundamentality of territoriality in the development of U.S. law, including with respect to the application of the Bill of Rights to aliens overseas. The importance and topicality of this question will obviously not be lost on anyone. Kal follows conventional contemporary jurisprudence in thinking that territoriality provides the key to understanding historical ideas about the scope of application of the Bill of Rights. Because under the Westphalian model of sovereignty, accepted from the Founding through the 19th Century, law was strictly territorial, it followed, in Kal’s account, that the Constitution, like the laws of the United States more generally, applied only in the sovereign territory of the United States. . . .

The Dark Side of Territoriality

by Tim Zick

I want to join others in congratulating Kal on the publication of his outstanding book.  I also want to thank the OJ contributors for inviting me to visit their territory.

Issues of spatiality — place, geography, and territory — have been largely under-examined in legal scholarship.  This book is an invaluable synthesis and examination of a critical aspect of legal spatiality.

One of the most intriguing parts of the evolutionary path Kal charts is the consistently instrumental use of territory to further national goals.  I think territorial instrumentalism, in all its various forms, is quite dangerous to constitutional liberty and equality.  In a recent work, I examined how officials have resorted to territory and geography in a variety of  internal (e.g., sex offender exclusion zones) and external (e.g., Guantanamo) contexts as a means of controlling different populations and behaviors.  Historical antecedents of this form of territoriality abound, of course; they include the territoriality of racial segregation and the exclusion and internment of Japanese-Americans.  The Constitution too often permits officials to engage in this sort of territorial manipulation, I argue, because it contains various “spatial gaps” in coverage.

Kal’s book shows how the U.S. has exploited, or in some cases has attempted to exploit, similar gaps in a variety of intra- and extra-territorial contexts.  Guantanamo is merely the most obvious and most recent example.  As presented in the book, however, territorial instrumentalism seems to be an almost benign phenomenon.  It serves what at one time or another were considered perfectly respectable and legitimate national objectives — i.e., empire-building, territorial expansion, national security, protection of citizens abroad.  There is  a much darker side to territoriality, however, that might have warranted greater attention and critical analysis in the book.  I am referring, of course, to the blatant racism and xenophobia that led to the the unequal treatment of residents of U.S. territories, Chinese and other immigrants, American Indians, and others.  As Sarah Cleveland and others have claimed, Guantanamo itself may be rooted in this unsavory territorial history.  Describing the concern as one relating to the “uncivilized” nature of certain populations, or more particularly the civility of their judicial processes, seems to elide a significant aspect of our nation’s territorial history.  In many instances, territoriality has served invidious purposes.

That is not to suggest that racism and xenophobia are ignored in the book.  And it was surely not the point of the book to engage in a critical ananlysis of immigration policy, for example.  But perhaps as important to this story as the liberties and freedoms territoriality has provided to U.S. citizens, both at home and abroad, are the equality and rights that have been denied to the “other.”  And perhaps some part of the evolution of territoriality can be traced to our collective rejection of such invidious distinctions.

Does It Matter Whether the Constitution Follows the Flag?

by Peter Spiro

Thanks to Kal for joining us to discuss his terrific new book.

I’m on board with the premise that international politics goes a long way to explaining the arc of U.S. foreign relations law, including rules relating to territoriality; and Kal is absolutely correct that US law scholars pay too little heed to the global context as an explanation for doctrinal evolutions.  But how does international law enter into the picture?  On that front, Does the Constitution Follow the Flag? may be mostly about the past than about the future.  Over the long run, IL may moot out territorial issues that have challenged the Westphalian system. . . .

Is Extraterritoriality One Phenomenon or Many?

by William S. Dodge

“Does the Constitution Follow the Flag?” is a fascinating book, and one of its great strengths is that it juxtaposes a number of different examples of how law and territory do not align, some of which have been largely forgotten. When most of us think about extraterritoriality, we think of issues like the extraterritorial application of antitrust law, the applicability of the Fourth Amendment to searches in Mexico, or whether detainees at Guantanamo can file habeas petitions. We are less likely to think about Status of Forces Agreements (SOFAs), consular jurisdiction, or the non-application of certain constitutional rights in Indian country.

Kal claims repeatedly in his book (and again in his post) that the primary function of all these kinds of extraterritoriality is the same—to manage legal differences. In the broadest sense, this is necessarily true. If all law and procedure were the same everywhere in the world, there would be no occasion to apply law extraterritoriality. But it seems to me that three fundamentally different phenomena are being discussed: (1) the protection of Americans abroad from foreign laws (e.g. consular jurisdiction and SOFAs); (2) the application of American laws to foreigners (e.g. extraterritorial antitrust); and (3) the limitation of U.S. government actors by the Constitution. To be sure there are relationships among these categories—in particular, (1) and (2) each raise issues (though different issues) under (3). But I am not convinced that each has the same primary function except at the very highest level of generality.

I would also take issue with the way in which the extraterritorial application of regulatory law manages legal differences. Kal claims it levels the playing field by making sure that foreign firms have to abide by the same rules as American ones (pp. 100, 228). That is not the rationale one finds articulated in U.S. cases applying antitrust or securities law extraterritorially, however, which talk much more about protecting consumers and investors than about protecting competitors. I might also point out that the Foreign Corrupt Practices Act—an example of extraterritorial regulation the book does not discuss—tips the playing field against American companies by subjecting them to restraints foreign firms did not face until some level of harmonization was achieved with the OECD Convention. My basic point here is that just as regulatory legislation can have a variety of purposes, so its extraterritorial application can have a variety of purposes. One of these might be to level the playing field for U.S. firms, but it is not the only, or even the dominant, one.

Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law

by Kal Raustiala

A century ago the presidential race between Republican William McKinley and Democrat William Jennings Bryan was consumed by the question of whether “the Constitution follows the flag.” The United States had just acquired several overseas colonies in the wake of the Spanish-American War. The Democratic Party platform of 1900 declared that “We hold that the Constitution follows the flag, and denounce the doctrine that [the federal government] can exercise lawful authority beyond it or in violation of it.” In opposition were those who believed that normal legal rights and rules did not apply fully—or at all—to the new American possessions. For these individuals, sovereign borders did not line up with constitutional borders.

At stake in this debate was the ability of the U.S. to participate in an age of great empires. As proponents of empire knew, if the Constitution indeed followed the flag any American empire was going to remain very small. At stake as well was the self-conception of the nation as a constitutional republic. Was the U.S. like other great powers of the day, all of whom had embraced a vigorous imperialism? Or did the Constitution provide powerful limits that could not be circumvented simply by (re)drawing lines on maps and declaring some areas beyond the reach of the Bill of Rights?

Does the Constitution Follow the Flag? is a book about the way that geography shapes legal rules and understandings—and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of American law. Do some U.S. laws stop at the water’s edge? If not, do they operate differently beyond American territory? As the election of 1900 shows, these debates are not new. But nor are they a musty relic of the imperial past. Today they are central to ongoing battles over the rights of detainees held in Guantanamo and Bagram, as the landmark decision in Boumediene v. Bush made clear. They are also central to the ability of the federal government to regulate foreign cartels, protect investors, and combat air and water pollution. Each of these issues, in short, raises questions of territoriality and extraterritoriality.

Does the Constitution Follow the Flag? has several aims. . . .

Book Discussion: Kal Raustiala’s “Does the Constitution Follow the Flag?”

by Peggy McGuinness

Opinio Juris is pleased to be hosting over the next three days a discussion of Professor Kal Raustiala’s new book, “Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law” (OUP 2009). Professor Raustiala is a professor of law at UCLA and also director of the UCLA Ronald W. Burkle Center for International Relations. He has written broadly in both international law and international relations, and this outstanding new book reflects his deep engagement in both fields:

In this novel history of territoriality in American law and foreign policy, Kal Raustiala traces the evolving concept from post-revolutionary American to late-nineteenth century imperialism, the Cold War, and our own era of globalization. He closes with a powerful explanation of America’s attempt to increase its extraterritorial power in the contemporary world. As American power has grown, its understanding of extraterritorial legal jurisdiction has expanded too. Throughout, Raustiala focuses on how the legal limits of territorial sovereignty have been tweaked to accommodate the expanding American empire.

In addition to the OJ regulars, the discussion will be joined by three commentators: Professors Bill Dodge (UC Hastings), David Golove (NYU) and Tim Zick (William & Mary). We look forward to a lively discussion and hope that our readers will join the conversation in the comments section.

R2P RIP? Let’s Hope Not

by Kenneth Anderson

Responsibility to Protect (R2P) is in trouble in the UN, according to a dismayed account in this week’s Economist (“An idea whose time has come – and gone?” Economist, July 25, 2009, p 58).  I’m dismayed, too.

At the 2005 UN reform summit of the General Assembly, says the Economist

the biggest-ever gathering of world leaders accepted the principle that they have a general “responsibility to protect” human beings from genocide, ethnic cleansing, war crimes and crimes against humanity. In a delicate formula which [Gareth] Evans worked hard to craft, it was agreed that this concept, now known as R2P, referred mainly to the responsibility of states for their own people. Only in certain extreme circumstances, when states could not or would not protect their own citizens, or were actively harming them, might others step in. The concept was carefully modified so as to avoid giving prickly sovereign states the idea that they were about to be invaded at will by moralising outsiders.

It is an idea that, in the developed world at least, has wide support.  In the United States, it cuts across partisan lines and unites foreign policy idealists, liberals and conservatives, left and right.  The Hoover Institution’s Tod Lindberg, for example, has joined forces for many years with such foreign policy liberals as Lee Feinstein and others to craft and advocate  a US foreign policy supportive of the concept.

Precisely because I am extremely supportive of R2P, I have always been concerned about the evolution of R2P as a legal concept at the United Nations because, in diplomatic developments there, it seemed to me to take steps backwards from where state practice had led us by the time of the Kosovo intervention.  The Kosovo intervention, recall, was carried out by NATO without any authorization whatsoever by the Security Council and the full knowledge that had it been consulted, Russia at least (see Chris’s new article) and possibly China would have voted and vetoed it. Hence action deliberately without Security Council authority.

That said, and however one feels about it, it always seemed to me that the text of the final outcome document of the UN reform summit in 2005 was a step backwards toward a requirement of Security Council authorization and quite deliberately away from the Kosovo precedent.  This all raises many questions about how R2P should be conceived – as I suggest at the end of this post, it can be conceived either as an act of UN collective security, in which case the ineffectual intervention in Darfur is the model, or it can be conceived as a discretionary act of what I have described as the “parallel” US security guarantee, in which case the model is the NATO intervention in Kosovo.

In the latter case, however, the Russian international invocation of Kosovo in its Ossetian and Georgian adventures would represent a big problem (again, see Chris’s new article) for the trajectory of R2P as a concept, but for the fact, apparently, that the weakened Russian Federation will have to “bend” to the US will.  I’m not being snarky; a lot rests on whether you agree with Vice-President Biden or not that, as he says, “I think we vastly underestimate the hand that we hold” with respect to Russia …

U.S. to Sign UN Disabled Rights Convention (Can World Socialism Be Far Behind?)

by Peter Spiro

Story here.  The UN Convention on the Rights of Persons with Disabilities entered into force in May 2008.  It has some 60+ parties even though it’s only been open for signature for a little over two years.

Signing, of course, is the easy part.  Question is what kind of push the Obama Administration will put into ratification and with what sort of conditions attached.

Because the CRDP is so new, the Right hasn’t really had a chance to add it to its shopworn list of treaties that threaten to impurify our precious bodily fluids (Law of the Sea and the Children’s Rights Convention, along with the ICC).  Might the Administration be able to slip it by the goalie — thus breaking the impasse on the others — perhaps with something less than the usual, completely defanging set of RUDs?

My guess is that anti-internationalists will have a lot to be upset about in the Convention itself.  Check out article 28, for example:

States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.

But the announcement that Susan Rice will sign the treaty next week doesn’t seem to have generated a lot of chatter among the usual suspects.  Another sign that they are falling off their game?

Asylum for Battered Women and Beyond

by Gregory Gordon

Recently, advocates for asylum seekers fleeing severe and state-sanctioned domestic violence in their home countries appeared to score a significant victory. In the case of a woman who requested asylum based on fears she would be murdered by her common-law husband in Mexico, the Department of Homeland Security filed a brief in April (unsealed recently as reported by the New York Times here) revealing Obama administration support for the proposition that battered women asylum applicants may be eligible for resettlement in the United States.  (As recently as last year, DHS under the Bush administration had argued in the same case that domestic violence victims could not meet the standards of American asylum law.)

So this represents the latest change in position for the executive branch, which has vacillated for over a decade on this issue in grappling with the case of a Guatemalan domestic violence asylee, Rody Alvarado. Ms. Alvarado endured ten years of brutal beatings at the hands of her Guatemalan soldier husband. Among other things, he raped and sodomized her on a regular basis; kicked her genitalia, causing profuse and sustained bleeding; pistol-whipped her; and violently kicked her in the spine when she refused to abort their fetus. Despite repeated requests, the government and the courts refused to protect her. She tried to escape within Guatamala but her husband found her and practically beat her to death. In 1995, to save her life, she fled to the United States. And the following year a San Francisco immigration judge granted her asylum. But the Board of Immigration Appeals reversed the decision in 1999 and ordered Ms. Alvarado’s deportation to Guatemala.

As a result of the Alvarado decision (Matter of R-A-), women fleeing a wide range of gender-based human rights violations were denied asylum. Desperate victims of sexual trafficking, gang rape, and domestic violence could find no safe haven in the United States. In January 2001, at the very end of the Clinton administration, Attorney General Janet Reno overturned the BIA’s ruling and ordered it to adopt a new decision after the issuance of regulations on the subject of gender asylum. Those regulations were never finalized by the Bush administration, which made noises (via AG John Ashcroft) about deporting Ms. Alvarado but never got around to doing it (although in September 2008 AG Michael Mukasey ordered BIA to reconsider the case, removing the requirement that it await the issuance of regulations). And so the case remained in a state of limbo…

Russia’s Population Collapse

by Kenneth Anderson

Rather than comment on the refreshingly tough realism or seriously imprudent bear-baiting of Vice-President Biden’s recent remarks on Russia (“Russia will bend to the US“), or whether there is an important and dangerous gap between short-term and long-term in the collapse of an imperial nuclear power even if the long-run claim is true, etc., let me instead offer a background source on Russian demography.  (You should consult Chris’s new Chicago Journal of International Law article for discussion of Russian foreign policy and the so-called ‘near abroad’ – Biden’s remarks raised this by implication, of course – and I’d certainly welcome Chris’s discussion of how this all plays out in US-Russian relations.)

Perhaps the most interesting claim Biden made concerned the population implosion, and with respect to it the Vice-President is quite right. Among the demographic experts is AEI’s Nicholas Eberstadt, who has gone far beyond counting the decline in various societies to the crucial questions of social security, health care, labor productivity, etc., that all arise by implication.  He has a new article out on Russian demographics and Russian health care, social services, and investments in children in World Affairs journal (spring 2009), “Drunken Nation: Russia’s Depopulation Bomb.”

Eberstadt’s point – to cut to the lede – is that the Russian population implosion is fundamentally attributable to a rise in the death rate rather than an (independent) decline in the birth rate.  That makes it very unlike, say, Europe.  But let’s back up:

Since 1992, Russia’s human numbers have been progressively dwindling. This slow motion process now taking place in the country carries with it grim and potentially disastrous implications that threaten to recast the contours of life and society in Russia, to diminish the prospects for Russian economic development, and to affect Russia’s potential influence on the world stage in the years ahead ….

A comparison dramatizes what is happening in Russia. Between 1976 and 1991, the last sixteen years of Soviet power, the country recorded 36 million births. In the sixteen post-Communist years of 1992–2007, there were just 22.3 million, a drop in childbearing of nearly 40 percent from one era to the next. On the other side of the life cycle, a total of 24.6 million deaths were recorded between 1976 and 1991, while in the first sixteen years of the post-Communist period the Russian Federation tallied 34.7 million deaths, a rise of just over 40 percent. The symmetry is striking: in the last sixteen years of the Communist era, births exceeded deaths in Russia by 11.4 million; in the first sixteen years of the post-Soviet era, deaths exceeded births by 12.4 million.

The Russian Federation is by no means the only country to have registered population decline during the past two decades. In fact, 11 of the 19 countries making up Western Europe reported some annual population declines during the Cold War era. On the whole, however, these population dips tended to be brief and slight in magnitude. (Italy’s “depopulation,” for example, was limited to just one year—1986—and entailed a decline of fewer than 4,000 persons.) Moreover, the population declines in these cases were primarily a consequence of migration trends: either emigration abroad in search of opportunity (Ireland, Portugal), or release of foreign “guest workers” during recessions or cyclical downturns in the domestic economy (most of the rest). Only in a few Western European countries (Austria, Denmark, Germany, the United Kingdom) did negative natural increase ever feature as a contributing factor in a year-on-year population decline. In all but Germany, such bouts of negative natural increase proved to be temporary and relatively muffled.

The question, in foreign policy and national security terms, is what this concretely means for Russian society – and was the point of Biden’s invocation of it. Eberstadt notes that there is a debate among experts as to whether the current demographic trends represent a temporary change to be followed by a reversion to the mean, or whether this represents a “quiet revolution” and a permanent shift in the mean. But certain things are reasonably clear …

Another Bernstein Post Attacking Human Rights Watch

by Kevin Jon Heller

David Bernstein is back with yet another attack on Human Rights Watch.  This time, Bernstein is up in arms that, in 2006, HRW retracted a claim that armed Palestinian groups had committed war crimes by using human shields — an action that he believes proves, in light of HRW’s refusal to apologize for its allegedly false criticisms of Israel, that the organization “is implicitly hostile to Israel and its supporters.”  Here is what Bernstein writes (links in the original):

It was therefore enlightening for a reader to point me to a prior controversy involving HRW and the Palestinian-Israeli conflict. HRW criticized Palestinian officials for urging civilians to serve as human shields. Anti-Israel commentators, led by rabidly anti-Israel activist Norman Finkelstein, went ballistic.

So how did HRW react? Did Ken Roth say, “We report on Palestine. Its supporters fight back with lies and deception.” Did Middle East director Sarah Leah Whitson accuse HRW’s critics of racism? Not exactly. HRW instead issued an abject apology. In fact, if you try to find the original press release on its website, you instead find a page that first has the lengthy apology, and only then republishes the original press release.

You can’t make this stuff up!

I have to admit, I was concerned when I first read Bernstein’s post.  Would HRW really apologize for criticizing Palestinian officials “for urging civilians to serve as human shields”?  That would indeed be indefensible.

But then I read HRW’s “abject apology.”  And not surprisingly, Bernstein’s characterization of it turned out to be completely misleading.  HRW’s original press release criticized armed Palestinian groups for encouraging Palestinian civilians to shield the house of a military commander in the Popular Resistance Committee, an act that the press release described as a war crime.  HRW’s later statement in no way retreated from the claim that the use of human shields during armed conflict was criminal…

Can the Executive join the 1976 ASEAN Treaty without Senate Advice and Consent?

by Duncan Hollis

Well, that’s exactly what the Obama Administration did this past Wednesday.  Secretary of State Hillary Clinton signed the 1976 ASEAN Treaty of Amity and Cooperation (TAC) on behalf of the United States with the intention that her signature serve as the requisite act of accession, bringing the treaty immediately into force for the United States.  Now, the treaty does not commit the United States to do much; its provisions are pretty generic promises concerning diplomatic consultations and peaceful settlement of disputes.  Article X does prohibit parties form participating in “any activity which shall constitute a threat to the political and economic stability, sovereignty, or territorial integrity of another High Contracting Party,” but the United States reportedly reserved out of that obligation in the event it conflicts with threats to U.S. national interests.  As such, it seems unlikely U.S. accession will alter U.S. behavior in any real way.  Accession merely provided an opportunity to signal a renewed U.S. commitment to ASEAN and the region.

For U.S. foreign affairs lawyers, however, the interesting fact is that U.S. accession came solely via Secretary Clinton’s signature; the 1976 Treaty was concluded as a sole executive agreement for the United States.  Can the President really join a “treaty” (with a reservation to boot!) solely on the basis of executive authorities?  Last year, when President Bush invoked his own authority as sufficient to conclude a status of forces agreement with Iraq, a number of Senators (led by none other than then-Senator Hillary Clinton) objected.  Shouldn’t we see a similar response here? 

Not so much.  In a July 10, 2009 letter (published in the July 23, 2009 Congressional Record), Senate Republican Leader Mitch McConnell and Senators Kerry and Lugar (the SFRC Majority and Minority Leaders respectively) authored a joint “this is-OK-so-long-as-you-don’t-use-it-as-precedent” letter, effectively green-lighting last week’s U.S. accession.  The letter makes a big deal about the use of the term “treaty” in the title of the 1976 TAC; suggesting such usage normally will trigger Senate review.  I’m not so sure; I’ve never thought titles were that determinative of the domestic procedures used by the United States to join a treaty (in contrast to how titles may suggest whether the United States is concluding a treaty vs. a political commitment).  Thus, I would have preferred that the Senators stayed focused on why the actual commitments in the TAC did not trigger any need for Senate review (that said, I’d be interested if readers know of examples of earlier sole executive agreements bearing the “treaty” label?  I suspect some do exist, notwithstanding the Senators’ suggestion that this was a “first”). 

