Archive for
October, 2009

Hillary Clinton’s Interesting Take on the Afghan Runoff

by Kevin Jon Heller

Clinton seems like she’s been a relatively competent Secretary of State, but her take on the news that Abdullah Abdullah will not participate in Afghanistan’s runoff election is truly priceless:

Secretary of State Hillary Rodham Clinton, traveling in Abu Dhabi, gave the administration’s only comment. “We see that happen in our own country where, for whatever combination of reasons, one of the candidates decides not to go forward,” she said. “I don’t think it has anything to do with the legitimacy of the election. It’s a personal choice which may or may not be made.”

Right — there is no difference between dropping out of a race to spend more time with one’s family and dropping out because the incumbent committed massive fraud and refuses to reform the system to prevent massive fraud in the future.

I realize that the Obama administration is far more interested in ensuring that Karzai remains an American ally in the War on Terror than it is in promoting democracy in Afghanistan, but couldn’t Clinton at least come up with a less patently ridiculous explanation for Abdullah’s non-participation?

Congratulations to Lee Feinstein

by Kenneth Anderson

I can’t make the swearing-in on account of classes, but I wanted to offer my public congratulations to Lee Feinstein, who is being sworn in tomorrow at DOS as US Ambassador to Poland.  Lee is an old friend, someone who combines first rate brains with outstanding judgment, and he is a great pick to represent the United States to an important European ally.

An (Unbiased) Perspective on Giving Dr. Karadzic More Time

by Kevin Jon Heller

Having been pilloried from all sides about my insistence that Dr. Karadzic should be given more time to prepare for trial, it’s important to note that I am not the only one who thinks that.  Bogdan Ivanisevic, who works for the International Center for Transitional Justice — a group that can hardly be accused of being soft on Dr. Karadzic — also believes that the Tribunal should give him more time:

If the trial chamber now decides Karadzic’s claims have some weight, they will feel justified in giving Karadzic more time to extend time for Karadzic’s preparation and will not assign a counsel.

They would be wise meanwhile to simultaneously name a “stand-by counsel” who can take over from the accused if his right to self-representation is terminated eventually.

This scenario would require some creativity on the part of the judges in terms of explaining why they had ignored Karadzic’s claims a few weeks earlier.

Any time extension should be modest, so as to satisfy the requirement that the trial should be expeditious. A limited time frame would also make it a less of all all-out propaganda victory for Karadzic, assuming this was one of his goals.

At the same time, the allocated time frame should be generous enough to assure reasonable observers that the accused was given sufficient time to prepare.

If Karadzic does not appear in the courtroom after this additional time, the court should change the status of the stand-by counsel into that of a court assigned counsel and let him represent the defence.

What if Karadzic and his witnesses then boycott the trial in protest against the assigned counsel? Milosevic and Seselj did that, in similar situations during their trials.

This is where the perception of the fairness comes in again. Following an extension to the time limit for Karadzic’s preparation, few observers would take his claims of unfair treatment seriously.

Importantly, the example of self-representation in the Milosevic and Seselj trials may now turn against the accused. Most observers feel the tribunal was too magnanimous in handling those cases – to its own detriment and that of the victims.

Few would sympathise with Karadzic if he took the same path as Milosevic and Seselj, and if he decided after being given more time for preparation, to boycott the trial altogether.

I don’t agree that the Tribunal should appoint stand-by counsel, given that Dr. Karadzic was nothing but professional and cooperative with the Tribunal until the Appeals Chamber set a trial date that was determined by the Completion Strategy, not by the requirements of a fair trial.  But I agree that giving Dr. Karadzic the opportunity to prove that he is genuinely concerned about being adequately prepared, not simply grandstanding, would do wonders for the trial’s ultimate legitimacy.

Unfortunately, the Trial Chamber seems completely unwilling to even sit down with Dr. Karadzic to see if a compromise can be reached.  That doesn’t make sense, given that any decent appointed counsel will ask for at least six months to prepare for trial.  The only explanation I can see is that the Trial Chamber thinks it can find a barrister who — motivated by the desire for publicity, not concern for Dr. Karadzic’s rights — will be willing to begin the trial without being adequately prepared for it.  So the upshot will be a trial with an uncooperative defendant and an unprepared attorney.  That is an unseemly possibility, to say the least.

National Pro Bono Week

by Kenneth Anderson

H/T to Orin Kerr for pointing this out, but this week is national pro bono week.  Being an international law blog, I wanted to invite readers to mention any international or transnational pro bono work they do.