For those interested, here’s the full text of the Senators’ letter:

Gacaca’s End and Its Legacy

by Gregory Gordon

The Rwandan government announced today that it will stop taking new gacaca cases as of July 31st and that it intends to wind down gacaca operations within five months. Gacaca is a traditional local justice procedure (gacaca roughly means “justice on the grass” in Kinyarwanda) that the government modified to process the staggering number of low-level genocide cases and help reconcile perpetrators with their communities. Starting in 2002, the Rwandans  began operating a system of more than 10,000 gacaca courts. Regardless of what one may think about its merits, the gacaca experience has represented a Herculean task with hundreds of thousands of cases processed in the past few years. In the words of Lars Waldorf, it was mass justice for mass atrocity. But was it successful? I was asked today on the BBC World Service (interview starts at the 18:53 mark) about gacaca‘s legacy and I noted that it was mixed.

Gacaca has certainly helped clear out Rwanda’s shamefully overcrowded prisons and overwhelmed domestic courts. And, in theory, it has conferred the advantages of community-based restorative justice – local participation, perpetrator-victim confrontation and reintegration, community healing, and use of an organically grown, culturally resonant procedure. In so doing, it has nominally eschewed the top-down Western retributive approach that focuses on punishing the individual (what Mark Drumbl calls “Western legal liberalism”).

But I also made reference in the interview to gacaca‘s most visible problems – its endemic corruption (which the Rwandans have attempted to deal with) and alarming due process deficits (that portion seems to be edited out of the interview — but it is important as I suspect gacaca’s imminent demise, coincident with Rwandan criminal justice system reform initiatives, is motivated in part by the government’s efforts to make extradition to Kigali look like a more attractive option to Europeans harboring genocide suspects — not that gacaca is used for such suspects but general justice system appearances can be important). I noted, and academic literature has amply explored, the Frankenstein monster assemblage of a local, non-systematized, oral-tradition civil dispute mechanism (traditional gacaca) with a codified, state-centric criminal justice bureaucracy (what the Rwandan government has been operating). Clearly, traditional gacaca was not meant for hearing cases of genocide.

But somewhere in the process of retrofitting it for mass atrocity, gacaca appears to have lost its core restorative justice defining qualities. In my upcoming article “Complementarity and Alternative Justice” (to be published in the Oregon Law Review), I explore this dilemma in greater depth. I still believe that there is hope for successfully using traditional alternative justice mechanisms to deal with gross human rights violations. For that, a better calibrated hybridization will be necessary. Posterity may not ultimately view gacaca as the ideal blueprint; but it will likely appreciate it as an invaluable testing ground.

“I Swear To Tell the Truth, the Whole Truth, or May the Forest Guardians Destroy Me”

by Roger Alford

My former student, Jeff Cook, who is currently serving as a postgraduate legal fellow with International Justice Mission in Phnom Penh, has a humorous post about litigation in Cambodia. Here is what Cook says is the common practice for witnesses swearing to “tell the truth, the whole truth, and nothing but the truth”:

It didn’t take long for me to realize that Cambodian justice has a unique character to it. For example, witnesses called to testify in court are informed: “Should anyone answer untruthfully about what they know, have seen, have heard, and remember, may all the guardian angels, forest guardians, Yeay Tep and powerful sacred spirits utterly and without mercy destroy them, and bestow upon them a miserable and violent death by means of bullets, electricity, lightning, tiger bites, and snake strikes, and in their future reincarnation separate them from their parents, siblings, children, and grandchildren, impoverish them, and subject them to miseries for 500 reincarnations.” In case that isn’t a sufficient deterrent, witnesses must then swear, “I will answer only the truth, in accordance with what I have personally seen, heard, know, and remember. If I answer falsely on any issue, may all the guardian angels, forest guardians and powerful sacred spirits destroy me, may my material possessions be destroyed, and may I die a miserable and violent death. But, if I answer truthfully, may the sacred spirits assist me in having abundant material possessions and living in peace and happiness along with my family and relatives forever, in all my reincarnations.”

Spanish UJ — From Pinochet to Purgatory?

by Gregory Gordon

For critics of universal jurisdiction, Spain’s UJ statute has become the poster child for accusations of excess. How strange it seems that roughly ten years ago it was so widely celebrated as the provision that brought down General Augusto Pinochet. Spain’s indicting the former Chilean dictator and Britain’s detaining him on the attendant arrest warrant and extradition request is still hailed by many as a watershed moment in international law – a breakthrough perhaps as transformative as the Nuremberg trials themselves. So what happened?

For one thing, the Spanish National Criminal Court (or Audencia Nacional), open to private litigants supported by aggressive examining magistrates (such as Pinochet’s nemesis, Baltasar Garzón ), has seemingly become a breeding ground for politically-charged prosecutions having little or no connection to Spain. Investigations have been undertaken against high-ranking American officials including Dick Cheney and Condoleezza Rice related to the torture of terrorism suspects. Seven Israeli politicians and military officers, including former defense minister Binyamin Ben-Eliezer, are the subject of a probe because of a July 2002 Gaza Strip airstrike that resulted in fourteen civilian deaths. Chinese officials are being investigated for abuses in Tibet and forty Rwandan army officers have been indicted in connection with alleged post-genocide reprisal massacres. Critics cry that Spanish UJ has been hijacked by activists pursuing political agendas and settling scores. The Spanish government seems to concur and has been opposed to these far-flung global justice efforts. In fact, Spain’s public prosecutor’s office has openly challenged the UJ power of the Audencia Nacional. And since the heady days of Pinochet, only one defendant has been tried and sentenced under the Spanish UJ law (Argentine naval captain Adolfo Scilingo, who turned himself in to Garzón in 1997 and was ultimately condemned to 640 years in jail for “Dirty War” offenses).

Pressure on Spain to rein in the Audencia Nacional has been exerted by foreign leaders from across the globe and it appears that Madrid, eager to remain a player on the international stage, is ready to cry uncle. The left-leaning Spanish government (with rare bipartisan support from Spanish conservatives) is sponsoring far-reaching UJ legislation that would restrict the scope of future cases to those in which: (1) the victims are Spanish; (2) the alleged perpetrators are present in Spain, or (3) some other clear link to Spain can be demonstrated. On June 25th, the measure overwhelmingly passed the Congress of Deputies (the lower house of parliament) by a vote of 341-2. Passage in the Senate is considered to be a foregone conclusion. The amendment will not have retroactive effect so the most controversial cases may not go away.

Still, NGOs (such as Human Rights Watch here) and certain commentators (such as IntLawGrrls here) have cried foul. They see the Spanish National Criminal Court as the last refuge for victims who can seek justice in no other venue. I have to confess to mixed feelings. I can think of no crusades with higher stakes than the global fight against impunity and effective UJ has to be a part of that. I wholeheartedly cheered the Pinochet outcome in the House of Lords way back when. But it does seem like a reassessment of the Spanish formula is now in order. UJ should never be exploited as a political leverage mechanism but, as noted above, Spain’s system appears to have been quite vulnerable to that tactic. According to World Politics Review (in an article by Soeren Kern):

Spanish lawmakers are now worried that the media-savvy judges are more interested in scoring political points than in upholding the law. They are also concerned that Spain’s judicial system is being hijacked by activists who are out to pursue a political agenda. Indeed, most of the cases, including those involving Pinochet, Israel and the United States, have been the handiwork of Gonzalo Boyé, a “human rights lawyer” who earned his law degree through correspondence courses while serving a 10-year sentence in a Spanish prison. Boyé was convicted of collaborating with the Basque terrorist group ETA in the kidnapping of Emiliano Revilla, a well-known Spanish businessman. Prior to that, Boyé was a member of the Movimiento de Izquierda Revolucionaria, a Marxist-Leninist revolutionary group based in Chile, where Pinochet was his nemesis.

And then much has changed since Spain first enacted its UJ law in 1985. Aside from the scores of countries that have since passed their own UJ statutes, as well as the advent of the ad hoc and hybrid tribunals, the International Criminal Court has come into existence and is now operational (in fact, many nations have adopted UJ laws to satisfy their Rome Statute obligations). There is less need for Spain to serve as a global court. And the current version of Spanish UJ lacks checks and balances (such as an authorizing prosecutor).

So does it still make sense for the country that gave us Don Quixote to keep judicially tilting at superpower windmills? Some might argue that’s not the point. Garzón and his band of crusading magistrates bring to light human rights violations otherwise easily obscured by world powers flexing their muscles. The purpose of Alien Tort Claims Act actions in the United States, they might note, is typically not to obtain actual money damages; it’s about raising awareness and exposing malefactors. In this context, it’s nice to know that someone is at least investigating Dick Cheney and thumbing a nose at Chinese threats and thuggery.

But the cost may be too great. The lack of safety valves and checks and balances in the Spanish system is problematic. As is the Spanish statute’s disregard for the principle of complementarity – there is no statutory mechanism in place to halt a case when territorial courts have in good faith launched their own investigation or initiated their own prosecution (although there is admittedly a Spanish Constitutional Court ruling to that effect, Spain’s seeming disregard of an Israeli investigation into the Gaza case gives pause). And nothing in the current statute mandates the slightest nexus between the forum state and the case or its parties. Finally, there is no consideration of gravity in the UJ trigger calculus. This will be the subject of an entire article I have started writing, but I submit we need a global Universal Jurisdiction treaty to foster consistency and fairness. Short of that, Spain’s imminent reform is probably a good start.

Sweden Decides to Extradite . . . And Then Changes Its Mind

by Gregory Gordon

A couple of weeks ago, Sweden did something unprecedented for an EU nation — it indicated it would proceed with the extradition of an accused Rwandan génocidaire to Kigali. Sylvere Ahorugeze, a 53-year-old former director of Rwanda’s civil aviation authority, is implicated in the 1994 murder of a group of civilians in the Kigali suburb of Gikondo. He was arrested on an international warrant last year at the Rwandan Embassy in Stockholm, where he was attempting to renew identification papers for his wife (he had previously been detained on similar charges in Denmark, where he had been a resident for several years, but was released and supposedly awarded damages because of an alleged lack of evidence). The Swedish Supreme Court ruled on May 26th that there were no legal obstacles to extraditing the man. On July 9th, the Swedish Justice Ministry announced it agreed. It was undoubtedly influenced by the recent domestic justice reforms initiated by Rwanda in response to concerns expressed by various European governments (the United Kingdom, France, Germany, and Switzerland have all recently refused to extradite Rwandan genocide suspects). Among other things, the Rwandans have abolished the death penalty and initiated a witness protection program.

Ahorugeze promptly filed a petition with the European Court of Human Rights, which has granted provisional measures asking Sweden not to extradite him “until further notice.”  (I have not been able to find a reference to the case on the ECHR website and press reports have not alluded to interim measures but this is clearly what must have happened).  Sweden, for its part, complied with the request.  Professor William Schabas has noted on his blog that the Europeans are holding the Rwandans to an unfair standard. He notes that the former are following the lead of the International Criminal Tribunal for Rwanda, which has refused to authorize the transfer of several suspects that it would rather not try itself because of concerns regarding due process standards and judicial independence. According to Professor Schabas:

They insisted that Rwanda, an impoverished third world country, provide a witness protection programme for defence witnesses that would not exist in most European countries, and dismissed Rwanda’s proposed solution to address the problem of reluctant defence witnesses living abroad, which was to hear them using videoconference, as being unfair. Be that as it may, the unintended consequence of these recent rulings of the International Tribunal, spurred on by certain human rights NGOs, has been to enhance impunity, not reduce it. Several genocide suspects, including four in the United Kingdom, have simply been released.

In the meantime, as noted above, the Rwandans have made improvements to their justice system and initiated legislative reforms. And, in light of these developments, ICTR Chief Prosecutor Hassan Jallow has indicated a willingness to reapply for authorization to transfer cases to Rwanda. So perhaps in the end the Swedes will ultimately have the blessing of the ECHR (but that might take some time) and the extradition will proceed. I suspect, however, that there are lingering concerns about executive meddling in Rwandan judicial affairs. One would hope any such worries will soon be assuaged but, sadly, one should probably not hold one’s breath (and certainly the Kagame government, even if currently focused on appeasing the Europeans, has not been a model democracy). In the meantime, it is certainly unacceptable for Rwandan mass murderers to take advantage of this state of limbo and evade justice.  Justice in Rwanda may never be perfect but it’s probably at the point of being good enough.  After all, the entire world needs a proper “completion strategy” for bringing Rwandan genocide perpetrators to justice.  Let’s hope the bulk of it can be done properly in Rwanda.  And soon.

John Bellinger Gets it Right on Consular Convention Implementing Legislation

by Peggy McGuinness

John Bellinger, who served as the Bush administration Legal Advisor to the State Department (in which capacity he famously guest blogged at Opinio Juris!), has an op-ed in today’s last Saturday’s NY Times calling for legislation to override the Supreme Court’s decision in Medellin v. Texas and to give effect to the ICJ’s 2003 decision in Avena. The legislation would overcome any state procedural bar rules to permit review of the convictions of the 51 Mexican nationals at issue in Avena who were denied their consular notification rights in violation of the Consular Convention.  As Bellinger notes, until such review takes place, the U.S. remains in non-compliance with the ICJ decision and the UN Charter.  Moreover, the Supreme Court indicated in Medellin v. Texas that legislation, not to assertion of executive powers, is the only path to compliance with Avena — short of the individual states independently choosing to comply (an option rendered impossible following Texas’ execution of Jose Medellin last August).

Bellinger rightly emphasizes the reciprocal nature of the Consular Convention and the protections it affords to Americans overseas, and notes that although the Obama administration has embraced the idea of enforcing  international legal obligations it still faces a dilemma on this issue:

President Obama now faces the same challenges as Mr. Bush in 2005: an international obligation to review the cases of those Mexicans remaining on death rows across the country; state governments that are politically unwilling or legally unable to provide this review; and a Congress that often fails to appreciate that compliance with treaty obligations is in our national interest, not an infringement of our sovereignty.

The Obama administration’s best option would be to seek narrowly tailored legislation that would authorize the president to order review of these cases and override, if necessary, any state criminal laws limiting further appeals, in order to comply with the United Nations Charter.

From closing Guantánamo to engaging with the International Criminal Court to seeking Senate approval of the Law of the Sea Convention, President Obama is confronting the recurring tension between our international interests and domestic politics. But reviewing the Mexican cases as the international court demands is not insincere global theater. On the contrary, complying with the Vienna Convention is legally required and smart foreign policy. It protects Americans abroad and confirms this country’s commitment to international law.

A statute aimed more broadly at Consular Convention compliance was proposed during the last congressional term but languished in the shadow of the presidential campaign and a lame-duck administration (see the proposed bill here.)  Whether the statute is more narrowly tailored as Bellinger suggests, or sweeps more broadly to preempt state procedural rules to achieve compliance with the Convention going forward, Bellinger is right that this should be a priority for the Obama State Department and Congress.

Next Up: Plagues and Pestilence

by Kevin Jon Heller

According to a national poll conducted by Time, now that Walter Cronkite is dead, John Stewart is America’s most trusted newscaster.  Stewart, 44%.  Brian Williams, 29%.  Charlie Gibson, 19%.  Katie Couric: 7%.

(I guess I shouldn’t mock.  If those were the choices, I’d have voted for him, too.)

The “Best Read” Law Prof Blogs

by Roger Alford

You probably know which blogs have the most traffic from Paul Caron’s “Law Prof Blog Rankings.” But I bet you have no idea which law blogs are the best read, that is, the ones that have “sticky” readership.

If you take Paul Caron’s Top Law Prof Blog rankings and rank the blogs based on the “average visit length” rather than based on traffic, you get noticeably different results. The “average visit length” cannot be measured over time, but the Navigation Trends toolbar allows you to check daily duration stats, which appear to be fairly stable within a narrow range.

Here’s a snapshot ranking of the “Best Read” Law Prof blogs (with Caron’s rankings in parenthesis):

1. 2:56 Jack Bog’s Blog (9)
2. 2:50 Sentencing Law & Policy Blog (10)
3. 2:42 Althouse (4)
4. 2:39 Opinio Juris (17)
4. 2:39 Election Law Blog (28)
6. 2:26 Mirror of Justice (26)
7. 2:21 Antitrust & Competition (35)
8. 2:19 Sports Law Blog (24)
9. 2:16 The Faculty Lounge (20)
10. 2:07 Right Coast (16)
11. 2:03 Patently-O (7)
12. 2:00 Prawfsblawg (13)
13. 1:57 Religion Clause (23)
14. 1:49 Balkinization (12)
15. 1:44 Legal Profession Blog (30)
16. 1:40 White Collar Crime Prof Blog (18)
16. 1:40 Legal Writing Prof Blog (33)
18. 1:35 Leiter Reports: Philosophy (6)
18. 1:35 Concurring Opinions (8)
20. 1:33 Workplace Prof Blog (14)
21. 1:31 Conglomerate (19)
21. 1:31 Wills, Trusts & Estates Prof (21)
23. 1:23 Leiter’s Law School Reports (11)
24. 1:24 Immigration Prof Blog (22)
24. 1:24 Empirical Legal Studies (32)
26. 1:18 Legal History Blog (27)
27. 1:11 Tax Prof Blog (5)
28. 0:59 Ideoblog (29)
29. 0:51 Discourse.net (15)
30. 0:44 Hugh Hewitt (2)
31. 0:34 CrimProf Blog (25)
32. 0:27 Volokh Conspiracy (3)
33. 0:26 MoneyLaw (34)
34. 0:01 Instapundit (1)

Should Mere Presence in the Forum State Be Enough to Trigger Universal Jurisdiction?

by Gregory Gordon

Related to my post yesterday about the presence requirement for invoking universal jurisdiction (with respect to the UK’s new genocide law amendment), QC Ken Macdonald (visiting professor at the London School of Economics) has proposed in The Times an interesting possible solution to deal with what I would call the “Colin Powell” (or, per Macdonald, “Henry Kissinger”) dilemma:

Of course a law can easily be crafted to protect our national sense of decency, while at the same time avoiding vexatious and foolish litigation at the expense of a batch of ageing Henry Kissingers. Indeed, we already have laws that allow us to arrest visiting torturers and hostage takers. They have been applied sensibly and haven’t led to diplomatic meltdown. Why should we be able to prosecute visiting torturers but not war criminals and génocidaires? The simple device of requiring the Director of Public Prosecutions to consent to the instigation of proceedings would prevent abuses and ensure that only appropriate cases can be brought.

It bears pointing out that a mere presence requirement certainly does not represent the most liberal version of universal jurisdiction. I believe this passage from the Joint Separate Opinion of ICJ Judges Higgins, Kooijmans and Buergenthal in the Democratic Republic of the Congo v. Belgium case provides some helpful context with respect to the UK law:

But a State is not required to legislate up to the full scope of the jurisdiction allowed by international law. The war crimes legislation of Australia and the United Kingdom afford examples of countries making more confined choices for the exercise of jurisdiction. Further, many countries have no national legislation for the exercise of well recognized forms of extraterritorial jurisdiction, sometimes notwithstanding treaty obligations to enable themselves so to act. National legislation may be illuminating as to the issue of universal jurisdiction, but not conclusive as to its legality. Moreover, while none of the national case law to which we have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinio juris on the illegality of such a jurisdiction. In short, national legislation and case law — that is, State practice — is neutral as to exercise of universal jurisdiction.

It should be noted that some municipal jurisdictions, such as Spain, permit initiation of cases even if the defendant is not physically present in the forum state (although that may be changing — more on that in a later post). Certain versions of this type of UJ have not even required a nexus with the territory, perpetrator or victim (Belgium’s old universal jurisdiction statute is a prominent example of that). And those jurisdictions have also permitted private citizens to initiate criminal actions against would-be defendants. I have argued elsewhere (including as part of a presentation I made at a London UJ conference last year), that this is going too far. But I do not consider “mere presence” to be problematic – especially if a public official countenances initiation of the prosecution. Macdonald provides a compelling conclusion:

The consequences of his failing to do so [providing for a mere presence UJ trigger] are frankly unappealing. According to a report in The Times in 1999, the individual suspected of supplying, on an industrial scale, most of the machetes used in the Rwandan slaughters [Félicien Kabuga] stopped over in Britain on holiday. If the law is not changed, this unusual tourist is safe to return at any time. Recent research by the Aegis Trust has also carefully documented the scores of suspected war criminals who are believed to be present in the UK. They include suspects from Iraq and Zimbabwe, warlords from Somalia and Afghanistan, and suspected génocidaires from Rwanda. As you would expect, since they cannot be prosecuted here, these men calmly arrive for a wide variety of reasons. Some come for medical treatment and others to do business but, unsurprisingly, they take care to avoid residency. They’re not stupid and they know that they risk nothing more alarming than deportation — where that is even possible. But all too often it isn’t and we find ourselves caught in a devil’s trap. We cannot prosecute these men because they’re not UK residents, but our courts won’t deport them either in case they face mistreatment on their return. Certainly the human rights of suspects must be respected, but the dilemma becomes very stark in the face of atrocity crime. They end up living among us while their victims wait for justice. If the Government opposes the Carlile amendments, our message to war criminals will be a good deal less stern than Washington’s. And the people who have committed these ghastly crimes will continue to haunt us. But an important part of making the world a safer place for innocent people is to make it a lot less safe for their tormentors. Our law should stop providing comfort to international criminals.

Sotomayor, International Law, Context, and the Confirmation Hearings Charade

by Gregory Gordon

Considering Sonia Sotomayor’s testimony last week from an international law perspective, much seems to have been made about her April speech to the Puerto Rican Chapter of the ACLU. In that speech, she did opine that “ideas have no boundaries,” and that “international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.” She added that to frown on the use of foreign or international law would “be asking American judges to close their minds to good ideas.” Conservative pundits have seized on these bits of text to ascribe to Sotomayor an expansive view of international law in constitutional interpretation. But as pointed out here by MediaMatters.org (in exposing mischaracterizations by CNN’s Lisa Sylvester on Lou Dobbs Tonight), the relevant portions of that speech have been taken out of context. I join MediaMatters.org in finding it instructive to consider what else she said in that speech:

I always find it strange when people ask me, “How do Americans’ courts use foreign and international decisions — law in making their decisions?” And I pause and say, “We don’t use foreign or international law. We consider the ideas that are suggested by international and foreign law.” That’s a very different concept, and it’s a concept that is misunderstood by many. And it’s what creates the controversy that surround — in America, especially — that surrounds the question of whether American judges should listen to foreign or international law. And I always stop and say, “How can you ask a person to close their ears?” Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think, and to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas — to some good ideas. There are some ideas we may disagree with for any number of reasons, but ideas are ideas, and whatever their source — whether they come from foreign law, or international law, or a trial judge in Alabama, or a circuit court in California, or any other place — if the idea has validity, if it persuades you — si te comprense — then you are going to adopt its reasoning. If it doesn’t fit, then you won’t use it, and that’s really the message that I want you to leave with here today. I’m going to try first to understand the way that American law is structured against the use of foreign and international law, because American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us.

While I think it safe to say that Judge Sotomayor would not counsel the American judiciary to stick its collective head in the sand of domestic law, the text just quoted is hardly the stuff of legal revolution or constitutional subversion. I realize that Judge Sotomayor has spoken elsewhere about international law (especially in her forward to the 2007 book “The International Judge”) and that certain passages may seem more charitable in their take on international sources than others. But on the whole, I think Sotomayor had struck a thoughtful balance between fidelity to the Constitution and receptivity to the organic growth of legal thought. Quite simply, one aspect of our becoming a global village is that all legal systems (including the American one) are increasingly connected to all the other legal systems. This is a reality no matter how much Justice Scalia might close his eyes, plug his ears, pinch his nose, and scream that he wishes it were not so. Although Judge Sotomayor may have hedged her language, her testimony last week largely acknowledged this reality and was mostly of a piece with her previous position.

To the extent her hedging smacks of political obfuscation, as some have charged, we might do well to reflect on the charade that Supreme Court confirmation hearings have become. Partisan bickering certainly has something to do with it. But I submit these hearings are premised on a misleading and dangerous conceit: that judges are akin to autonomous robots who mechanistically and abstractly apply inbred, dry legal principles to meticulously pruned fact patterns. To the contrary, good judging is an intensely human and dynamic experience. American Justice Oliver Wendell Holmes spoke of this eloquently last century and Judge Richard Posner has done so in this one.

And, on a macro level, good judging requires growth of the entire judicial collective conscience. Being aware of what is going on in the wider world is certainly an integral part of that. And it is, I dare say, essential for the effective delivery of justice in modern times. It will certainly go a long way, in any event, toward allowing us to reassert our leadership on the world stage. In that regard, I am heartened by Judge Sotomayor’s approving citation to Justice Ginsberg that “unless American courts are more open to discussing the ideas raised by foreign cases and by international cases, [we] are going to lose influence in the world.” Here’s hoping that Judge Sotomayor’s imminent elevation to the highest court in the land will help stem that recent ugly tide.

Three Thoughts on the Preliminary Detention Report

by Kevin Jon Heller

My thanks to Deb for her post on the Preliminary Report.  I won’t rehash what she said; I just wanted to offer a few thoughts on the military commissions and the detention policy.  First, I think it is interesting that the Obama administration seems to be conceding that “material support for terrorism” is not a violation of the laws of war and thus cannot be prosecuted by a military commission.  Here is what David Kris, an Assistant Attorney General, told the Senate Armed Services Committee a couple of weeks ago:

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible.

This is a welcome admission, for reasons I have discussed before.  That said, I wish Kris had provided some explanation of why the Obama adminstration continues to insist that “conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions.”  I think that is a difficult argument to make, for reasons that Steve Vladeck has ably explained in a Northwestern University Law Review colloquy entitled — delightfully — “On Jurisdictional Elephants and Kangaroo Courts.”  Indeed, as Steve notes, the plurality in Hamdan concluded that conspiracy is not a substantive violation of the laws of war (pp. 603-04).

Turning to the Preliminary Report itself, I am less certain than Deb that the Obama adminstration intends to rely on the AUMF for the power to detain individuals who — according to the administration — cannot be prosecuted either in federal court or by a military commission.  I was struck by the following comment in the report…

signing out

by Eugene Kontorovich

It has been a fascinating two weeks blogging here, and I certainly learned a lot. Some outstanding questions I haven’t answered, but unfortunately tomorrow I must turn from these duties to more tedious legal tasks — jury duty. Thank you  the OpinioJurists for having me.

What Is a Swiss Bank without Bank Secrecy? And Does Anyone Tell New Citizens About US Worldwide Taxation Rules?

by Kenneth Anderson

Lite-blogging Ken notes the front page WSJ story today, “Swiss Banks Freeze Out US Clients,” July 21, 2009.  The freeze-out is a response to UBS and its fight with the IRS, which wants information on US taxpayers (not necessarily just citizens).  I have two questions, neither of which I will try to answer:

First, what is the competitive advantage of a Swiss bank these days, if bank secrecy is gone?  If it is no longer possible for people around the world privately to stash cash in Switzerland, sure, there is still an advantage in having a safe haven bank.  Coup de main, coup d’etat, revolution, hyperinflation … But there are lots of safe haven banks around, and mostly they are located in places like the US and the UK and France and other large, stable states.  Bank secrecy has always been what has set Swiss banks apart, yes?  What is the competitive advantage in relation to other safe havens if that is gone? I don’t doubt the probity and skill of Swiss private bankers; I just doubt it is any greater than other private banks.

Second – perhaps tax blogger extraordinaire Paul Caron can address this? Paul,might I solicit a comment or cross-guest-post? – what about the tax obligations that fall upon people who avail themselves of the opportunity to become US persons for tax purposes – US citizens but also, I take it, not just citizens but permanent residents in the US.  What are the US rules regarding world wide income taxation?  The IRS investigation has focused on US citizens apparently holding secret Swiss accounts that should be subject to US tax rules, regardless of it being offshore.  What this made me wonder is whether anyone advises new, or would be, US citizens in advance of what their full tax-paying obligations might be.  As US rates look to rise, and rise, compared even to Europe and other jurisdictions, does US citizenship or US person for tax purposes look so attractive?

First Occupation Birthday

by Eugene Kontorovich

As Ken noted, it was my birthday when I started my blogging stint here, and as I wind down my stint here, I”ll observe another birthday. In a few weeks it will be the first anniversary of the Russo-Georgian war, which saw Russia  conquere Georgian territory and cement its control on those parts of Georgia it already occupied. I trust I need not belabor here how wildly and flagrantly illegal this is. I believe it is the first successful conquest of territory in decades that did not meet with a strong international rebuke.

Indeed, there have been no consequences for Russia whatsoever. Right after the conquest, it was clear that no one would take any concrete measures to help Georgia. However, the brazenness of Russia’s actions suggested that diplomatic efforts would be taken to signal how seriously the world community regarded such violations of international law. Western countries talked a big game about reducing relations with Russia, even kicking it out of G-8. At the time these seemed like mild measures — but none of them materialized. Today the United States is seeking to reset its relations with Russia, and the consequences of its ongoing illegal occupation are nowhere discussed.

Interestingly, there has been no criticism of the movement of Russian civilians into Abkhazia and other activities that might be described as Russian settlements. Indeed, this summer Russian news agencies reported that Moscow is financing the construction of a new community in South Ossestia, with 180 cottages eight apartment buildings. (Sorry for the Russian link.) Indeed, the settlement is even called “The Muscovite.” A violation of the Geneva Convention? It does not take much to issue a condemnation, so one might think these activities are not simply not regarded as illegal. I have certainly heard no suggestion that the illegal settlers that will occupy this new neighborhood will be have to be removed, or be removable by Georgia should it regain the territory.

To add insult to injury, Russia is now taking strongly criticizing Israel for occupation. It is slamming Israel for allowing a United States citizen to turn a house he purchased more than 20 years ago in E. Jerusalem into apartments, which I think is in the broadest definitions of “transfer” a big stretch. Russia is still a member of the Mideast Quartet, and apparently there is American sympathy for Russia’s long-standing desire to play host to the next round of “peacemaking.”

I’m not naive. I have no expectation that nations will take active measures to confront powerful countries like Russia or China when they seize territory. what I find surprising is not the absence of action, but even the absence of significant and other soft measures, media attention and pressure from human rights groups. One could measure how seriously nations take international law by the price they’re willing to expend to defend it in exactly those circumstances where my not be convenient. Indeed, if nations wish to talk about certain stances that they take as being strictly dictated by international law, as opposed to motivated by politics, animus or other factors, it’s important to take those stances even when it would otherwise be awkward.

The characteristic of law is that it is applied across the board. In the international context, application often has to fall short of enforcement, but certainly the steps that have been taken to protest illegal conquest and settlement and other places could be taken yet, if the principles were considered sufficiently clear-cut and/or important.

The UK’s Genocide Law Amendment Proposal

by Gregory Gordon

British Justice Secretary Jack Straw recently proposed amending the United Kingdom’s International Criminal Court Act of 2001 (which permits universal jurisdiction prosecution of atrocity crimes) to allow authorities to file cases for atrocities committed as far back as January 1, 1991. This would close a loophole that has been giving safe haven to génocidaires who enter the UK after committing crimes abroad. According to certain sources, there are at least 18 suspected war criminals living in Britain, from countries including Rwanda, Zimbabwe, Somalia, Sierra Leone, Sri Lanka, and Iraq. In April, a British High Court ordered (reversing a lower court ruling) that four Rwandan genocide suspects — Vincent Bajinya, a British national and doctor who had changed his name to Brown, Celestin Ugirashebuja, Emmanuel Nteziryayo and Charles Munyaneza (collectively implicated in the murder of thousands of innocent civilians) must be set free. The Court did not question the quantity or quality of the evidence but ruled that the UK universal jurisdiction law only applied to crimes committed as of 2001 (the crimes at issue, of course, were committed in 1994). Moreover, the Court held that the suspects should not be extradited because they could not receive a fair trial in Rwanda. The proposed amendment would clear the way for their prosecution in British courts.

While this may seem fitting, it could raise some difficult issues. Most glaringly, the amendment is a blatant example of an ex post facto law. Technically, this is not a problem in the UK, which considers Parliament “sovereign.” Under the doctrine of “parliamentary sovereignty,” a properly passed Act of Parliament, regardless of the topic or its merits, is accorded absolute legal effect by the courts. In practical terms, this absolute power to legislate encompasses the right to enact ex post facto provisions that have the express consequence of overturning any judicial decision or previous act of parliament. And, at least as far as the British courts are concerned, this power is not limited in any way by contrary international laws or conventions.

On the other hand, ex post facto criminal laws are prohibited by Article 7 of the European Convention on Human Rights (ECHR), to which the UK is a signatory. By the same token, pursuant to Article 27 of the Vienna Convention on the Law of Treaties, to which the UK is also a signatory, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty obligation. And certainly, ex post facto criminal laws are frowned upon in the UK. But given that the proposed amendment seeks to lessen impunity for the crime of genocide, the crime of crimes, it may seem less controversial than at first blush.

Moreover, in any event, there may be an exception to the prohibition on retroactive laws. Art. 7, para. 2 of the ECHR (and ICCPR, Art. 15, para. 2, for that matter) allows signatories to adopt retroactive laws concerning an act which “at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” Consistent with this, I believe other European criminal codes (Lithuania’s, for example) have imposed retroactive punishment for genocide and other international crimes and ECHR because international law allows retroactive laws concerning international crimes.

The other potentially sticky issue relates to the persons subject to prosecution under the amendment. The current legislation applies only to British citizens and residents. War criminals merely passing through the UK, no matter how egregious their crimes, would be beyond the reach of the law. It should be noted that, in recent years, notorious war criminals such as Félicien Kabuga (genocide financier and founder of the infamous RTLM radio station – I referred to him in my previous post) and Chucky Taylor (Charles Taylor’s son, who was convicted by a U.S. court last year of torture) have passed through the UK without so much as receiving a traffic citation. Perhaps persons subject to the statute should be expanded to include those who are merely present. That is already true for Britain’s torture statute. But then, people like Colin Powell might have to be concerned about attending a conference in London.

60 Years of Occupation – Guess Where

by Eugene Kontorovich

In 1949, a land that had for hundreds of years been home to Muslim peoples was forcibly seized by outsiders. They implemented a policy of ethnic dislocation and colonization. While some of the Muslims, chafing under the occupation, turned to terrorism,  the recalcitrant state refused to budge even until today.

And the occupied country is Continue Reading…

Delayed Detention Policy and the Big “Ifs”

by Deborah Pearlstein

Recall that President Obama issued a related set of executive orders just after taking office: one ordering the closure of Guantanamo in January 2010, another creating a task force to review all the cases of Guantanamo detainees to determine what should happen to them (prosecution, release, some other option), and two others creating separate additional task forces to figure out what to do about detention policy and interrogation policy more broadly.  The detention and interrogation policy task forces had been due to issue their recommendations today.  Last night, the administration announced it was extending the detention review by 6 months, and the interrogation review by 2 months. Is the delay of itself cause for concern? I tend to think not much.

UPDATE: The task force’s interim report and associated appendix are now up at Scotusblog. Link after jump.

Bernstein, Israel, and White Phosphorous

by Kevin Jon Heller

David Bernstein has another snide post about Human Rights Watch today, this time concerning a presentation Sarah Leah Whitson gave about the Middle East at a panel discussion. I won’t bother debating Bernstein’s characterization of the presentation; you can watch it here.  I’m more interested in the ease with which Bernstein disposes of the extremely complicated international-law issues raised by Israel’s actions — ease that is only possible if one takes for granted, as an article of faith, that Israel can do no wrong.  Here is the relevant passage from the post:

Her presentation of the relevant facts and relevant international law is tendentious in the extreme [Gaza, with not a single Israeli soldier or civilian, is “occupied?” Israel “transferred” its population to the West Bank? Using white phosphorous to illuminate targets violates international law?]. She accuses Israel of apartheid. She consistently refers to the wars in Lebanon and Gaza as “Israel’s wars,” even though, obviously, they were fought against foes that were launching cross-border attacks against Israel’s civilian population and which declare themselves to be at war with Israel. She accuses Israel of war crimes, including “indiscriminate” bombing of South Lebanon, which, given the low civilian casualty in the second Lebanon War–even Hezbollah puts the total in the high hundreds, while Israel says low hundreds, out of a population of hundreds of thousands–from a nation with one of the most powerful air forces in the world, is absurd. If Israel had engaged in indiscriminate bombing, casualties would have been in the tens of thousands. I expect foes of Israel to engage in such hyperbole, but Whitson is supposed to be an “objective” human rights advocate.

It is ironic that Bernstein describes Whitson’s presentation as “tendentious in the extreme,” given the extreme tendentiousness of his own presentation.  One could, of course, have a productive discussion about these issues.  For example, I tend to agree with Marko Milanovic that Israel’s current relationship with Gaza should be characterized as a siege, not as an occupation.  But that is a very close question, one which Bernstein has no interest in debating, because for him it is obvious that anyone who believes Israel is occupying Gaza is simply anti-Israel.

It is also worth noting that Bernstein’s questions are as tendentious as his answers…

Beginning My Fortnight

by Gregory Gordon

I want to thank Opinio Juris for having me over the next couple of weeks as a guest-blogger. I noticed that Eugene Kontorovich’s thought-provoking posts last week dealt primarily with the issue of Israeli settlements in the West Bank. My posts to start will not be that focused. If I had to discern one overarching theme for this week, at least at the outset, it likely would be the issue of how to treat human rights violators and victims found in countries where the violations did not take place. Inevitably, this will implicate the topic of universal jurisdiction. It is perhaps ironic that I will be writing about it when Eugene Kontorovich, who writes widely on the subject, did not touch on it last week But I think it is timely as we are roughly at the 15th anniversary of the end of the Rwandan genocide.

Since the full extent of the Rwandan horror revealed itself to the world a decade and a half ago, what kind of success has the international community had in bringing the perpetrators to justice? The results have been mixed. There have certainly been some high-profile convictions (including Bagosora and the RTLM founders) and the cases of thousands of lower-level participants have been processed through Rwandan domestic forums (including gacaca). But many high-profile perpetrators remain at large (the ICTR still seeks the arrest of at least 13 of them). This includes Félicien Kabuga, chief financier of the massacres and a founding member of RTLM (one of the targets I worked on at ICTR). Kabuga apparently lives in the lap of luxury in Kenya (although a Kenyan court froze his assets in May and the order was recently upheld). Many other perpetrators are currently found in Europe and North America and their presence there raises a whole host of legal issues that I think merit discussion. This is particularly true as the ICTR eyes closing shop at the end of next year.

But these problems are not limited to the Rwandan genocide. I also hope to touch on issues related to human rights violations in the Democratic Republic of Congo, Sudan, and Latin America. And I anticipate my posts will not be confined to criminal topics. Immigration law issues, I expect, will also be handled. And I’m sure other posts will suggest themselves as the fortnight progresses. I might even have some thoughts on the Sotomayor confirmation hearings (although OJ has already covered that quite well). In any event, I’m looking forward to an interesting couple of weeks!

Milanovic on the ICJ’s Method of Treaty Interpretation

by Duncan Hollis

Readers may have noticed we didn’t have much to say about last week’s ICJ judgment in Costa Rica v. Nicaragua, which involved disputed water rights in the San Juan river (the full judgment is here; for those interested in a short version, the ICJ Registry’s summary is here).  Well, Marko Milanovic of EJIL: Talk! (and a former OJ guest blogger) has admirably filled in that gap with a lengthy and detailed post, analyzing the ICJ’s decision.  Marko focuses his analysis on the Court’s method of interpreting the rights Costa Rica has in the San Juan river under the 1858 Treaty of Limits, specifically a perpetual right of navigation con objectos de commercio (under the same treaty Nicaragua has sovereignty over the river itself, with the international border between the two states lying along the Costa Rican coast).  The two sides disputed what this con objectos de commercio phrase meant (i.e., Nicaragua saying it only involved rights “with the articles of commerce,” meaning it only covered trade in goods, while Costa Rica argued it involved rights for “the purposes of commerce” including trade in goods and trade in services).  Marko makes three interesting points about last week’s judgment:

First, and most important, is the Court’s approach to treaty interpretation. In that regard the Court gave short shrift to its long-standing dicta that restrictions on state sovereignty are not to be presumed lightly (paras. 47-48), and it also made several fascinating remarks on evolutionary treaty interpretation, to which I will devote the bulk of this post.

Second, the Court was quite ‘activist’ in basically creating bright line rules out of whole cloth from treaty provisions that were silent on the concrete matter at hand, but which the Court considered to have exhaustively regulated the relations between the parties. For instance, the Court held that Nicaragua may not impose any visa requirements on passengers on Costa Rican ships on the river, though it could have held instead that Nicaragua may not unjustifiably deny visas to such passengers, but that it could do so in some exceptional circumstances. This willingness to set bright line rules probably emanated from the Court’s desire to preclude further disputes between the parties and definitively settle the matter.