UN Special Rapporteur on Extrajudicial Execution Criticizes US Over Drone Attacks

by Kenneth Anderson

Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks.  Philip – a friend and well known to many OJ readers as an NYU law professor – is the UN special rapporteur on extrajudicial execution.  (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)

President Kagame Discusses Gacaca Courts

by Roger Alford

In my public international law class today I taught the material from the Dunoff, Ratner and Wippman book on the Rwandan genocide and recourse to the gacaca courts. The readings focus on Amnesty International’s criticism of the gacaca system as failing to meet international minimum standards of due process for criminal defendants. Unfortunately, the book does not attempt to explain the gacaca system from the Rwandan perspective.

I thought it was therefore interesting to note that Rwandan President Paul Kagame recently had a short discussion with Pastor Rick Warren on the use of gacaca courts at a Saddleback Civil Forum held on September 25, 2009. If you go to the 47th minute you can pick up the discussion, which is well worth ten or fifteen minutes of your time. In particular, Kagame explains (1) the role of truth-telling in the gacaca system (49th minute); (2) the nexus between reconciliation and justice and the history of gacaca courts (51st minute and 1:20 minute); (3) the process of how gacaca courts function (54th minute); (4) the problems with attempting to use traditional domestic courts (56th minute); (5) the method of punishment in gacaca courts (58th minute); and (6) the role of government in promoting reconciliation; (1:00 minute).

Today in class my students read the Amnesty International excerpt from the book, then listened to Kagame’s discussion on You Tube, and then we opened up the class for discussion, which was quite lively and interesting. In light of the Amnesty report and Kagame’s discussion, several students remained strongly opposed to the gacaca system, while most appeared to think that it made good sense to utilize this approach in the Rwandan context.

Bashir Won’t Meet with Gration

by Kevin Jon Heller

What’s worse than giving cookies, gold stars and smiley faces to a murderous tyrant?  Being snubbed by said murderous tyrant, thereby losing the chance to give them.

Maybe Scott Gration can give the cookies to the Sri Lankan government instead.  I hear their feelings are being hurt by all the mean things said about them, too.

Where Is Rule 82 bis?

by Kevin Jon Heller

As trial-watchers know, Judge Kwon implied today that he will impose counsel on Dr. Karadzic next week if he continues to boycott the trial.  It’s worth noting, therefore, that nothing in the ICTY Statute or the ICTY Rules of Procedure permit the Trial Chamber to hold the trial in Dr. Karadzic’s absence, even if he is represented by counsel.  The ICTR, by contrast, adopted a rule to deal with boycotting defendants in 2003, during Jean-Bosco Barayagwiza’s trial:

Rule 82 bis: Trial in the Absence of Accused

If an accused refuses to appear before the Trial Chamber for trial, the Chamber may order that the trial proceed in the absence of the accused for so long as his refusal persists, provided that the Trial Chamber is satisfied that:

(i) the accused has made his initial appearance under Rule 62;
(ii) the Registrar has duly notified the accused that he is required to be present for trial;
(iii) the interests of the accused are represented by counsel.

The ICTR invoked Rule 82 bis (which is also part of the SCSL’s Rules) to justify holding the trial in Barayagwiza’s absence — and indeed, he never appeared at his multi-year trial.  The ICTR’s decision to apply the rule retroactively was itself problematic, but at least the Tribunal formally adopted a rule permitting trial in absentia.  The ICTY has not adopted a similar rule; instead, the judges have simply bestowed upon themselves the same authority that Rule 82 bis gives their ICTR colleagues.

Is that a defensible move?  Perhaps.  But it’s still troubling that the ICTY has no trouble limiting a right specifically guaranteed by its Statute, the right to be present during trial, without even bothering to adopt a rule that justifies doing so.

That said, we should not be surprised.  As Darryl Robinson has documented in a magisterial recent article, such blatant ends-driven reasoning — ignoring the text of the ICTY Statute and Rules when the judges believe that effective prosecution requires it (see, e.g., JCE) — has been the hallmark of ICTY jurisprudence from the beginning.

McDonald’s Pulls Out of Iceland

by Kenneth Anderson

Just when you thought the global financial crisis was subsiding, with returns to growth in most leading economies, including the US, Europe, China, etc., we have a counter-indicator.  The Financial Times reports today that McDonald’s is closing its three outlets in Iceland, citing the difficult economic environment …

The UN Human Rights Council Does Investigate Places Other Than Israel….Like New York

by Julian Ku

Raquel Rolnki

Raquel Rolnik

In a further display of the UN Human Rights Council’s sense of how to efficiently allocate its limited resources, its “special rapporteur on the right to adequate housing” has decided to conduct her next investigation in the United States, and in New York City in particular.  (h/t the Corner). I’m sure that New York housing is inadequate in some ways, but is it really the most effective place to allocate the special rapporteur’s efforts?