Third, there is the Court’s willingness the establish, with very little evidence, the existence of a bilateral customary rule binding the parties. Namely, it found that the riparian communities in Costa Rica, through the Costa Rican state, had a customary right to subsistence fishing from the river. The Court derived such a customary right solely from the absence of protest by Nicaragua to fishing by Costa Ricans, without in any way searching for opinio juris by Nicaragua and Costa Rica that this absence of protest derived not from the lack of practical significance of the very small amount of fishing involved, but from Nicaragua’s sense of legal obligation, its view that the riparian Costa Ricans had a right to fish as they did.

Welcome to Guest Blogger Greg Gordon

by Peggy McGuinness

We extend a warm welcome to Professor Greg Gordon of the University of North Dakota Law School, who will be guest blogging with us over the next two weeks. Professor Gordon specializes in international criminal law, and brings a wealth of actual experience as a war crimes prosecutor at the ICTR and the U.S. Department of Justice to his work on genocide, international criminal due process and questions of post-conflict justice. We look forward to his posts and, as always, to a lively discussion with our readers. Welcome!

The Harvard Law School Version of International Law Curriculum

by Roger Alford

Last week was the deadline to register for upper-level electives at Harvard Law School. There are plenty of exotic foreign and international law school courses to choose from that appear nominally to relate to law. Here is a sample schedule with some notable gems:

Monday evenings start the week off with the critically important course entitled “Evil: The Seminar.” The theological, philosophical, and psychological perspectives of the problem of evil are analyzed in its modern manifestations, with particular reference to the mass atrocities of the twentieth century and the oeuvre of David Lat’s, Above the Law.

Or if that doesn’t strike your fancy, then you could opt for a seminar on Thomas Mann’s “Magic Mountain,” which is described as an exploration of the “beautifully opaque, disturbingly vital” novel with “(a lot of) ideas,” all of them only tangentially related to law. Among them is whether Naphta’s terrorist totalitarianism is an antidote to Settembrini’s enlightened liberalism. Wine, cheese and large dollops of pretension are provided.

On Tuesdays, it’s a course on “Bargaining with the Devil” which examines whether one should negotiate with evil adversaries such as Mahmoud Ahmadinejad, Fidel Castro, Kim Jong-Il, or Ann Coulter if in so doing you sell (or at least soil) your soul.

On Wednesdays, it’s the cutting-edge topic of “Japanese Law Film,” which explores the place that law plays within Japanese society and the development of post-war Japanese cinema. Students are required to write three film reviews, one of which must be on Godzilla vs. Mothra: The Battle for Earth, or another film in the Heisei series. Buttered popcorn and large boxes of Milk Duds will be served.

Or if your tastes run European, you can choose to spend a semester studying Tocqueville’s Democracy in America, with special attention to his treatment of early 19th-century American law and the legal profession. Tocqueville’s infatuation with America will be compared and contrasted with the French’s contemporary attitude of horror and disgust toward all things American.

Thursday evenings its “Self, Serenity, and Vulnerability: East and West” which bills itself as a meaningful study of the meaninglessness of human life. It promises a comparison of some of the ways in which philosophy, religion, and art in the East and West have dealt with the fear that our lives and the world itself may be meaningless. The analysis of comparative meaninglessness will include guest lectures by transactional partners at New York and Hong Kong law firms.

Of course if one is a dullard and wished to take rudimentary international law course like public international law, international commercial arbitration, or international human rights law, one could do so I suppose. But you’ll have to settle for adjunct, clinical, or visiting professors.

The Fortieth Anniversary of the Apollo Moon Landing and the Future of Space Law

by Chris Borgen

As we celbrate the 40th Anniversary of the Apollo 11 moon landing, it brings to mind that state of space programs and of space law.

Space law has long been the preserve of public international law, with the Outer Space Treaty, the Moon Treaty, and the International Space Station (ISS) Agreement. However, the rise of commercial space ventures is providing much added vitality (and legal complexity) to spaceflight.

In this post, I will focus on some of the issues related to “classic” government-led space programs. I will turn to commercial spaceflight at greater length in a later post.

The recent agenda of the UN Committee on the Peaceful Uses of Outer Space (.pdf) gives a good snapshot of the issues of concern to government space agencies. The agenda has items related to the use of nuclear power in space exploration, space debris (remember that Russian-U.S. satellite collision? And now the ISS is dodging space junk),  the delimitation of what is “outer space” (should “air law” apply in a given case or “space law”), the apportionment of geostationary orbits (think of it as prime real estate for communications satellites), and issues of financing and interests in mobile property (probably driven by the burgeoning commercial space industry). As the rise of the railways spurred legal innovation in the 19th century, air travel in the early to mid-20th century, and the Internet in the late 20th/ early 21st centuries, space law is a discipline that may well have significant growth, innovation, complexification, and maturation in the near future.

Here are a few issues arising out of the evolution of national space programs:

With the shuttle-fleet facing mothballing and NASA’s new Constellation program probably not beginning operations before 2015 at the earliest, the U.S. will face a gap of a few years. The likely result will be agreements with Russia in which U.S. astronauts will completely rely on Soyuz launches to access the ISS. For the first time, the U.S. will be completely reliant on outsourcing its manned launches.

Outside of this tight U.S/Russia optic though, the big story is the rise of China and possibly other countries in human spaceflight.  India, for example, has expressed an interest in having its own human-spaceflight capabilities. How will the spreading of crewed spaceflight technology affect the interests of those nations which, until then, had relied on U.S. or Russian launches?

The Earth orbit human spaceflight story is a precursor for the U.S’s return to, and other states striving for, the Moon. Back in the (original) space race, when one U.S. scientist was asked what will Americans find when they get to the moon, he quipped “Russians.” Fears of Russian dominance in space–their being the first to launch an orbiting satellite (Sputnik), first to launch a spacecraft (Luna 1) that left the Earth’s gravitational field, first to launch a person into space (Yuri Gagarin), etc–drove U.S. space policy in the 1950’s and 1960’s. (And the lack of a Soviet threat led to the foundering of the U.S. manned space program in the 1970’s.) At least some in the U.S. are hoping that fears of China landing on the Moon before the U.S. can return will drive new U.S. investment in crewed spaceflight. The U.S. has expressed an interest in moving as quickly as possible to a permanent station on the Moon. The multinational scientific bases in the Antarctic and the ISS agreements provide useful analogies for the issues that may arise in constructing the legal framework for such an undertaking. This may also cause a reassessment of the Moon Treaty and other agreements as to the utilization of the Moon and asteroids (this will be even more pronounced with the rise of commercial ventures that may seek to mine the Moon or near-Earth asteroids).

This will all set the stage for sending humas to Mars, possibly sometimes in the 2040’s. (Here’s what Apollo 11’s Buzz Aldrin recently wrote about going to Mars.) As that will be an engineering feat summing up the lessons of the Moon program, the ISS, and other aspects of human spaceflight, so too will the legal and policy frameworks be the culmination of nearly a century of spaceflight. The practical issues of sending a multinational crew of people, on a multinational spacecraft on a multiyear mission to another planet (which may or may not have alien microbial life) will push space law into places until now only theorized.

In another post I will turn to some of the issues of the commercialization of spaceflight.

Sudan Turns to the Security Council for Help — Against Chad

by Kevin Jon Heller

There’s gall — and then there’s the Sudan:

Sudan said on Monday it had referred Chad to the U.N. Security Council, accusing its neighbour of launching an air raid inside Sudanese territory.

Sudan’s army said two Chadian planes attacked a region inside the west Darfur district on Thursday — the fourth raid Khartoum says N’Djamena has carried out in Sudan in two months.

Chad has so far not responded to the accusation, but has in the past insisted it has the right to strike Chadian rebels it says are based inside Sudan.

Relations between the two countries have become entangled in Sudan’s festering Darfur conflict and each country has accused the other of supporting insurgents inside its borders.

In May, Sudan accused Chad of launching three bombing raids on its territory, while Chad accused Sudan of sending rebel forces over its border.

“We brought (the air attack) to the attention of the Security Council. It is now up to the Security Council to react,” Sudanese foreign ministry spokesman Ali al-Sadig told Reuters on Monday.

I have a proposal: the Sudan complies with the Security Council’s referral of the situation in Darfur to the ICC and turns over Bashir, Haroun, and Kushayb, and the Security Council takes action against Chad.  Everybody wins!

Flanders Revisited: Mapping Possible Microstates in Europe

by Chris Borgen

Last week I wrote a post about secessionism in Flanders and regionalism in Europe, more generally. That post had been inspired by a post by “Chirol”at the blog Coming Anarchy. I now see that Chirol followed-up his original Flanders piece with an essay considering a possible future of microstates in Europe. He wrote:

I’ve put together a map of the future of Europe in 2020. It is purely speculative and in no way a firm prediction, but rather a sketch of the possibilities and list of the most likely cases. It is by no means exhaustive and you’ll notice seemingly obvious states such as Wales, Sicily, Crete and others are not listed. This is in part because I will argue that two local conditions are necessary for a viable movement and successful independence.

First, the state must be well off economically and able to hold it’s own, i.e. it must have more to gain than lose. Hence, states like Baden-Württemberg and Bavaria are the two richest in Germany, essentially subsidizing the rest would have more motivation than the poor underdeveloped east German states which feed off the rest. The second condition is that the region must have a well developed and unique identity which comes in the form of a strong dialect or different language, history of independence or autonomy and other characteristics that go into defining a culture.

In his speculative map of Europe in 2020, Chirol includes not only Flanders, but Baden-Wurtemburg and Bavaria (from what had been Germany), Padania (which would be carved out of Northern Italy), and the Basque Republic and Catalonia as independent states.

Chirol is careful to explain that this is a thought-experiment. There are reasons to be skeptical that regionalism within the EU will turn into widespread secessionism. For example, the very EU rules that empower the regions may actually act as steam valves, reducing the pressure building for full independence. Regionalism within the EU is a pretty good compromise in which the regions get much of what they would have as sovereigns. It may be enough to satisfy many of those who had clamored for independence.  I am not sure if this will work, but it is a factor to consider. 

More significantly, few regions would want to take the step to become independent states if the pre-existing country would veto the new state’s accession into the EU. They can remain autonomous regions within the existing state and reap the EU regulatory benefits described in my previous post and avoid the relatively bad scenario of seceding and then being frozen out of the EU by an irate predecessor state. In that case, they would receive neither EU regulatory benefits for being a subnational region nor the advantages of being an EU member state.

Of course, both of these arguments assume that decisions regarding secession would be made by through cold cost/benefit calculations, and that is a shaky assumption.

Kevin’s Gripe of the Day

by Kevin Jon Heller

Academic books that have long quotes in foreign languages and don’t provide translations of them — even in the footnotes.  I’m reading Eyal Benevisti’s superb The International Law of Occupation, and there is French everywhere.  I can usually get the gist (thanks, Mrs. Armour, for being such a good Latin teacher!), but I’m sure I lose the nuance.  That is very unfortunate, and it makes me far less likely to cite the book in my own.  Accuracy matters, particularly when it comes to doctrine.  So we all — the author, the press, and the reader — lose.

If there are any editors out there reading this, please ask your authors to take pity on the linguistically-challenged among us and translate their quotes…

McGinnis and Rosenkranz on Constitutional Comparativism at Sotomayor Hearing

by Roger Alford

John McGinnis and Nicholas Rosenkranz testified last week on the role of foreign and international law to interpret the Constitution. The full transcript of their testimony is here.

At the end of his testimony, Rosenkranz raises a point that I think is often neglected in the discussion of constitutional comparativism: the deliberate attempt by other countries to impact our own jurisprudence. Here is what Rosenkranz says:

When the Supreme Court declares that the Constitution evolves and it declares further that foreign law may affect its evolution, it is declaring nothing less than the power of foreign governments to change the meaning of the United States Constitution….

France, for example, has declared that one of its priorities is the abolition of capital punishment in the United States, yet surely the American people would rebel at the thought of the French parliament deciding whether to abolish the death penalty, not just in France, but thereby in America.

After all, foreign control over American law was a primary grievance of the Declaration of Independence. It, too, may be found at the National Archives, and its most resonant protest was that King George III had subjected us to a jurisdiction foreign to our Constitution.

This is exactly what is at stake here: foreign government control over the meaning of our Constitution. Any such control, even at the margin, is inconsistent with our basic founding principles of democracy and self-governance.

Rosenkranz’s comments echo what I have said (see here and here) about George Washington’s suspicions of foreign attempts to influence our polity. Here is what Washington said in his Farewell Address:

“…The nation which indulges towards another … a habitual fondness is in some degree a slave… A passionate attachment of one nation for another produces a variety of evils…. [I]it gives to ambitious, corrupted, or deluded citizens … facility to betray or sacrifice the interests of their own country … gilding, with the appearances of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation. As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils… Against the insidious wiles of foreign influence … the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government….”

Constitutional comparativism rarely is considered from the angle of foreign attempts to influence the development of domestic values. They cannot, for example, stop the death penalty through the ballot box, so they try to do so by other means. Lacking any democratic mechanism to influence the political branches, does anyone seriously doubt that foreigners are attempting to rely on constitutional interpretation to undermine domestic preferences?

A Remarkable Poll Concerning Darfur

by Kevin Jon Heller

A recent poll conducted by WorldPublicOpinion.org has found that the public in four Muslim-majority and African countries support the ICC’s arrest warrant for Bashir, despite the fact that the governments in those countries oppose it:

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That’s remarkable — but the results of another question, designed to assess support for intervening in Darfur, by force if necessary, should the much-feared humanitarian crisis come to pass, are even more surprising:

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I don’t support military intervention in Darfur — though certainly not because of Sudan’s “sovereignty.”  Nevertheless, the poll reveals just how out of step some Muslim-majority and African governments are with the sentiments of their citzens.  Ordinary Muslims and Africans, it turns out, are far more concerned about punishing the guilty and protecting the innocent than they are about neo-colonialism.

Black Soldiers on D-Day — and Pat Buchanan’s Racism

by Kevin Jon Heller

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It takes a special kind of stupid to be Pat Buchanan.  Last night, in response to a question from Rachel Maddow about whether his hostility to elevating a Latina to the Supreme Court makes sense given that 98% of Justices (108/110) have been white, Buchanan said: “White men were 100% of the people that wrote the Constitution, 100% of the people that signed the Declaration of Independence, 100% of the people who died at Gettysburg and Vicksburg, probably close to 100% of the people who died at Normandy. This has been a country built basically by white folks.”

Cite-checking Buchanan is a pointless task, because he is not interested in facts.  But it’s worth pointing out that Black soldiers were killed at both Gettysburg and Vicksburg — more than 100 in the latter campaign.

Black soldiers also died on D-Day, although not in significant numbers.  (Three, apparently.)  Their efforts on D-Day, however, cannot be underestimated — although they have been for most of the past six decades:

William Garfield Dabney, a 20-year-old enlistee, landed on the beaches of Normandy 65 years ago Saturday. Tethered to his waist was a bomb-armed helium balloon, meant to bring down a German dive bomber.

George Davidson, then 22, ferried messages between American commanders under the cover of night, dodging enemy fire with nothing but his wits to guide him.

Both men, members of the same all-black unit, survived the bloody D-Day landings that launched the Allied liberation of France. But because they were black, they disappeared into oblivion – a historic wrong that at last is being rectified.

Dabney on Friday will be among 50 U.S. veterans awarded the Legion of Honor, France’s highest decoration, in Paris. The vets will return to Normandy tomorrow for the official D-Day ceremony with President Obama and French President Nicolas Sarkozy.

There is an obvious reason, of course, why more Black soldiers didn’t die on D-Day — because of racism and segregation, they weren’t allowed to participate directly in combat.  According to the Army War College, they simply lacked the intellect and courage necessary to fight.

I would recommend that Buchanan watch the wonderful movie Glory — but something tells me he wouldn’t root for the Union…

Unexpected Side Effect of Financial Crisis: Iceland Joining EU?

by Chris Borgen

The Wall Street Journal has the story:

After six days of grueling debate, Iceland’s parliament voted narrowly Thursday to apply to join the European Union — an institution from which the country long stood proudly apart.

But a binge of overseas expansion by Iceland’s buccaneering banks led to a towering stack of bills that couldn’t be paid when the credit crunch cut off funding last fall, leaving Iceland with few options. Alone, with a currency that no one wanted to buy, Iceland’s banking system went under.

The measure passed 33-28, with two abstentions, and followed vigorous discussion on farms, fish and finance that reflects Icelanders’ lingering misgivings about the regulations that come with EU membership.

The country’s new prime minister, Jóhanna Sigurdardóttir, elected after the financial crisis, made joining the EU — and, eventually, the stable euro currency — a priority. With Thursday’s vote, she wrangled her own center-left party into line and cajoled support from parts of her usually euro-skeptic left-wing coalition partner and a handful of smaller parties.

This would leap-frog other coutntires, such as Albania, Turkey, and Croatia who are seeking EU membership. The WSJ adds:

Iceland is likely to have an easier time with EU accession than other aspirants, such as Albania, which wrestles with poverty and corruption, and Turkey, whose large population of Muslims has caused consternation in France and Germany. Thursday, the EU commissioner in charge of enlargement praised Iceland’s “deep democratic traditions.”

But hurdles remain, among them an expected popular referendum on the matter and substantial concerns over the economic hit to the fishing industry from adopting EU quota and catch rules. Fish and seafood accounted for 37% of Iceland’s exports in 2008.

Even if all goes smoothly, accession is at least 18 months away, and likely more. After joining, Iceland would still need to meet stringent economic and currency-stability criteria — which it is far from reaching — before adopting the euro.

I wonder if Iceland’s accession may spur other European Free Trade Area members, such as Norway, to join the EU. It will also be interesting to watch how the news of Iceland’s probably accession will play in Turkey, in particular. Note that the EU enlargement commissioner made a comment about Iceland’s “deep democratic traditions.” I wonder if that was meant to deflect any complaints from Turkey?

Check out the whole story at the WSJ.

Hat tip: Foreign Policy Passport

Remedies for Settlements: A Return to What Status Quo?

by Eugene Kontorovich

Nothing in the Geneva Conventions suggests the remedy for Art. 49(6) transfers is the deportation of the transferred population. In response to my earlier posts, Kevin, Marko and other commenters argued that since the creation of settlements was illegal, the remedy is their undoing, a return to status quo ante. In a discussion with Marko in my previous post, I argued that even if this is true, Israel is not responsible for all the settlements/ers in the WB, and would not have to do anything about those. Here I’ll address that general principle of reverting to the status quo, and hopefully later talk about various conventions Kevin says specifically authorize large-scale ethnic deportations.

The idea that illegality requires removing “removing the consequences of the breach” is a very general one. So is the idea of reliance interests of innocent third parties (ie Israelis born there). I do not know any sources that apply the former principle in a way that requires the removal of mass populations, and there are certainly many places where it could be applied this way.(Western Sahara, Tibet and other Chinese conquests, N. Cyprus, and more). In particular, the UN sponsored Baker peace plan for Western Sahara contemplates Moraccan settlers, who actually outnumber the inigenous population — precisely the situation 49(6)’s commentary says it designed to address — not just staying in place, but voting on the Western Saharan plebiscite! While the UN has declared Turkish occupation and settlement of Northern Cyprus illegal in similar language to its position on Israel, its own peacep plan for the island allows all the Turkish settlers (and troops) to stay. Indeed, there was not even discussion as far as I know of the obligation to deport that has been asserted in our discussions here. So there appears to be alot of flexbility in this rule.

But lets say the others are right: the remedy is to reverse the illegal situation in all of its particulars, to ‘67. Let us play out the implications. From ’49-67, part of historic Palestine was occupied by Jordan. There was not much international pressure on Jordan to reverse this illegal situation, let alone to return Jews to return to their homes. In any case, Israel in ‘67 reverses this situation through force of arms. So if we “go back” to ’67, we still have an illegal situation. Should Israel restore Jordanian occupation?

Indeed, by the logic of the commenters, when Israel took the WB in ’67, it could have deported all Jordanian nationals who moved to or were born in the WB during Jordanian occupation. Since the occupation was illegal, their presence was illegal. This seems like an absurd suggestion. No one ever proposed this because it is not how we understand the Geneva Conventions, except potentially in the case of Israel’s presence in the West Bank. Time does change things, as Peter notes.

So lets go further back still, to the “prior” situation, before Jordanian occupation – an unfulfilled but unrequited international mandate for the creation of a Jewish state in Palestine, and a strong but nonbinding (i.e, GA resolution) international preference that the area be partitioned into Jewish and Arab states.

Jordanian occupation was imposed on an inherently undetermined international situation. Thus for Israel to “revert” to the situation of ’67 does not mean to revert to a Palestinian state in all of the area from which it expelled Jordan. That was not the status quo. Rather, it would be to revert to, at best, a state of indeterminacy.

The West Bank as an entity was created not through Israeli occupation, but through the illegal act of Jordanian occupation. If occupation cannot create new legal rights, they cannot entitle the Palestinians to the full extent of Jordan’s illegal conquests. This is why the international community has long favored a negotiated solution between Israel and the Palestinians – because while favoring a Palestinians state for self-determination and other reasons is quite reasonable, the borders of that state are not self-evident, and it would quite perverse to identify them as the furthest extent of illegal Arab aggression in ’48-49.

Bernstein, Human Rights Watch, and NGO Monitor (Updated)

by Kevin Jon Heller

David Bernstein is in high-dudgeon mode again about Human Rights Watch’s fundraising in Saudi Arabia.  This time, he is up in arms about a statement Ken Roth made to The Atlantic‘s Jeffrey Goldberg during a recent email exchange.  Goldberg asked Roth if his “staff person attempt[ed] to raise funds in Saudi Arabia by advertising your organization’s opposition to the pro-Israel lobby?”  Roth responded:

That’s certainly part of the story. We report on Israel. Its supporters fight back with lies and deception. It wasn’t a pitch against the Israel lobby per se. Our standard spiel is to describe our work in the region. Telling the Israel story — part of that pitch — is in part telling about the lies and obfuscation that are inevitably thrown our way.

After inserting an editorial “!!!!!!” after “lies and deception,” Bernstein claims that “director Roth has now revealed to Goldberg that he thinks that (apparently all) criticism of HRW’s ‘reporting’ on Israel amounts to ‘lies and deception’ — although anyone who has studied the issue can present numerous examples in which HRW was wrong, and Israel’s supporters correct, including my first link above. The logical conclusion is that HRW is institutionally hostile to Israel.”

Notice Bernstein’s clever rhetorical move: he interprets Roth to be claiming that “apparently all” criticism of HRW amounts to “lies and deception” and then rebuts his own interpretation by pointing out that HRW has been wrong before (a claim that he supports only by linking to his own previous posts about HRW).

I highly recommend that readers take a look at the entire email exchange between Goldberg and Roth and judge for themselves whether Roth said anything particularly scandalous.  Pay particular attention to Roth’s first email, in which he explains why it is so important for HRW to work with progressive forces in repressive countries like Saudi Arabia…

Treaties Task Force Report

by Duncan Hollis

Over the last year, Julian and I both participated in a task force on treaties, jointly convened by the American Bar Association and the American Society of International Law.  Along with the task force’s other members, including former guest bloggers like Ed Swaine and Curt Bradley (see the full list here), we’ve now produced a consensus reportMedellin served as the impetus for the task force’s creation, and our report focused on (1) identifying the range of available interpretations of that case; (2) potential consequences of its decision on the role of treaties in U.S. law; and (3) recommendations for addressing such consequences.

In terms of how to read Medellin, the report focuses on the case’s implications for (a) which treaties will be found to be non self-executing, and (b) what legal implications flow from attaching a non-self executing label to a treaty.

Transfers and Deliveries

by Eugene Kontorovich

The international insistence on banning natural growth in Israeli settlements is ironic because it is this population that is most clearly legal under the Geneva Convention. After all, babies are born, not “transferred.”

The discussion must begin with the text of the Fourth Geneva Convention. We will assume that the Convention applies to the West Bank (the Art. 2 issue), that the League of Nation’s Mandate is a dead letter, etc, so that we can focus on Art. 49(6), which is said to make all settlements illegal. It provides that “the occupying power shall not deport or transfer parts of its own population into the territories it occupies.” The meaning of the term transfer was unclear to the drafters, as the official commentary itself admits. The International Committee for the Red Cross commentary does explain that the intent of the provision was to prevent population movements that “worsened the economic situation of the native population and endangered their separate existence as a race.” Neither applies to the Palestinians in West Bank, whose prosperity grew at unprecedented rates since 1967, and who are more clearly a separate group now than they were then.

Crucially, the Convention only bars action by the “occupying power” — in other words, the government and public authorities of the country. It does not apply to the movements and real estate decisions of private individuals. Various other parts of the Convention distinguish between “nationals of the occupying Power” and “the occupying power” itself; the prohibitions of Article 49 fall exclusively on the latter.

The birth of babies to civilians – we’re not talking Hitlerian birthing homes – is not a “transfer … of its own population” by any plausible definition. Indeed, the newborn is not even part of the previous population of the occupying power! So a significant proportion of settlers never “settled.”

Nothing in the text or history of Art. 49 suggests that it becomes illegal for nationals of the occupying power to reside in the occupied territory. People want to read Art. 49 as saying “the occupied territory shall be prohibited to nationals of the occupying power for residence.” This is a far cry from what it says. It goes against the GC’s humanitarian principles to read it as a restrictive covenant. The precise meaning of transfer – how much government action is required – is undefined by any source I know of, though the Rome Statute’s addition of an “indirect transfer” prohibition only underlines how absent such language is from Art. 49(6).The relevant Security Council resolutions only condemn “the policy and practices of Israel in establishing settlements” (S.C. 446). This seems to support my view.

Given the ambiguities about the scope of the transfer ban, one might look to other incidents of state practice to see how such situations were handled. If there is a general rule that an occupation makes not just the “transfers” by the government themselves, but the continued residence of the transferees and their descendants illegal forever, I am surprised we have not heard of it in other contexts. None of the proposals for ending the occupation of Northern Cyprus, Western Sahara, etc. contemplate removing a single Turk or Moroccan, as far as I know. And while there are not any proposals for ending Chinese occupation of Tibet and Russian occupation of Georgia, no one has suggested that the presence of occupying nationals in those countries is a continued violation of international law. Yes, China violates the GC by shipping Han en masse to Tibet to demographically overwhelm the native population. But has even a law professor suggested their deportation back?

When America occupied Iraq, would it have been illegal for Americans of Iraqi ancestry to move back? I believe some did and no one made an issue of it. Would it matter if they flew there on a U.S. plane? If they moved to a neighborhood that people had moved out of as a result of the war? No one was even asking such questions.

All of this means two things. First, there is nothing illegal about nationals of the occupying power residing in the occupied territory if they get there without being sent by the government, without being “transferred.” The scope of this category is unclear but must certainly include those born in the West Bank. Israel has no affirmative obligation to prevent migration, or to deny municipal services to migrants. Second, even those have been transferred are not themselves doing anything illegal. (I will respond to criticisms of this point from earlier comments in a separate post, really!)

Obama Birth Citizenship Nonsense Refuses to Die

by Peter Spiro

I just finished chatting with Lou Dobbs on his CNN radio show about the latest among those who still deny Obama’s eligibility to be president.  A major in the reserves has balked at being shipped out to Iraq on the theory that Obama is not the commander-in-chief and the war is therefore illegal under international law.  Deniers (aka “birthers”) also have a challenge pending in district court in California that is getting more of a hearing than it should (that is, any hearing at all).  Alan Keyes for the plaintiff!  Check out this profile of the dentist leading the charge (also proving the dangers of “online legal academies”)!  Even Dobbs doesn’t seem to buy in.

The theory is that Obama was actually born in Kenya and that (if so) he would not have been a citizen at birth.  The latter part is true (his mother wouldn’t have satisfied a statutory residency requirement prior to his birth), but of course we have pretty good evidence that Obama was born in the state of Hawaii, and none that he was born in Kenya.  This is starting to look like Whitewater during the Clinton years, except that some of the Whitewater stuff may have had some basis in fact.

Susan Franck on Using Development Levels to Assess Systemic Bias in Investment Treaty Arbitration

by Chris Borgen

Following-up on my recent post on assessing systemic bias in international investment arbitration, readers may be interested in a recent article by Susan Franck of Washington & Lee University entitled Development and Outcomes of Investment Treaty Arbitration. Here’s the abstract:

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status of the respondent state, (2) the development status of the presiding arbitrator, and (3) the interaction of these variables affect the outcome of investment arbitration. The results demonstrate that, at the macro level, development status does not have a statistically significant relationship with outcome. This suggests that the investment treaty arbitration system, as a whole, functions fairly and that the eradication or radical overhaul of the arbitration process is unnecessary. The existence of two statistically significant simple effects – namely that tribunals with presiding arbitrators from the developing world made smaller awards against developed states in particular circumstances – suggests that particularized reform could enhance the procedural integrity of arbitration. Irrespective of whether future research replicates the results, reforms targeted to redress possible imbalance in the system have the potential to enhance procedural justice and the perceived legitimacy of arbitration in an area with profound political and economic implications

Maybe Sotomayor Really is a Closet Sovereigntist!

by Julian Ku

My current take on Sotomayor testimony is that there is an odd discontinuity between her public speeches and articles on the one hand, and her testimony yesterday, and, to some greater degree, her record as a judge on the other. One interesting example is that old chestnut: Should a U.S. judge use international or foreign law to interpret the Constitution? Although my own early reading of her cases suggested that she had little interest in this method, others have pointed to this speech (video at link) from April (of this year!) where she approvingly discusses Lawrence and Roper and other transnationalist/constitutional decisions. Here’s a quote from that speech in an unofficial transcript by Ed Whelan at Bench Memos:

Similarly in a recent case, Lawrence versus Texas, the Supreme Court overturned a Texas state law making it a crime for two people of the same sex to engage in certain intimate sexual acts, and the Justice referred to the repeal of such laws in many, many states and in many countries of the world. In both those cases, the courts were very, very careful to note that they weren’t using that law to decide the American question, they were just using that law to help us understand what the concepts meant to other countries and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking. There may well be times where we disagree with the mainstream of international law, but there is much ambiguity involved. And I for one believe that if you look at the ideas of everyone and consider them and test them, test the force of their persuasiveness, look at them carefully, examine where they are coming from and why, that your own decision will be better informed.

Today, she makes clear that none of this means that she believes foreign or international law should be used to interpret the Constitution. In fact, she seems to flatly reject this as not “permitted”, and even goes so far as to say that “there’s no issue about this question“. (emphasis added)

American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there’s no issue about that question.

Not permitted? Eat your heart out, Peter Spiro! In any event, she then explains that her speech was really about how foreign and international law is really like using any outside source, like law review articles or other sources, to build up one’s knowledge as a judge, and that helps you make a decision as a judge. But it is not binding law.

I don’t really know what to make of this. I am guessing she is simply saying it is not binding precedent, but it could be persuasive precedent? If that is right, than her statement: “American law does not permit the use of foreign law or international law to interpret the Constitution” is misleading. Or maybe she’s had a change of heart and she has decided to join with Justices Scalia and Thomas in the “sovereigntist” caucus!

Here’s one thing to take away, though. It is still not kosher, even for a Democratic nominee to a Senate with 60 Democratic senators, to explicitly or even implicitly endorse the use of international or foreign law to interpret the Constitution. So perhaps constitutional sovereigntism is quite so dead!

Sotomayor Ranks As One of Top Judges Based on Positive Citations

by Roger Alford

My colleague at Pepperdine Law School, Robert Anderson, has just posted on SSRN a draft article, Distinguishing Judges: An Empirical Ranking of Judicial Quality in the U.S. Court of Appeals. According to the abstract:

This article presents an empirical quality ranking of 383 federal appellate judges who served on the United States Court of Appeals between 1960 and 2008. Like existing judge evaluation studies, this article uses citations among judicial opinions to assess judicial quality. Unlike existing citation studies, which treat positive and negative citations alike, this article ranks judges according to the mix of positive and negative citations to the opinions, rather than the number of citations to those opinions. By distinguishing between positive and negative citations, this approach avoids ranking judges higher for citations even when the judges are being cited negatively. The additional information provided by this data produces strikingly different results from those found in the existing count-based studies of judicial performance. When the mix of positive and negative citations is taken into account, many of the most highly cited judges from the citation count studies are only average and some of the average judges in the citation count studies emerge as the most positively cited.

Applying this methodology to Sonia Sotomayor, Rob Anderson concludes that she is ranked 3rd out of 95 active judges in terms of positive citations:

By comparing positive and negative citations to judges who served over the same time period, we can arguably get a rough sense of relative judicial quality…. Judge Sotomayor ranks 3rd out of 95 active judges in outside-circuit citations, with 81.6 percent of her citations positive…. It appears that Judge Sotomayor’s work product is very highly respected by a wide swathe of the federal judiciary…. In every subset of the data, Judge Sotomayor is in the top 31 of the 383 ranked judges, and actually ranks first among all such judges in outside-circuit citations to panels on which she served…. These results reveal a great deal about Judge Sotomayor’s ability to produce persuasive consensus opinions that command respect throughout the federal appellate judiciary.

The Arab-Israeli Peace Process as a Real Estate Transaction

by Kenneth Gartner

[Kenneth L. Gartner is a partner with Lynn & Gartner in Mineola, New York and an adjunct professor at Touro Law School. He has served as a New York State District Court judge]

The classic formulation of the basic premise underlying the Arab-Israeli “peace process” is “land for peace.” Its proponents thus categorize the so-called peace process as a real estate transaction: The entry into a contract pursuant to which a commodity possessed by Israel, i.e., real property (land), will be exchanged for a stated consideration which it is assumed is solely within the power of the Arabs to either withhold or convey (peace). It is therefore properly analyzed in these terms.

When the proponents of the process envision the “settlement” of the conflict via the signing of a treaty or other agreement, what they are really talking about is a classic real estate closing. In fact, Black’s Law Dictionary (8th ed., Thomson-West) defines a “closing” as “the final meeting between the parties to a transaction, at which the transaction is consummated; esp., in real estate, the final transaction between the buyer and seller, whereby the conveyancing documents are concluded and the money and property transferred. — Also termed settlement.”

Black’s observes that in a typical real estate closing, the consideration, usually cash, is transferred at closing to the seller (in this case, Israel), in exchange for the transfer of title to the realty to the purchaser (the Arabs). In this situation, however, the payment cannot by its very nature be made in cash on closing. “Peace” — the cessation of attacks against Israel – can by its very nature only be obtained in installments, over time.

What is typically required in such a situation is “security.” As defined by Black’s, “security” is “collateral given or pledged to guarantee the fulfillment of an obligation; esp., the assurance that a creditor will be repaid (usu. with interest) any money or credit extended to a debtor.”

When the payment by the buyer to the seller of the purchase price is deferred in a real estate transaction, and does not occur in full at closing, the seller typically takes back a “purchase money mortgage” as security. A “purchase money mortgage” is defined by Black’s as “a mortgage that a buyer gives the seller, when the property is conveyed, to secure the unpaid balance of the purchase price.” The seller becomes a mortgagee, the buyer a mortgagor.

This is where problems arise….

WSJ Toes the Sovereigntist Line Against Sotomayor

by Peter Spiro

With nothing much else to work with, Collin Levy presses the international law angle on Sotomayor with this op-ed piece in today’s Wall Street Journal.

In a speech to the American Civil Liberties Union of Puerto Rico in April, Judge Sotomayor explained that “ideas have no boundaries,” and that “international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.” To discourage the use of foreign or international law, she added, would “be asking American judges to close their minds to good ideas.”

That’s political quicksand for a judge Democrats are eager to portray as a moderate inclined to narrow reading of text and precedent.

Pretty lame, especially given the full context of her remarks. As Julian has pointed out, there’s reason to believe the contrary — that Sotomayor has taken a measured, conventional approach to the use of foreign and international law. (As I predicted out yesterday, she certainly will take a measured, conventional approach on the subject in the hearings.)

The Levy piece is useful as a thumbnail restatement of the sovereigntist mindset:

[U]sing foreign law as a guidepost or inspiration raises issues of both sovereignty and democracy by permitting jurists outside the U.S. system to guide the trajectory of our democracy. The proper place for the consideration of whatever “good ideas” may be found in foreign law is not the courts but the Congress.

Our system of government has stood the test of time not in spite of but because it is uniquely drawn from the priorities of our own citizens, and them alone. The responsibility of the Supreme Court is neither to win an international beauty pageant, nor to encourage the export of our ideas. It is to extend principles of the Founders and the words of the Constitution into a world that still needs their wisdom.

Republicans know they aren’t going to block Sotomayor’s confirmation, so they must be testing the waters (here and with the fight over Harold Koh) on whether they have an issue that resonates broadly with the electorate. My guess is they don’t.

Amos Guiora on the Law of Targetted Killings

by Peggy McGuinness

Related to Ken’s earlier post, Amos Guiora has a piece up at Foreign Policy describing the legal analysis he applied when advising the Israeli Defense Forces on targeted killings of terrorists. He argues that international law permits targeted killing when certain conditions are met:

The decision to use targeted killing of terrorists is based on an expansive articulation of the concept of pre-emptive self defense, intelligence information, and an analysis regarding policy effectiveness. According to Article 51 of the U.N. Charter, a nation state can respond to an armed attack. Targeted killing, however, is somewhat different because the state acts before the attack occurs. In addition to self-defense principles, the four critical principles of international law — alternatives, military necessity, proportionality, and collateral damage — are critical to the decision-maker’s analysis.

The basis for the attack is intelligence information that meets a four part test: Is it reliable, credible, valid, and viable? Given the stakes, corroborated information is significantly preferable to information that comes from a single source.

His use of a specific case (one in which he ultimately did not give legal approval for the killing) is helpful to understanding the real life and real-time constraints on both the commander and legal adviser. The bottom line: lawyers need to be skeptical and ask the right questions of their intelligence counterparts before giving the green light to these operations and at the same time weigh the effectiveness of the operation — no easy task. Casual deference is not an option where one is relying on principles of self-defense.  It’s worth reading the whole essay.

The NYT on the CIA Targeted Killing Planning Post 9-11

by Kenneth Anderson

I see that I’m quoted by Mark Mazzetti and Scott Shane in their New York Times article today, “CIA Had Plan to Assassinate Qaeda Leaders” (July 13, 2009). I’m trying hard to maintain radio silence and not blog, in order to let my shoulder heal up, but let me say something briefly about this.

The Blog Post I Wish I Had Written or, What Jay-Z Can Teach Us About American Hegemony

by Chris Borgen

Marc Lynch at Foreign Policy.com has written one of the best blog posts I have read in a long time: Jay-Z vs the Game: Lessons for the American Primacy Debate.  Lynch combines a music obsessive’s knowledge of rap with an international relations scholar’s understanding of power politics. This is a story of rising challengers, sneak attacks, structural power, transition narratives, and alliance politics.  And if your reaction is “blah, blah, I don’t like rap,” I say just go read the post anyway, it is great whether or not you care about the history of the Jay-Z/ Nas beef.

In short, it is an excellent lesson on analyzing power relationships. And did I mention he’s got links to music? Bonus!

The AU Continues to Splinter over Bashir

by Kevin Jon Heller

Two updates of note.  First, the Ugandan government has said in no uncertain terms that it will arrest Bashir if he enters the country:

Henry Oryem Okello, Uganda’s minister for international affairs, spoke after meeting with the International Criminal Court’s chief prosecutor, Luis Moreno Ocampo, in Kampala.

Police “will ensure that he is arrested” if al-Bashir arrives, Okello said.

Ocampo added: “It is a legal obligation for Uganda to arrest Bashir if he comes to Uganda.”

The Ugandan government has previously supported efforts to defer the arrest warrant.  It is unclear whether the newest statement means that position has changed — although it is important to note that the two positions are in no way inconsistent: a government can push for deferring the warrant while still maintaining a committment to cooperating with the ICC if those efforts fail.

Second, NGOs in South Africa are arguing that the South African government is constitutionally obligated to cooperate with the Court:

The South African government came under fire from newspapers and legal experts who said that president Jacob Zuma was reneging on his country’s legal obligations.

Professor Du Plessis from University of KwaZulu-Natal said that resolution directly conflicts the South African constitution.

“South Africa is also one of only three states on the continent to have domesticated the ICC statute’s provisions into its national law,” he wrote in ‘Cape Town’ newspaper

“South Africa’s ICC implementation legislation, passed by our Parliament as Act 27 of 2002, holds in Section 8 (2) that were al-Bashir to be present on South African territory, and the ICC were to request his arrest, the director-general of the Department of Justice “must immediately on receipt of that request, forward the request and accompanying documents to a magistrate, who must endorse the warrant of arrest for execution in any part of the republic,”

The South African NGO’s including the Centre for Applied Legal Studies, the International Centre for Transitional Justice, the Khulumani Support Group and Lawyers for Human Rights — will petition President Zuma and his government to take a stand against the AU’s position.

The South African ‘Times’ newspaper quoted the groups as saying that the resolution is “unconstitutional” if the government agrees to it.

The groups said that the meeting’s declaration “requires it to break its international treaty obligations and to defy its own law and constitution”.

They urged Zuma to publicly state that his government would honor its obligations or else the group “will decide how further to engage and respond”, which could include court action.

Unidentified South African officials speaking to ‘Cape Town’ newspaper acknowledged that government “is in a difficult position” over the resolution which conflicts with its obligations under the Statute.

This is a very interesting strategy — and one that should be encouraged.  It is bad enough that AU members who are also members of the ICC are willing to ignore their obligations under the Rome Statute.  They shouldn’t be allowed to ignore their domestic law, as well.

By the way, I’m curious as to which other states have incorporated the Rome Statute into their domestic legislation.  I believe that Senegal is one, but am not sure.  Anyone know?