There’s also a strange legal problem: what is the legal obligation the United States is said to be violating?  Here is an excerpt of the original Council (then Commission) resolution creating the special rapporteur’s mandate.

To appoint, for a period of three years, a special rapporteur whose mandate will focus on adequate housing as a component of the right to an adequate standard of living, as reflected in article 25, paragraph 1, of the Universal Declaration of Human Rights, article 11, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights, and article 27, paragraph 3, of the Convention on the Rights of the Child, and on the right to non-discrimination as reflected in article 14, paragraph 2 (h) of the Convention on the Elimination of All Forms of Discrimination against Women, and article 5 (e) of the International Convention on the Elimination of All Forms of Racial Discrimination;

Uh, the U.S. is not party to any of the treaties mentioned here, and the UN Declaration of Human Rights, art. 25, para. 1 has never been considered binding.  So to sum up:  the UN Human Rights Council’s special rapporteur on adequate housing is going to spend her time on a country which is unlikely to be in the top ten places with lack of adequate housing, and which in any event, is not a party to any of the treaties which form her mandate.  And people wonder why the UN Human Rights Council is unpopular?

The ATS and the USG Government Response, a Query

by Kenneth Anderson

An additional puzzle about the Alien Tort Statute is that there seems to be no satisfactory account, so far as I know, of the US government response to ATS cases.

Sometimes the US government responds with a statement of interest; sometimes it does not.  Even when it does offer a statement of interest, my anecdotal impression (if there was data collected, I’d be very interested) is that the US government often responds late in the proceedings.  So far as I can tell – indeed, I’ve never heard anyone contradict this – there is very little about the USG response in ATS proceedings to suggest that it seeks to protect executive power or authority or authoritative expertise in pronouncing on international law or the foreign policy interests of the executive in ensuring, as a matter of principle, that these matters remain with the executive and not the courts.  There is little if anything in USG behavior to suggest that successive administrations since Filartiga have taken a stand on principle of seeking to rein in or otherwise narrow the ambit of the courts in these matters.  That seems to be true across decades and multiple administrations of each party.  I find this puzzling …

Correcting a Statement I Made on the BBC

by Kevin Jon Heller

I just finished giving an interview about the Karadzic case to the BBC’s World Today program.  It was, to say the least, a shocking experience.  I assumed that they wanted to ask about Dr. Karadzic’s decision to boycott the beginning of the trial — why he made it, what it means for the trial, etc.  My bad!  Instead, the first question was — literally — “why doesn’t Dr. Karadzic have the courage to attend the trial?”  And the last question was — also literally — “what evidence does Dr. Karadzic have that he is not guilty”? So instead of explaining why Dr. Karadzic feels he is not prepared to begin trial, over which reasonable people can certainly disagree, I had to spend my entire time on the air explaining the presumption of innocence, the importance of which should certainly be beyond dispute at this point.  It was a very disappointing interview — I really, if naively, expected better of the BBC.  I will think long and hard before I speak to them again.

That said, I wanted to correct a misstatement I made during the interview.  I claimed, in my shock at the questions, that the indictment does not allege that Dr. Karadzic is responsible for failing to prevent and punish the crimes of his subordinates.  He is, of course, charged with command responsibility under Art. 7(3) of the ICTY Statute.  I regret the error, and I apologize to my listeners for making it.

P.S. It is worth noting, regarding a debate I’ve been having with one of our readers about whether I should be referring to Dr. Karadzic as “Dr.,” that the BBC referred to him as Dr. Karadzic throughout their report.

The Link Between Enforcing Judgments and Denial of Justice Claims?

by Roger Alford

My colleague Trey Childress has a nice summary of the recent decision by a federal court in Florida in Osorio v. Dole Food Company to refuse to enforce a $97 million Nicaraguan judgment. Here’s the key excerpt of the decision:

“the evidence before the Court is that the judgment in this case did not arise out of proceedings that comported with the international concept of due process. It arose out of proceedings that the Nicaraguan trial court did not have jurisdiction to conduct. During those proceedings, the court applied a law that unfairly discriminates against a handful of foreign defendants with extraordinary procedures and presumptions found nowhere else in Nicaraguan law. Both the substantive law under which this case was tried, Special Law 364, and the Judgment itself, purport to establish facts that do not, and cannot, exist in reality. As a result, the law under which this case was tried stripped Defendants of their basic right in any adversarial proceeding to produce evidence in their favor and rebut the plaintiffs’ claims. Finally, the judgment was rendered under a system in which political strongmen exert their control over a weak and corrupt judiciary, such that Nicaragua does not possess a ‘system of jurisprudence likely to secure an impartial administration of justice.’”