Assessing Systemic Bias in International Investment Arbitration

by Chris Borgen

I want to quickly point to a post from late last month at EJIL: Talk! that I just recently came across. Tolga Yalkin considered the argument that international investment arbitration as a system is fundamentally biased. Considering arguments set out by Professor M. Sornarajah of the University of Singapore, Yalkin wrote:

Sornarajah advanced the proposition-enjoying increasing purchase in the international legal community-that bilateral and multilateral investment agreements and the system of international investment arbitration was conceived, and indeed continues to operate, on a number of false assumptions. Foremost among these is the ‘hunch’ that a system of international investment arbitration would significantly increase the inflow of capital to developing countries, bringing with it wealth and development to some of the world’s poorest citizens. According to Sonarajah,this justification has been promoted by neo-liberal business interests-rather than arising from genuine social concern, Furthermore, he claims that the system has ‘entrenched’ itself by providing arbitrators and international law firms-for whom the system ‘produces golden eggs’-with vested interests. The result, as he sees it, is that the system is intrinsically geared towards the interests of business and capital-exporting States. In support of this contention he provides examples that illustrate the expansion of jurisdiction enjoyed by tribunals.

Yalkin argued that:

Despite painting a compelling picture of what he sees as the true nature of international investment arbitration, Sornarajah’s submission must be seen, at best, as a starting point for further inquiry. The main flaw of his approach is that reaching firm policy conclusions requires more than polemic arguments and anecdotal examples; it requires a solid and rigorous analytical approach to considering both:

(1) the outcome of investment decisions; and

(2) the legal reasoning engaged in by investment tribunals.

Turning to the task of assessing systemic bias, Yalkin first critiqued some of the difficulties in attempting to chart jurisprudential trends as an empirical matter. Next, he argued that the outcomes of cases are only part of the story; it is only by analyzing the reasoning can one assess issues of systemic bias. Yalkin found that Sornarajah’s argument “that neo-liberalistic ideology took root in the context of international investment arbitration, perpetuating business interests to the detriment of the developing countries, has merit.” (I considered in this article the question of whether and how international investment arbitration assists in the transfer of international norms into a domestic society.) However, it is in need of emprical verification. Yalkin, for his part, does a good job in setting out the pitfalls and hurdles in trying to assess systemic bias in investment arbitration and makes some useful suggestions in how to move forward.

Get Ready to Parse Sotomayor on Foreign Law

by Peter Spiro

So far in opening statements from Sotomayor confirmation hearings, we have John Cornyn and Tom Coburn condemning the use of foreign law in constitutional interpretation. You can be sure that they will follow up in colloquys — in Cornyn’s, possibly his first. (Michael Chertoff made it one of his suggested questions on the Times op-ed page this morning; and one might also expect the likes of John McGinnis and Ilya Somin to touch on the subject as witnesses for the Minority, given their (co)writing in the area.)

You can also be sure that Sotomayor’s response on the issue will have been well rehearsed. What will she say? Easy money would be on a “it is above all our Constitution” line to lead, with some allowance for international practice by way of an empirical aid. I can’t imagine she’ll acknowledge any greater place for it. That’s progress from the unalloyed rejections of Roberts and Alito during their hearings, but hardly sets the stage for any more Ropers, at least not in the short term.

Guiora on Judicial Review and the Executive

by Chris Borgen

Amos Guiora has a new essay at Jurist about judicial review and decision-making in the executive branch. It begins:

Judicial review is judicial review. It is all or nothing. Sitting as the High Court of Justice, the Israeli Supreme Court proved that once again this week. The facts of Ashraf Abu Rahma vs. The Judge Advocate General (HCJ7195/08) are simple: the Israel Defense Forces’ Judge Advocate General decided to order a disciplinary hearing rather than a criminal trial for a brigade soldier who fired rubber bullets at a handcuffed Palestinian. In response to this judgment, human rights groups filed a petition to the High Court arguing that the decision was unreasonable and that the brigade commander must be brought before a court martial.

The Court held that the JAG’s decision was not reasonable, thus clearly emphasizing a powerful lesson: the executive cannot operate outside the boundaries of the law, especially when it involves the use of military force. This lesson should reverberate loud and clear in the US courts, where the judiciary should end its near automatic deference to executive determinations regarding the use and application of force.

[Empasis added.]

Later, he writes:

Nothing is more dangerous to a democracy than an ‘unfettered executive’. Justice Jackson was both prescient and correct in Youngstown Sheet and Tube Co. v. Sawyer. His concern was also timeless. This principle must be applied across the board. Encouraging judicial review of some executive branches but not others will do no more than ensure unequal justice under law. The JAG’s decision must be subject to review in the same vein as that of any other executive decision maker. The essence of active judicial review is to protect the unprotected and to ensure that the executive acts within reasonable boundaries as broadly defined.

By ruling that the JAG did not act within these boundaries, the Court is sending a loud and clear message: the executive is subject to strict judicial review and it cannot hide behind the cloak of executive decision making. That powerful and compelling message should be adopted by the US Supreme Court, particularly when striking a balance between the legitimate rights of the individual and the equally legitimate national security rights of the State. The free pass that the Supreme Court has historically granted the executive in national security cases (Korematsu v. United States being the poster child) has, in the long-run, harmed the individual and the state alike.

Check it out.

More on Mil Coms to Come

by Deborah Pearlstein

Lest anyone think last week’s pair of hearings were Congress’ last word on the question of military commission trials, the House Armed Services Committee has already scheduled it own hearing on reforming the Military Commissions Act. The July 16 witness list features the head lawyer from each of the armed services (Army, Navy, Air Force, Marines). 

Also, in keeping with Congress’ stepped up pace on these issues, there are at least some hopeful signs of push back from the security community itself against Congress’ ill-considered decision a few weeks back to preclude the President from transferring any of the Gitmo detainees to the United States.  A star-studded list of military and intelligence community experts sent a public letter to Congress last week arguing that finding ways to transfer some detainees to the United States is essential to closing Gitmo – which is itself a goal that remains at the core of U.S. national security interests.  Among the signatories: Brig. Gen. Mark Kimmit (Deputy Director of Operations in Iraq during Operation Iraqi Freedom); Phil Zelikow (State Department Counselor in the G.W. Bush Administration); Bob Hutchings (head of the National Intelligence Council also under G.W. Bush); Ali Soufan (former FBI agent who famously testified to the ineffectiveness of torture in interrogation); and many more.  I haven’t seen I haven’t seen a link to the letter anywhere, so I’m pasting the full text as emailed to me after the jump.

Holder Leaning Toward Appointing Torture Prosecutor (Updated)

by Kevin Jon Heller

This according to Newsweek:

Holder, 58, may be on the verge of asserting his independence in a profound way. Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. “I hope that whatever decision I make would not have a negative impact on the president’s agenda,” he says. “But that can’t be a part of my decision.”

I think Holder has it precisely backwards: appointing an independent prosecutor is the only way that the Obama administration will be able to focus its attention on its domestic priorities.  Obama can talk about the need to look forward instead of backward all he wants, but he’s not fooling anyone — most Americans know full well that “not looking backwards” means “impunity for systematic criminality.”  That’s why appointing an independent prosecutor is so essential from a domestic policy perspective: Obama will no longer constantly be on the defensive about his stubborn unwillingness to hold the Bush administration accountable for its innumerable crimes, the evidence of which mounts with each passing day.  On the contrary, he will be able to point to the independent prosecutor and say — justifiably — “it’s inappropriate for me to comment until the prosecutor completes his investigation.”  The crimes get investigated, Obama gets political cover, and everyone is happy.

Other than the criminals, of course.

UPDATE: The Washington Post‘s story adds the following ominous note: “But the sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the “four corners” of the legal memos….  The actions of higher-level Bush policymakers are not under consideration for possible investigation.”  As Glenn Greenwald notes, it would be very unfortunate if only low-level interrogators were investigated.  That said, I’m not sure that it would be “something close to the worst of both worlds,” as another blogger has described it.  The CIA interrogators whose torture went beyond even the torture authorized by Yoo, Cheney et al. are certainly deserving of investigation and prosecution in their own right. And I would hope that such a public investigation of the interrogators would ratchet up the pressure on Holder to expand the independent prosecutor’s brief.

Surveillance Showdown At Ashcroft’s Sick Bed

by Roger Alford

Yesterday the Obama Administration released the report of the Intelligence Community Inspectors General. It is an important and interesting story about the Bush Administration’s Presidential Surveillance Program (PSP). Jack Balkin has more here and here and Andy McCarthy here.

The most gripping story in the report is the fight between the White House and the Department of Justice in March 2004 to secure reauthorization of the surveillance program. It reads as if it came from the pages of a Hollywood screenplay. Here’s the key section (from page 21-25):

[O]n March 4, 2004 … Ashcroft was struck with severe gallstone pancreatitis and was admitted to the George Washington University Hospital in Washington, D.C.

On March 5, 2004, Goldsmith advised Comey… that under the circumstances of Ashcroft’s medical condition and hospitalization, … Comey [should] determine that ‘this is a basis for absence or disability of the Attorney General….

Another meeting at the White House was held on March 9, this time with Comey, Goldsmith, and Philbin present. Gonzales told the DOJ OIG [Office of Inspector General] that the meeting was held to make sure that Comey understood what was at stake with the PSP [Presidential Surveillance Program] and to demonstrate the program’s value. Comey said Vice President Cheney stressed that the PSP was ‘critically important’ and warned that Comey would risk ‘thousands’ of lives if Comey did not agree to recertify the program. Comey … stated … that he, as Acting Attorney General, could not support reauthorizing certain intelligence activities unless they were modified.

Philbin said he was leaving work … [on March 10, 2004] when he received a call from Comey, who told Philbin that he needed to get to the hospital right away because Gonzales and Card were on their way there ‘to get Ashcroft to sign something.’…

Comey arrived at the hospital between 7:10 and 7:30 p.m…. Comey … ran up the stairs … to Ashcroft’s floor, and he entered Ashcroft’s room, which he described as darkened, and found Ashcroft lying in bed and his wife standing by his side. Comey said he began speaking to Ashcroft, and that it was not clear that Ashcroft could focus and that he ‘seemed pretty off[.]’

Goldsmith and Philbin arrived at the hospital within a few minutes of each other…. Comey, Goldsmith, and Philbin entered Ashcroft’s room and, according to Goldsmith’s notes, Comey and the others advised Aschroft ‘not to sign anything.’

Gonzales and Card entered Ashcroft’s hospital room at 7:35 p.m…. The two stood across from Mrs. Ashcroft at the head of the bed, with Comey, Goldsmith, and Philbin behind them. Gonzalez told the DOJ OIG that he carried with him in a manila envelope the March 11, 2004, Presidential Authorization for Ashcroft to sign…. Gonzales first asked Ashcroft how he was feeling and Ashcroft replied, ‘Not well.’ Gonzalez then said words to the effect, ‘You know, there’s a reauthorization that has to be renewed….’

… [A]t this point Ashcroft told Gonzales and Card ‘in very strong terms’ about his legal concerns with the PSP, which …Ashcroft drew from his meeting with Comey about the program a week earlier…. Comey testified that Ashcroft next stated: But that doesn’t matter, because I’m not the Attorney General. There is the Attorney General, and he pointed to me [Comey]—I was just to his left. The two men [Gonzales and Card] did not acknowledge me; they turned and walked from the room.

“The Reckoning” on PBS

by Kevin Jon Heller

PBS will be airing an important documentary about the ICC, The Reckoning, on July 14.  Here is PBS’s description of the film, which is directed by Pamela Yates, who received a Guggenheim Fellowship in 2008:

Over 120 countries have united to form the International Criminal Court (ICC) — the first permanent court created to prosecute perpetrators, no matter how powerful, of crimes against humanity, war crimes and genocide. The Reckoning follows dynamic ICC Prosecutor Luis Moreno-Ocampo and his team for three years across four continents as he issues arrest warrants for Lord’s Resistance Army leaders in Uganda, puts Congolese warlords on trial, shakes up the Colombian justice system, and charges Sudan’s President Omar al-Bashir with genocide in Darfur. Like a deft thriller, The Reckoning keeps you on the edge of your seat. Will the prosecutor succeed? Will the world ensure that justice prevails? An Official Selection of the 2009 Sundance Film Festival.

I worked with PBS on the educational materials for the film, so I’ve had the opportunity to see it.  It’s a genuinely excellent documentary, one that manages to be both educational and exciting.  I particularly like the section on the ICC’s monitoring of the situation in Colombia; as I will discuss in a post later this week, I think that Colombia offers the Court an important opportunity to investigate crimes committed by state agents in a non-African country.  My only criticism of the film is that it largely avoids the controversy that has been swirling around Moreno-Ocampo for the past few years; I could have done without the long, lingering shots of him looking pensive.  But that is a very minor complaint.

Watch The Reckoning!

Additional Thoughts on Eugene’s Post

by Kevin Jon Heller

Thanks, Eugene, for the thoughtful reply.  I look forward to your subsequent posts and will leave a more substantive reply until then.  For now, I just wanted to offer a few thoughts.

1. I don’t think anyone should feel “better” if removing the settlers qualified “only” as a crime against humanity, instead of as genocide.  Both are incredibly grave crimes, and I am always dubious of attempts to rank international crimes in terms of their gravity.  That said, it is difficult to deny that calling something genocide carries more rhetorical force than calling it a crime against humanity.  I think it is important, therefore, to keep the two types of crimes analytically distinct.

2. I would love to discuss originalism vs. textualism in treaty interpretation.  I am absolutely not a textualist, although I am no more comfortable with various orginalisms, such as “original public meaning” or “original expected application.”  I suppose you would describe me as an intentionalist, no doubt reflecting the fact that Stanley Fish was my mentor when I was a literature grad student.  That said, I made clear in my previous post that I have no problem with the ICTR’s extension (in Akayesu) of the “measures intended to prevent births” form of genocide, because I believe that extension was consistent with the intent of the drafters of the Genocide Convention.  My point was simply that it is very unclear whether prohibiting natural growth would satisfy the actus reus of genocide even under Akayesu‘s far more capacious definition.

3. I am bothered by your claim that it is “easy” for me to countenance ethnic cleansing.  That claim presumes that “forcing” the settlers to leave the settlements by prohibiting natural growth would be ethnic cleansing — which is exactly the conclusion that I was questioning.  If it would qualify as ethnic cleansing, I would certainly not countenance it.  Indeed, I would hope the responsible government officials would be prosecuted for their crimes.

4. I also think that your claim reinforces my point that how we label certain actions matters a great deal…

Response to Kevin and commenters

by Eugene Kontorovich

I thank Kevin for his extensive and thoughtful response to my post. You touched on many issues which I hope to address systematically in subsequent posts, such as the illegality of the settlers presence. I’m going to try to avoid getting into those issues right now, since this post (like yours before it) is already quite long. I apologize in advance for typos.

Two points of clarification. What prompted my post is a comment by Sen. Mitchell that the administration wants to see a freeze in settlement growth as measured by births. If, as you suggest, the settlers accepted increasingly crowded conditions and their population continued to grow apace, I do not think this would be considered as satisfying a settlement freeze. If the Administration made clear that Jewish population growth through births was not a problem — they don’t mind if the Jewish population doubles so long as the live on top of each other — I would agree with my critics that this is not about genocide/ethnic cleansing. The problem is Jews not Jewish houses. The Palestinians want a state free of Jews, not of Jewish-built houses. Note that all peace plans contemplate the removal of the Jews, not of the roads, houses and other facilities they have built. This is the significance of Mitchell’s comment about births. If there are still births, that means the screws have not been twisted tightly enough.

Second, I don’t want to sell the Genocide point too strongly because I agree that it might “just” be ethnic cleansing. I’m quite open to the possibility that this is not the actus reus of genocide, but rather just flirting with it. Why that makes any liberal-minded person feel better is beyond me, as we well explore below as I engage some of Kevin’s points, grouped into two headings: 1) does it prima facie violate the Genocide Convention; 2) is there some warrant or excuse for sometimes violating it?

1. Human Rights Originalism.

We are not discussing whether Israel can forcibly remove them for military necessity – though by the way, I think invocations of such Art, 49 provisions applied to only one ethnicity would be highly suspect these days. We are talking about whether the U.S. can seek their removal for diplomatic reasons.

You argue that the Genocide Convention’s ban on “measures designed to prevent births” is limited to the kind of methods used in World War II by the Germans. That’s a fair point and not one that I would rule out. It depends on whether we are human rights treaty Originalists or Textualists. I know many of my conservative friends would be delighted to find Originalism alive and well in international law. But keep in mind that the same kind of questions arises with the Geneva Convention itself. An originalist approach to both treaties would say neither the settlements nor the ban on their natural growth violates international law….

Post-Acquittal Detention

by Deborah Pearlstein

[Cross-posted at Balkinization]

While Congress has held two lengthy hearings this week ostensibly on the use of military commissions to try detainees for war crimes, the only item that seems to be getting any significant play is this statement by Pentagon General Counsel Jeh Johnson regarding the administration’s view on its authority to hold detainees even if they are ultimately acquitted at a commission trial. The Senate witness statements are here. The House testimony is here. (Full disclosure, I was a witness at the House hearing.)

The Washington Post story quotes Johnson as saying:

“The question of what happens if there’s an acquittal is an interesting question — we talk about that often within the administration…. If, for some reason, he’s not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think it’s our view that we would have the ability to detain that person.”

I think there’s actually less news here than perhaps meets the eye, but I fully understand the reaction that many, including a number in Congress, seem to be having. If you can hold them forever anyway, why even bother with a trial? And what could possibly be such a court’s claim to legitimacy if its rulings have such negligible significance?

So there’s a technical answer in international law, and a practical answer about where we find ourselves today. The technical answer is clear if one imagines for a moment we’re in the midst of a modern World War II – a classic international armed conflict, in which it is entirely possible that war crimes will be committed; in which the United States’ authority to hold, say, prisoners of war, is undisputed; and in which the United States has in all instances scrupulously carried out its obligations under the Geneva Conventions and other relevant law. The U.S. Army takes into its custody a Nazi soldier implicated in the murder and rape of civilians. Under current law, we could detain the soldier until the end of the armed conflict without trial (provided we continued to treat him in compliance with Geneva and any other relevant laws). But it’s looking increasingly like the armed conflict may end before next year. And if this guy is really guilty of war crimes, he deserves to be in custody (under a criminal sentence) for far longer than that. So we try prosecuting him. Unfortunately, some key witnesses end up refusing to testify at trial, and the soldier is acquitted. Also unfortunately, the war continues to drag on. Could we go back to holding him as a POW? I’d welcome correction, but I’m not aware of any international law bar to continued POW detention under those circumstances.

Does that technical answer apply in today’s rather different circumstances? The answer turns not on anything new Mr. Johnson just said, but on an argument the Administration has been asserting in Gitmo habeas litigation for months already. The Administration’s litigating position is that there is an ongoing, non-international armed conflict (i.e. a conflict not between two states, but between the United States and the organization Al Qaeda); and that the 2001 AUMF passed by Congress gives it ongoing authority to subject certain individuals (just who is the central subject of litigation) to military detention until the end of the U.S.-v.-A.Q. conflict. There is nothing in the Geneva Conventions that would affirmatively authorize such detention. But neither is there anything in the Geneva Conventions that would squarely prohibit it (provided, as always, it’s subject to adequate procedures, humane treatment, etc.). If the Administration is right about the scope of the AUMF – an interpretation that I believe is overbroad but that has so far been largely winning in the district courts – then presumably the same logic about post-acquittal detention applies as in the Nazi case.

So what’s the problem? I’d say several. First, the Administration’s litigating position on the scope of detention authority under the AUMF is hardly as clear cut as the detention authority the United States asserted over the hypothetical Nazi soldier. Its interpretation of the AUMF is, as I noted, pretty generous for a statute that doesn’t mention the word “detention” and that of itself sets forth no procedures under which such detention is to be carried out. Indeed, it’s still not clear to me the Administration has taken that position with respect to the scope of the AUMF anywhere beyond the so-called legacy cases (those detainee cases pending when Obama took office). Second, the military commission process to date has been anything but a paragon of legality or legitimacy. (Former commission prosecutor Lt. Col. Darrel Vandeveld’s testimony in the House yesterday on where the commissions have been was particularly powerful on this point.) It is possible in theory to conduct lawful trials for war crimes. But there is a great deal of appropriate skepticism (not least among House Democrats) about whether the third try at such a trial system will, particularly at this late date, fix the gross deficits of the past.

Here, the past eight years worth of behavior has left both the legitimacy of the detention authority, and the legitimacy of the trial authority, in substantial question. It is hard to imagine that combining the two will bolster the credibility of either. On the contrary, it seems very likely to make the strategic costs to U.S. counterterrorism policy – costs in weakened relations with our allies, and with the moderate Muslim world – substantially higher.

Colombia, Ecuador, and the very local face of international law

by Rene Uruena

[Rene Uruena is Assistant Profesor and Director of the international law program at the Universidad de Los Andes in Bogota, Colombia. He is also a Fellow at the Centre of Excellence in Global Governance Research, University of Helsinki.]
 

Last year, Colombian armed forces bombed a guerrilla camp a couple of miles into Ecuadorian territory. After some diplomatic tension at the OAS, everyone made up and things appeared to take their course. Or so it seemed. Last week, a judge from the province of Sucumbíos, in the Ecuadorian Amazon, issued an arrest warrant against Juan Manuel Santos, Colombian Defense Minister at the time of the bombings. The charges are serious: the death of 25 people, including one Ecuadorian citizen. In the hearing, Santos was tried in absentia and represented by Walter Lombeida, 32, a public defender in the district of Nueva Loja, Ecuador (pop. 68.000). Here is a photo of the hearing, taken by the Quito daily El Comercio:

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(Walter Lombeida, counsel (left.); Carlos Jiménez, Prosecutor, and Daniel Méndez, Judge).

As word of the warrant spread, all hell broke loose in both countries. Colombian President Uribe called for an ‘elite team’ that would plead before the ICJ and the Inter-American Commission on Human Rights, to “defend Colombian interests and Colombians in this war that, from within and in the international arena, is being waged by terrorism against our country through political and legal means” . The Ecuadorian Government announced an extradition request, and forwarded the warrant to Interpol, which Colombia promptly objected.

And so it was that the problem ended up on Interpol’s lap. According to the BBC, Interpol declined to act on Ecuador’s request, arguing that under Article 3 of its Constitution, “it is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character”. Ecuador pledged to comply with Interpol’s decision, and attempted to lower the profile of the issue, said the Miami based El Nuevo Herald.

The end of the story? Guess again.

A Response to Eugene

by Kevin Jon Heller

First of all, welcome back!  I always enjoy your contributions to OJ (and your scholarship generally), even when I disagree with you.  So I hope you won’t think me too ungracious a host if I raise some (pointed) questions about your most recent post.  I would be genuinely curious to hear your responses.

I am, as I have pointed out ad nauseum, not an expert on international human rights law.  So I’ll limit my comments to whether any of the actions you discuss would qualify either as genocide or as forcible transfer (the technical name for intrastate “ethnic cleansing”).  I am very skeptical that they would.

I will go in order of the post.

The Genocide Convention defines genocide as, among other things, “imposing measures intended to prevent births within the group.” To be sure, Mitchell is not saying the Jewish women in the West Bank should be required to have abortions. Yet the “measures” contemplated by the Genocide Convention are not limited to abortion. Demographic growth requires physical accommodation — bigger homes, new schools, and so forth. If one creates conditions in which there is nowhere to put one’s children — indeed where one is forbidden from making accommodations – one will not have “births” by Jews in the area. Indeed the point of the natural growth freeze is so that people who want to have “natural growth” move elsewhere.

I think it is very difficult to argue that prohibiting “natural growth” in the settlements falls within the Genocide Convention’s prohibition of “imposing measures intended to prevent births within the group.”  As “Student” points out (rather ungraciously) in the comments, this prohibition was inspired by Nazi efforts to eradicate the Jews through forced sterilization, which no one (including you) is suggesting here.  In Akayesu, the ICTR expanded the “classical” definition of “measures intended to prevent births” to include things like sexual mutilation, forced birth control, separation of the sexes, and prohibitions of marriage. That’s an important and justifiable expansion — but prohibiting natural growth still seems to fall well outside of it.

Indeed, I question at least two of the basic premises of your argument here..

And Then There Were 110

by Kevin Jon Heller

The President of the Czech Republic, Vaclav Klaus, has signed the act of Parliament ratifying the Rome Statute, thus completing the Czech Republic’s accession to the ICC.  All of the members of the EU have now joined the Court.

Congrats, Czech Republic!

Caritas in Veritate

by Kenneth Anderson

I am going to be on lite-blogging status for a while, due to a pinched nerve and muscle tear caused – everyone please take careful note – not by my Athletic and Extreme Sports lifestyle, but by bad ergonomic habits at the keyboard.  Let me assure you, at this moment you do not want to be me.

However, while spending my time reading rather than writing, I plan to read (having hastily skimmed and read some commentary about) the new encyclical from the Pope, Caritas in Veritate.  It addresses economic and social development on a global basis, with passages about human rights and their relationship to social duties and the common good, the economic and financial order of the world, the environment, globalization, and much else. There are lots of sites around that have posted it, but here is a Vatican site, so I assume it must be an accepted English version.

I am not Catholic, and so my interest in this encyclical is not that of a believer or adherent of the faith ….

Freezing Natural Growth – “Measures Intended to Prevent Births”?

by Eugene Kontorovich

The U.S. and Europe have been vigorously insisting that Israel stop all “settlement growth,” including “natural growth.” There has been some question as to what those terms mean. In a June 16 press briefing, Sen. George Mitchell said that Israel must stop “natural growth” in settlements, and specified that he means “births” as well. Here is the State Department’s transcript (my emphasis):

QUESTION: Well, what does natural growth mean? I mean, can you just use it in —

MR. MITCHELL: I’m constantly asked by editors, you know, please give a plain explanation of what natural growth is….Well, of course, one of the issues is that there is no universally used and accepted definition. The most common definition is by the number of births, but there are many variations of that. I’ve had numerous discussions with many Israeli and other officials, and there are almost as many definitions as there are people speaking. But I think the most commonly used measure is the number of births.

QUESTION: (Inaudible) that number, please?

MR. MITCHELL: Yes. Yeah.

QUESTION: There seems to be a lot of focus on the talk about settlements, settlements.

MR. MITCHELL: Yeah.

This language is to my ear quite shocking. The Genocide Convention defines genocide as, among other things, “imposing measures intended to prevent births within the group.” To be sure, Mitchell is not saying the Jewish women in the West Bank should be required to have abortions. Yet the “measures” contemplated by the Genocide Convention are not limited to abortion. Demographic growth requires physical accommodation — bigger homes, new schools, and so forth. If one creates conditions in which there is nowhere to put one’s children — indeed where one is forbidden from making accommodations – one will not have “births” by Jews in the area. Indeed the point of the natural growth freeze is so that people who want to have “natural growth” move elsewhere.

Banning natural growth is designed to prevent, indirectly, births among the group, that group of being settlers, or more precisely Jews living in the West Bank.

I’m certainly not suggesting that anyone in the administration is guilty of genocide, or more precisely, genocidal conspiracy, complicity and incitement. I’m not a fan of accusing senior government leaders of high crimes regardless of how objectionable I find the conduct; it makes things personal and confuses debate. In any case, the requisite specific intent is quite difficult to demonstrate. Some supporters and some critics of a freeze speculate its goal is to slowly choke off or dry out these communities. If so, a freeze is to “destroy” the Jews of the West Bank as a group. But this would be difficult to demonstrate. The demographic effects could just be a side effect of the settlement freeze whose principal purposes are diplomatic. And much of it depends on whether “destroy” means the physical destruction of a people, or the destruction of the group as a group. In other words but the administration most likely is trying to promote — the removal of Jews as an ethnic group from the West Bank — is more like ethnic cleansing and genocide, and I believe there’s some dispute as to whether the Convention covers the latter, though I’m not an expert on how this has been applied by the ICTY or ICTR.

Now one might say that the settlements are illegal, an obstacle to peace, amoral, etc. I do not think that bears on whether international law permits suppressing “natural growth” among the civilian population. It should be clear to international lawyers that this would not affect the human rights of the people living there one bit. That is the point of human rights — the only qualification is humanity. This is a theme I hope to explore in subsequent posts. Suffice it to say now that even if creating settlements violates IV Geneva Art. 49, the violation is committed by the State of Israel, not the settlers themselves. They are not in any way punishable for any illegality.

In other words, even if the creation of the settlements was illegal, once they have a permanent resident civilian population, that population may have a right under the Genocide Convention not to have measures taken to prevent its natural growth.

 

Introduction – Israel and Settlements

by Eugene Kontorovich

I would like to thank the Opinio Jurists for having me on board for this short blogging stint. I’ve previously written here about piracy and universal jurisdiction. There is something about the vestigial romance of piracy that makes people enjoy talking about it. It is a fun topic.

This time around I’ll be writing more about a topic that people certainly like to talk about, but could hardly be described as fun — Israeli settlements and international law. Given the intense feelings this topic generates, I hesitate to approach it; it is hard to have a genuinely academic discussion of the legal issues involved.

None the less, given that the question of Jewish communities in the West Bank has come to the fore given the Obama administration’s very high profile push for a settlement freeze, I thought I might try to explore it. One might ask what there is to say on the subject — the consensus amongst international lawyers is overwhelming that pretty much everything Israel is doing in the West Bank is illegal and must somehow be “reversed.” However, the certitude with which this position is advanced, and the lack of nuance, seems to me unwarranted given the ambiguity of the underlying legal texts. The legality of Israeli presence/settlements seems at least “complicated,” and the question of what to do with the “facts on the ground” once they are there even more so.

Some topics I  hope to explore might include:

1) The International Law of Illegal Immigrants and Reliance Interests

2) Applicability of Geneva Conventions and the Meaning of Transfer

3) Ethic cleansing and remedies for violation of anti-transfer rule.

4) Natural Growth and the Genocide Convention

But it is summer, and I’m hardly an expert in these questions, so I doubt I’ll get to all of it. Especially if I manage to squeeze in some pirates as I hope to also do.

 

The Limits of Diplomatic Immunity

by Roger Alford

The case of Diallo v. Maryland presents a tragic story of a diplomat father and his prodigal son.

In October 2006, David Reeves left a party in suburban Baltimore looking for drugs. He approached Abdel Diallo and asked if he had drugs for sale. Diallo said no. Reeves became angry and aggressive, and a struggle ensued. Both Diallo and Reeves were shot, Diallo in the chest and Reeves in the neck. After an investigation and trial, Diallo was found guilty of first-degree assault and the use of a handgun in the commission of a violent crime.

Hama Diallo, Abdel Diallo’s father, was the Executive Secretary of the Permanent Secretariat of the United Nations Convention to Combat Desertification (UNCCD). In this capacity he held the level of Assistant Secretary General of the United Nations, entitling him to diplomatic immunity. Hama Diallo lived and worked in Bonn, Germany, but regularly came to the United States on official business, particularly in efforts to secure ratification of the UNCCD and to perform other responsibilities at the United Nations Headquarters in New York.

At the time of Abdel Diallo’s arrest in October 2006, his father was not on official business in the United States, but he did have a G-4 visa to enter the United States as a foreign diplomat on official business from April 20, 2006 to April 18, 2007. The question presented was whether Abdel Diallo enjoyed immunity under the Vienna Convention on Diplomatic Relations or under the Convention on the Privileges and Immunities of the United Nations. The Maryland state appellate court held that he did not.

Welcome to Guest Blogger Eugene Kontorovich

by Peggy McGuinness

As Ken notes below in his birthday greetings, Opinio Juris is pleased to welcome back Professor Eugene Kontorovich, of Northwestern University Law School, as a guest blogger for the next week.  Professor Kontorovich has done a lot of writing and thinking about legal and policy responses to piracy as well as a range of other private and public international law topics.  His SSRN page is here.  We look forward to his commentary and discussion with our readers– oh, and again wish him a very happy birthday!

Eugene Kontorovich, Soon to Be Guest Blogger …

by Kenneth Anderson

all of us here at OJ wish you a happy birthday!  We’re looking forward to reading your posts here, but hope you have a lovely birthday.

Is it Time to Say “Hi-Diddley-Hey!” to Flanders? (A Few Words on Integration and Secession)

by Chris Borgen

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Coming Anarchy has pointed out this article from The Daily Telegraph about the increasing calls for Flanders to secede from Belgium and how this may be aided by the rise of the EU.

Before getting to the main point, I just have to point out this snarky opening from the article:

The notion that breaking up a country as insignificant as Belgium could lead to anything more appealing in its place may seem far-fetched beyond its shores. But to many of the six million who live in the Dutch-speaking Flanders region, the growing strength of the EU makes it an increasingly attractive option.

“Belgium is too heterogeneous. There is too much diversity and too many different views,” said Jeroen Overmeer, spokesman for Flanders’ Nieuw-Vlaamse Alliante party, separatists who made big gains in this month’s nationwide Belgian elections.

There are too many different views in Belgium for it to survive as a single state!? Anyway, the main issue here is  how European integration can also support the disintegration of existing states. Overmeer explains:

“The EU makes it possible for countries such as this one to split up. We believe we are experiencing both globalisation and localisation. Some problems are global, like defence or the environment, and these need to be dealt with by the EU. But at the same time democracy needs to be closer to the people, and that is why we are a regionalist party. The two trends go hand in hand.”

“Regionalization,” in the sense it is being used in the EU, refers to regions within existing states being given increasing autonomy, without complete sovereignty. This is different from secession–splitting off from an existing state. However, in the EU the line between regionalization and secession is getting thinner and thinner:

For some EU officials, the mere possibility [that Flanders could go it alone] is a triumph for the institution.

“Yes, regions could survive alone,” said Hendrik Theunissen, an official in the forward studies unit of the Committee of the Regions, a Brussels institution.

“The EU does not get involved in internal politics in individual countries, but it is a fact that regions are already well embedded in the EU structures. They opened their first offices in Brussels in the 1980s. Now there are more than 300 of them here. The EU pushes towards decentralisation. Experience shows it has been positive.”

As the EU  deepens, it is giving more and more powers to the regions, which empowers them vis-a-vis their national governments. For example…

Robert McNamara and the ICC

by Peter Spiro

In the flower of his conversion, McNamara ended up supporting US participation in the ICC:

I believe that the human race desperately needs an agreed-upon system of jurisprudence that tells us what conduct by political and military leaders is right and what is wrong, both in conflict within nations and in conflict across national borders.

We need a clear code, internationally accepted, so that not only our Congress and president know, but so that all our military and civilian personnel know as well what is legal in conflict and what is illegal. And we need a court that can bring wrongdoers to trial for their crimes.

Sounds like a lament that he didn’t have clear guidance during his tenure as Secretary of Defense (and his support must have been premised on the understanding that the statute of limitations had run on his transgressions).

For all the enormity of his misjudgment, one has to admire the admission of error. Hard to imagine that from any of the top Bushies, isn’t it?

Where’s the Joint Understanding for the START Follow-on Treaty?

by Duncan Hollis

As widely reported, in Moscow yesterday President Obama and Russian President Medvedev signed a Joint Understanding for the Start Follow-on Treaty. Here’s how the White House fact sheet describes it:

On April 1, Presidents Obama and Medvedev agreed in London that America and Russian negotiators would begin work on a new, comprehensive, legally binding agreement on reducing and limiting strategic offensive arms to replace the Strategic Arms Reduction Treaty (START), which expires on December 5, 2009. On July 6, Presidents Medvedev and Obama signed a Joint Understanding to guide the remainder of the negotiations. The Joint Understanding commits the United States and Russia to reduce their strategic warheads to a range of 1500-1675, and their strategic delivery vehicles to a range of 500-1100. Under the expiring START and the Moscow treaties the maximum allowable levels of warheads is 2200 and the maximum allowable level of launch vehicles is 1600. These numbers reflect a new level of reductions of strategic offensive arms and delivery vehicles that will be lower than those in any existing arms control agreements. The new treaty will include effective verification measures drawn from the experience of the Parties in implementing START . . . . The U.S. and Russian negotiating teams met in April, May, June, and July, and will continue their work toward finalizing an agreement for signature and ratification at the earliest possible date.

But where’s the Joint Understanding itself?  I’ve been unable to locate a copy (and would welcome readers pointing one out to me if I’ve overlooked it).  As summarized, the fact sheet suggests that yesterday’s Joint Understanding might itself constitute a legally binding international agreement.

How Not to Apologize for Praising Hitler

by Kevin Jon Heller

For those of you who aren’t F1 racing fans — which I hope is all of you — you might have missed the charming comments about Hitler that were recently offered by Bernie Ecclestone, the head of the league:

In an interview with London’s The Times newspaper, Ecclestone expressed a preference for “strong leaders,” citing former British prime minister Margaret Thatcher and Max Mosley, outgoing head of Formula One’s governing body, as examples.

He was quoted as saying that democracy “hasn’t done a lot of good for many countries — including this one.”

“In a lot of ways, terrible to say this I suppose, but apart from the fact that Hitler got taken away and persuaded to do things that I have no idea whether he wanted to do or not, he was in the way that he could command a lot of people, able to get things done,” Ecclestone was quoted as saying.

“In the end he got lost, so he wasn’t a very good dictator.”

Ecclestone’s comments provoked a firestorm of justifiable criticism. The editor of the Jewish Chronicle said Ecclestone was “either an idiot or morally repulsive,” and the president of the World Jewish Congress (WJC) called on him to resign.

Ecclestone has made it clear that he has no intention of resigning. And check out his “apology” for his statements:

But Ecclestone said in a telephone interview with The Associated Press that “I think the people who are saying that [I should resign] haven’t got the power to say these things.”

If the WJC is influential, he said, “it’s a pity they didn’t sort the banks out.” Asked to elaborate, Ecclestone said, “They have a lot of influence everywhere.”

[snip]

“It’s probably my fault in that I got dragged into something I wasn’t supposed to discuss — we got out of F1 into something else,” Ecclestone said.

However, Ecclestone said he does not regret praising Hitler’s leadership “except as usual things were taken a little bit wrong.”

“Between ’32 and ’38 he took a country that was bankrupt and made it a reasonably strong power in Europe, but after that the guy obviously is a lunatic,” Ecclestone said.

Congratulations, Bernie, you have managed to outdo your earlier comment about women — that they should dress in white “like all other domestic appliances.”

NRC Studies Cyberattacks

by Duncan Hollis

The National Research Council of the National Academies has just about finalized a lengthy report on cyberattacks–Technology, Policy, Law, and Ethics Regarding U.S. Acquisition and Use of Cyberattack Capabilities.  William A. Owens, Kenneth W. Dam, and Herbert S. Lin edited the study on behalf of a 14 member committee and a 5 member staff.  It should be available in hard copy in a few weeks, but for those who can’t wait, you can download a copy here or read it on line for free (I’m reliably informed that this version is essentially final, subject to a few more editorial corrections).  The 350-page report’s basic thrust is that we need to pay as much attention to questions about offensive uses of information technology as we have to defensive questions of cybersecurity: 

The United States is increasingly dependent on information and information technology for both civilian and military purposes, as are many other nations. Although there is a substantial literature on the potential impact of a cyberattack on the societal infrastructure of the United States, little has been written about the use of cyberattack as an instrument of U.S. policy. Cyberattacks–actions intended to damage [sic.] or adversary computer systems or networks–can be used for a variety of military purposes. But they also have application to certain missions of the intelligence community, such as covert action. They may be useful for certain domestic law enforcement purposes, and some analysts believe that they might be useful for certain private sector entities who are themselves under cyberattack. This report considers all of these applications from an integrated perspective that ties together technology, policy, legal, and ethical issues . . . It describes the current international and domestic legal structure as it might apply to cyberattack, and considers analogies to other domains of conflict to develop relevant insights.

The Report details and supports an extensive list of Findings and Recommendations.  Among the most interesting of the 21 Findings are:

Obama’s Plan to (Temporarily) Use Executive Agreements for Arms Control

by Julian Ku

ABC reports that President Obama is considering the temporary use of executive agreements to create a news arms control treaty with Russia this winter.

MOSCOW — With the clock running out on a new US-Russian arms treaty before the previous Strategic Arms Reduction Treaty, or START, expires on December 5, a senior White House official said Sunday said that the difficulty of the task might mean temporarily bypassing the Senate’s constitutional role in ratifying treaties by enforcing certain aspects of a new deal on an executive levels and a “provisional basis” until the Senate ratifies the treaty.

As far as I know, this has never been done before with respect to arms control agreements, temporarily or otherwise.  But I am willing to be corrected on this.  Whether it has been done before or not, this plan obviously creates some structural tensions.  What if the Senate decides not to ratify? How long are the executive agreements in effect? And why wouldn’t such a method be used for all treaties prior to Senate advice and consent?  Whom should we ask? Maybe the new Legal Advisor to the State Department has an opinion on this?

The US’s Baffling Stance on Gays in the Military (Updated)

by Kevin Jon Heller

I have ignored Obama’s refusal to take concrete steps to end formal discrimination against gays and lesbians, because it’s not really the subject of this blog.  But I have followed his gradual abandonment of his campaign promise to end “Don’t Ask, Don’t Tell” with increasing concern.  It seems clear that he has no real stomach for taking on the military brass — as today’s statement by Adm. Mullens indicates:

“I’ve had conversations with [Obama] about that. What I’ve discussed in terms of the future is I think we need to move in a measured way,” Mullen said.

Mullen said he has discussed with his staff what steps might be taken to implement a change in the policy.

“I haven’t done any kind of extensive review. And what I feel most obligated about is to make sure I tell the president, you know, my — give the president my best advice, should this law change, on the impact on our people and their families at these very challenging times,” he said.

By “our people,” Adm. Mullens clearly wasn’t referring to the more than 13,000 soldiers who have been kicked out of the military because of DADT since 1993.  The military couldn’t care less about the impact of DADT on them.

There are many things about the US military that I do not understand, but its counterproductive hostility to permitting gays and lesbians to serve openly has to be at the top of the list.  The military’s “defense” of DADT gets increasingly bizarre with each passing day…

At Least Bashir Won’t Be Traveling to Botswana

by Kevin Jon Heller

Botswana has refused to go along with the AU resolution that — in theory — guarantees Bashir safe travel around Africa:

Botswana says it will not abide by an African Union (AU) decision to ignore an arrest warrant issued by the International Criminal Court (ICC) for Sudan’s President Omar Al-Bashir.

Countries signed up to the ICC have a duty to help arrest anyone wanted by it, and that includes Sudan’s President who is accused of war crimes in Darfur.

So when the AU announced its refusal to cooperate with the court over Mr Bashir, the court’s prosecutor was quick to point out that it was not for the AU to refuse.

Now Botswana’s foreign minister Phandu Skelemani has said Botswana was not given a chance to voice its objections at the AU, and the question had not been put to a vote.

Mr Skelemani said Botswana’s position was still that it would meet its obligations.

Government spokesman Jeff Ramsey also says Botswana will continue to cooperate fully with the court and arrest Mr Bashir.

“The Government of Botswana does not agree with the decision and wishes to reaffirm its own position, that as state party to the Rome Statute of the International Criminal Court, it has treaty obligations to fully cooperate with the ICC in the arrest and transfer of the President of Sudan to the ICC,” he said.

Skelemani’s comments make clear that the AU’s decision was anything but democratic.  Indeed, other reports indicate that the resolution is more controversial than the AU is letting on…

Ruth Wedgwood on the Florence Hartmann Contempt Trial in the ICTY

by Kenneth Anderson

KJH has already remarked here at OJ on the contempt trial in the ICTY of Florence Hartmann.  Ruth Wedgwood (SAIS-JHU and also a fellow member of the Hoover Task Force on National Security and Law) offers an analysis at the American Interest online and, like Kevin, thinks this an unfortunate move by the tribunal.

Happy July 4 …

by Kenneth Anderson

to those celebrating it.  (Not everyone at OJ rains on the July 4 parade!)  For those in DC, in addition to the usual stuff, you might check out the historical reenactment of Frederick Douglass’s July 5 speech, as Randy Barnett notes, at its historic site in Anacostia (Professor Barnett has a very interesting discussion and commentary on the speech at VC):

July 5th Oration by Frederick Douglass: Tomorrow I am hoping to attend a recreation of Frederick Douglass’s Independence Day oration at his home in Anacostia, DC:

FREDERICK DOUGLASS SPEECH.  Sunday at 1. Reenactor Kevin McIlvaine delivers the speech, originally given by the abolitionist on July 5, 1852, that focused on the failure of the Declaration of Independence to fulfill its promise to provide freedom for African Americans. Frederick Douglass Home, 1411 W St. SE. 202-426-5961. Free.

The point of Douglass’s speech was to force attention to the gap between the ideals of the Declaration and the Constitution, on the one hand, and the reality on the other.  It is the usual path of reform in the United States, even if this one took the Civil War just to get underway.  For me personally, July 4 is a moment to focus on Lincoln’s view of the Constitution, viz., that it is to be understood in light of the Declaration of Independence.

There are lots of other questions, many salient to the experience of other societies – was the American war of independence a revolution or a secession, as Ilya Somin discusses at VC.  The answer, he says, is both.  Which I would frame as saying that it was a secession as to the source of power, but a revolution as to the source of legitimacy.

The Declaration, particularly as Lincoln understood it, is an assertion of human rights universalism but within the structure of popular democracy and the consent of the governed.  That is, for Lincoln, its connection to sovereignty – sovereignty is legitimate insofar as it is the expression of the consent of the governed, a self-governing political community: sovereignty defined, in Lincoln’s famous phrase in a letter to Congress, as a “political community, without a political superior.”  The Declaration of Independence melds two things: consent of the governed through democratic processes, and a level of substantive, bottom line human rights liberalism.  One without the other doesn’t work so well, even if finding a way to bring them together is difficult and often involves inconsistencies and tradeoffs between two important, closely related, but finally distinct categories of political value.

Beyond the Curtain of July 4th Naturalization Ceremonies

by Peter Spiro

As happens every July 5th, tomorrow’s newspapers will carry reports of attractively diverse groups of immigrants naturalizing as U.S. citizens in uplifting ceremonies, flags waving, with predictable but heartfelt welcomes from judges and elected officials. This Independence Day ritual is perhaps the only public relations play of the federal government’s immigration agencies that seems to work. It bears out all our longings that citizenship hold a sacred place as a source of national pride and renewal.

But the uplifting July 4th ceremonies are not the norm. More than half of all naturalizing immigrants take their oaths of citizenship in administrative procedures at local offices of U.S. Citizenship and Immigration Services, successor to the old INS.

The surroundings are drab, often on the same hallways as hearing rooms in which less fortunate immigrants fight deportation. Low-level USCIS bureaucrats preside. As applicants stand in line to finalize their paperwork (after which they receive a 102-page pamphlet on U.S. history and a cheaply-produced American flag), the space takes on the feel of a waiting room. The backdrop has all the transformative feel of a DMV.

Which it might as well be, for many of the participants. In their Sunday best and accompanied by families, the event has clearly retained its traditional significance for some. One has to feel a little sorry for these citizens-momentarily-to-be, given the tawdriness of the official reception.

But others by all appearances might as well be signing up for their drivers licenses. And who can blame them. The application process leading up to this day is slow and expensive. Application backlogs now stretch out as long as two years. In August 2007, the application fee almost doubled, to $675. For an immigrant family of four, that’s more than $2500. Those July 4th ceremonies would look a lot less dignified with money orders in the picture. And query whether applicants are getting good value on their dollar.

The Africa Union and the ICC

by Kenneth Anderson

I don’t know quite what to make of this story from the AP of July 3, 2009:

African leaders approve anti-ICC move

SIRTE, Libya (AP) — African leaders have approved a contentious decision to denounce the International Criminal Court and refuse to extradite Sudan’s President Omar al-Bashir.

The final decision by the African Union heads of state summit says AU members “shall not cooperate … in the arrest and transfer of the President of Sudan to the ICC.”

The story adds that “some leaders say there was strong dissent on the text. Benin Foreign Minister Jean-Marie Ehouzou says that Sudan’s neighbor, Chad, objected to the wording.”

At Complex Terrain Lab, Tim Stevens notes that the BBC carries the story as well and adds, “This can’t be good news.”  Eric Posner at Volokh Conspiracy puts a broader gloss on it, suggesting that the move demonstrates the “limits of global legalism,” and adds that the ICC

is rapidly being downgraded to a development institution, one that can provide legal and judicial capacity to states that request its help in battles with insurgencies, such as Uganda and the Central African Republic.

The ICC as technical assistance and development organization?  If so, it comes wrapped in very peculiar clothing – viz., the power in theory at least to compel its technical assistance.  But I suppose that if this report from the AU meetings prove true, then it might turn out to be the ICC has its effects mostly under circumstances where it might look like an institution with independent teeth, but in actual performance is more like a technical assistance body that depends upon cooperation.

I myself have always thought that the question underlying the ICC is whether it is actually possible to have a judicial institution that is stronger than the political, social and cultural matrix from which judicial institutions ordinarily, in Weberian terms, derive their legitimacy and authority.  Eric is expressing a material, realist skepticism; mine is a skepticism based in idealism, one that accepts notions of legitimacy as carrying genuine weight – but which then asks what the basis for legitimacy and authority is supposed to be, and what the theory of legitimacy is, if it does not otherwise satisfy classically Weberian conditions.  The answer seemed to be, not a problem, because the ICC will address only such beyond-any-defense issues of genocide and crimes against humanity and obvious war crimes that the question of it being embedded in a pre-existing social order won’t matter.  It will have its own legitimacy the way that Nuremberg is supposed to have a kind of auto-legitimation.

Maybe that’s so, and maybe this resolution, if it turns out to be true and lasting, still won’t turn out to have bad effects.  Maybe, for example, the EU and the US can put on enough political pressure that it is just another forgotten diplomatic declaration at some forgotten conference.  One data point is not the stuff of infinite straight line extrapolation.  But still, at first blush this doesn’t look like a great data point on the road to showing that the stuff of the ICC is so obviously bad, bad, bad in the eyes of the “international community” that it obviates the usual Weberian embedding of judicial orders within social and political ones.

EU Proposals for Global Financial Regulation Reform

by Kenneth Anderson

The Economist has a short article discussing EU proposals for financial regulation reform, in the July 4, 2009 issue, “Divided by a Common Market.”  The article is not persuaded that EU regulatory reforms, divided on at least two fundamental matters, will get very far, very soon:

The EU remains riven by two deep divides on the regulation of finance.

The first is an ideological one over the degree of freedom that should be afforded to markets. It pits a weakened and distracted Britain, whose appeal as a financial centre in less troubled times was enhanced by its “light-touch” regulation, against countries such as France and Germany, which feel their long-standing distrust of freewheeling markets has been vindicated. “There is a large body of people who say that the Anglo-Saxon model has failed,” says a person involved in the new regulations. “Now they see the chance to bury it.” Tougher regulations may also peg London back in its rivalry with other European centres such as Frankfurt or Paris.

The second divide is between countries that want large cross-border banks to be overseen by a single European supervisor and those that want them to stay under the control of home regulators. The question of who is in charge cuts to the heart of Europe’s problems. Its banks operate in a largely borderless market but are often closely watched only at home.

The Political Economy of Sovereign Bond Ratings (and Travel)

by Chris Borgen

Thomas Barnett has pointed out a map in Business Week that is coded for the sovereign bond rating of each country (the map is a click-through from this page).  What Barnett calls the “Old Core” (the U.S.,  Canada, western Europe, etc.) tend to have the highest ratings, the “New Core” (Brazil, Russia, India, China and other rising powers) have the next highest group of ratings and “Gap” states (which are relatively disconnected from the global economy) have the lowest ratings.

It is interesting to flip between the bond rating map, and Foreign Policy’s failed states map.  They track to each other fairly well. Moreover, it also has a decent correlation with this map that charts travel times to major cities. Comparing the transportation map to the bond rating and failed state maps, one sees that, generally speaking, the better a country is connected to world travel, the more stable its government and the better-rated its economy. Don’t ask me which came first, though, the connectivity or the stability…

Congress to Hold Hearings on Military Commissions, Detention

by Deborah Pearlstein

Next week looks to be a busy one on Capitol Hill. As the Obama Administration Task Force on Detention nears its initial July 21 reporting deadline, both the House Judiciary and Senate Armed Services Committees will be holding hearings on a closely related topic: legal issues surrounding the use of military commissions to try offenses against the law of war. The SASC witness list is star-studded, to include the current Defense Department General Counsel, TJAG of the Navy, and head of the Justice Department’s National Security Division. The House hearing, directed by the Chairman but held under the auspices of the subcommittee on the Constitution, hasn’t yet posted its witness list. The Senate goes Tuesday; the House goes Wednesday. If Michael Jackson coverage permits, should be an interesting few sessions.

Is International Criminal Law “Crowding Out” the Rest of Public International Law?

by Kenneth Anderson

That’s the question underlying my new essay, The Rise of International Criminal Law: Intended and Unintended Consequences, in the European Journal of International Law (Vol. 20, No. 2, June 2009).  And I’m curious as to whether anyone else shares my general feeling that the very success, on important metrics, of international criminal law is tending to swallow, as it were, the rest of public international law.  I’ve had striking conversations informally with a surprising number of scholars and practitioners, in many areas of international law and with otherwise heterogeneous views, over the last couple of years who have expressed some surprise and caution at a sense that international criminal law is coming to be a little bit the tail that wags the dog.  Yet it is not something that seems ever to get talked about, and so maybe I’m just wrong about that, but it is the premise underlying this new essay ….

FP Passport’s Poor Reporting on the ICC (Edited)

by Kevin Jon Heller

I expect sloppy reporting from the traditional media, but not from the normally excellent FP Passport. So I was surprised to read the following in a post by Michael Wilkerson implying that the ICC has accomplished almost nothing:

But with so much scorn and a suspect arrested for only one of its outstanding warrants — former Congo rebel commander Jean-Pierre Bemba Gombo — the ICC needs help if it is to accomplish its mission of discouraging impunity…. To preserve the ICC’s relevance, the trial of Gombo will need to go very well, and some sort of progress will be needed on the Bashir case. What are the odds either of these will happen?

As the page to which Wilkerson links makes clear — and as anyone even passingly acquainted with the ICC’s work knows — Bemba is one of four suspects in custody; the others are Thomas Lubanga Dyilo, Germain Katanga, and Mathieu Ngudjolo Chui from the DRC. (Bahr Idriss Abu Garda from the Sudan voluntarily appeared in request to a summons and is free until his next hearing.)  And, of course, Lubanga’s trial is already underway, whereas Bemba’s case is still at the pre-trial stage.

Wilkerson also references the Pre-Trial Chamber’s rejection of the genocide charges against Bashir without noting that the Chamber recently granted leave to appeal the Article 58 issue. That was obviously a deliberate omission on Wilkerson’s part — intended to make the OTP look as bad as possible — given that the Reuters article to which Wilkerson links specifically mentions the appeal.

FP Passport should really do better. The ICC has enough problems without having to deal with ones invented by journalists.

P.S. I know this sounds nitpicky, but I think it’s revealing that Wilkerson refers to “Gombo.” The ICC — and everyone else — almost always refers to him as “Bemba” or “Bemba Gombo.” Someone who follows the Court closely enough to credibly criticize it would know that.

Problems at the ECCC

by Kevin Jon Heller

Robert Petit, the International Co-Prosecutor, is resigning effective September 1:

In a statement, Robert Petit said he would be stepping down as of 1 September for personal and family reasons.

“It has been the greatest privilege of my career to have the opportunity to bring some justice to the victims of the crimes of the Khmer Rouge,” he said. “I remain convinced that Cambodia’s hopes for a better future lie, in part, on true accountability for crimes.”

Mr. Petit said that the search for his successor will likely wrap up soon.

The Extraordinary Chambers in the Courts of Cambodia (ECCC), set up in 2003 under an agreement between the UN and Cambodia, is tasked with trying senior leaders and those most responsible for serious violations of Cambodian and international law committed during the Khmer Rouge rule.

The tribunal is staffed by a mixture of Cambodian and international employees and judges, and there are two prosecutors: Mr. Petit, who is leaving his post as International Co-Prosecutor, and Chea Leang, who is Cambodian.

Despite Petit’s statement, it seems likely that he is resigning because of his longstanding problems with Chea, who has continually stonewalled Petit’s attempts to consider charging additional suspects and is widely believed to be in the pocket of the Cambodian government:

Accusations gained intensity in the weeks leading up to Tuesday’s hearing. Days before the hearing, the Open Society Justice Initiative lambasted the court for failing to uphold transparency standards, accusing co-prosecutor Chea Leang of lacking political independence after she refused to investigate six Khmer Rouge suspects in addition to the current five. In December, Ms. Chea and co-prosecutor Robert Petit publicly disagreed over whether to add more suspects, with Ms. Chea claiming further investigations could destabilize the country.

I hope the ECCC finds a suitable replacement for Petit.  But it’s clear that the International Co-Prosecutor isn’t the problem.

A Pirate-Hunting Vacation?

by Kenneth Anderson

I don’t know whether one should believe this or not; via Megan McArdle, via Newmajority.com, which links to a news-service I have occasionally read, Avanova, but whose page comes up empty on my browser.  I’m going to ask Eugene Kontorovich what he thinks (delighted to have Eugene guest-blogging with us!).  Is this remotely plausible or urban legend?  So, with all those caveats:

Luxury ocean liners in Russia are offering pirate hunting cruises aboard armed private yachts off the Somali coast.

Wealthy sportsmen pay upwards of $5,000 per day to patrol the most dangerous waters in the world hoping to be attacked by raiders.

The story as it’s written suggests the clients are already engaging Somali pirates with grenade launchers, machine guns and rocket launchers.

An AK-47 assault rifle goes for $8.50 a day, 100 rounds of ammo is $11.50, are they are also protected by a squad of ex-special forces troops.

The yachts travel from Djibouti in Somalia to Mombasa in Kenya, cruising deliberately close to the coast at a speed of just five nautical miles in an attempt to attract the interest of pirates.

Harold Koh on Signing Statements

by Roger Alford

Let me follow up on Julian’s post and add that Harold Koh was equally derisive of signing statements during the Bush Administration. Here’s the transcript and video of an exchange between OLC nominee Dawn Johnsen and State Department Legal Adviser Harold Koh at the 2006 annual meeting of the American Constitution Society.

Just a few choice excerpts that will give you a taste of the general attitude about signing statements as expressed by Koh and Johnsen at that event:

Ms. Johnsen: … [T]he Bush administration’s initial argument typically is not the straightforward constitutional one, but instead that we have to twist the meaning of federal statutes beyond their clear meaning to match a very sweeping view of presidential power. So that will be the first part of our discussion talking about a few examples of what I view as this disregard for the rule of law… Let’s start with an issue that has been very much in the news in recent months: presidential signing statements…. Before the Bush administration, quite an obscure, I believe, document.

Ms. Johnsen: I think it would be useful to make this a little more concrete and actually read from a signing statement issued by President Bush, and I want to ask Harold first to comment on this particular one. So when President Bush signed this into law this is how he said he would enforce the McCain Amendment. “In a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and this commander-in-chief and consistent with the constitutional limitations on the judicial power.” That’s rather innocuous sounding I think on the surface, Harold. What’s the problem with that kind of a signing statement or this particular signing statement?

Mr. Koh: It’s like The New Yorker cartoon where the space aliens are coming out and writing a message in the sky, and two earthlings are looking at it, and one says “I’m not sure, but whatever it means, it can’t be good.” (Laughter) … The president has no line-item veto authority, so he can’t use a signing statement as a line-item veto, and … when there is no veto you can’t override it. You can’t override a signing statement…. So I think that at the end of the day I’m not sure what it means. … [T]he main purpose is to avoid predictability. It would lead to a point where there would be an as-applied constitutional challenge down the road, but whatever it means, it can’t be good.

Ms. Johnsen: Let me follow up with the argument that I often have heard or sometimes have heard in defense of signing statements along the lines that President Bush has used them. It’s better than a veto. Then, it’s actually more respectful of Congress to put into effect as much of the statute as possible, sign it into law, and just put these few limitations out there in the signing statement better than vetoing the whole thing and sending it back to Congress.

MR. Koh: Well, I was talking to an official of the Ford administration, who was telling me that Gerald Ford in his brief period as president did something like 56 vetoes. And the reason was that there was a lot of pork and he was eliminating the pork, so he would just veto it and send it back. I think that just a more upfront approach is if the president actually disagrees with something, he should veto it.

Mr. Koh: We don’t need graffiti on the McCain Amendment. It’s clear. Once it’s there, don’t add anything. If you’re adding anything, you’re trying to modify its effect. Why are you trying to modify its effect?

Rwanda Channels Oliver Wendell Holmes

by Kevin Jon Heller

Apparently, that bastion of freedom and human rights didn’t get the memo that Holmes’ infamous comment in Buck v. Bell — that “three generations of imbeciles are enough” — isn’t exactly viewed as a shining moment in US constitutional jurisprudence:

Rwanda is being urged to drop a draft law which would forcibly sterilise people who are mentally disabled.

US-based campaign group Human Rights Watch said the proposed law was deeply flawed and violated the government’s obligation to uphold human rights.

It also requires people to have an HIV test before getting married.

“Provisions in the current bill that increase stigma, rely on coercion and deny… reproductive rights should be removed,” HRW’s Joe Amon said.

Forced sterilisation is regarded as a crime against humanity by the Rome Statute of the International Criminal Court.

This is, of course, the government that expresses shock and outrage at the ICTR’s unwillingness to transfer cases to it because of fears that defendants will not receive fair trials.  Whatever could have given the Tribunal that idea?

Is Obama Really Hypocritical on Signing Statements? Yup.

by Julian Ku

Was I unfair in calling Barack Obama “hypocritical” in issuing his (otherwise sensible and constitutional) signing statements last week?  Hypocrisy is a strong charge.  On the other hand, Obama explicitly denounced the “theory of George Bush that he can make laws as he is going along” by using signing statements and then flatly promised not to use any such statements when in office. See for yourself. 


  

So maybe hypocrite is not so hyperbolic in this context.  Is there any defense for Obama?  Not really.