As Childress notes, the decision is important for three reasons:

This case is interesting on multiple levels. First, the district court applied an “international concept of due process.” This standard was seen to be in concert with, but different than, US notions of due process. Second, the court found that Nicaragua does not have impartial tribunals. In so doing, the court relied not only on US State Department pronouncements but also on expert testimony regarding what law is like on the ground in Nicaragua “on paper and in practice.” Finally, this case is perhaps most interesting because the general understanding is that it is hard to resist enforcement. This case shows that US courts, if presented with appropriate evidence, are willing to ascertain the validity of foreign judgments, especially in countries facing political and social turmoil that may negatively impact the administration of justice in those countries.

But the case also raises a host of issues on the nexus between enforcing judgments and pursing denial of justice claims in investment arbitration….

Theories of Corporate Liability in the ATS, a Quick List

by Kenneth Anderson

If I were to sit down and sketch out in a single sentence or two each the current approaches (“theories” is way too strong for what I mean here) to finding corporate liability in the ATS, what would they be?  I give it a shot as bullet points below; I welcome any additions, if you were trying to give a short but reasonably comprehensive list of litigation approaches in favor of finding the possibility of corporate liability.

One thing I (can’t speak for others) took away from the Harvard meeting, as well as discussions with some litigators in the area, is that the question is not settled in US courts.  Sosa left it open in footnote 20, and although I would have described the leading circuit cases as having accepted the idea, I came away from various discussions with a sense that it is more open to a change in direction than I thought – and that, even absent a new Supreme Court ruling on the matter.  My sense after the latest Talisman was that US courts had more or less accepted corporate liability under the ATS, signing on to an accumulation of precedents without signing onto a theory of why.  Reining in ATS liability, insofar as they were inclined to do it, would come either as limits on what substantive acts would count or else, as in the 2nd Circuit’s latest Talisman ruling, as limits on secondary liability.  But I came away from recent discussions with an inchoate sense – not a clear set of reasons – that the corporate liability issue itself was not so settled as I might have thought.

Whether that is so or not, it made me think that having some bullet point list in my head of the main lines of argument in favor of corporate liability was a useful exercise.  Feel free to add any more you like in the comments.  The reason I stress here arguments in favor is that, as someone who thinks it is not the case, it is harder for me to think of the arguments for corporate liability.  The affirmative arguments against corporate liability seem to be mostly variants of saying, the ATS requires as a threshold matter that there be a violation of international law.  Corporations are not things that are capable of violating international law, and there can’t be a violation without a violator upon which law imposes liability; hence no violation of international law and no US action in tort.

The principal way of complicating this as an argument against corporate liability is to say, in addition:  There are two hurdles to finding an international law violation – two axes, if you like.  You have to make the move from individual to corporate liability.  Separate and independently, you have to make the move from criminal law to civil law.  Neither one of these is well founded in international law, and you have to satisfy each in order to show an international law violation.  (Represented as a diagram, the two axes produce four quadrants and it’s fun to frame it that way, but I’ve not managed to figure out how to do graphs like that on Wordpress.)  One might disagree with those axes, of course, but they are what I think I see in defense arguments (including my own expert declaration in the Agent Orange case) and defense-side expert statements, at least disaggregating a bit.  There is then a long debate over what to take as constituting “international law” and evidence thereof, but leave that aside.  That said as the basis of anti-corporate liability arguments, what’s the summary list of pro-corporate liability arguments? ….

The Surprising Mbeki Report (Updated)

by Kevin Jon Heller

I have to admit, when I first heard about the Mbeki Panel, I was skeptical.  I assumed that the Panel’s report would be a typical apologia for the Sudanese government’s crimes, criticizing the ICC and defending the African Union’s promise not to surrender Bashir to the Court.

It looks like I owe Mbeki an apology.  The recommendation section of the report is now available — and Bashir, the Sudanese government, and the AU are going to be very disappointed.  As the Sudan Tribune indicated a couple of days ago, the report does indeed implicitly support the ICC’s efforts to bring Bashir, Haroun, and Kushayb to justice.  Here is what the report says:

The International Criminal Court is a court of last resort, which complements the national judicial systems. It is also a court of limited capacity. This means that even when deploying its full resources, it can only deal with a few individuals out of any situation of which it is seized. It follows that where widespread crimes have been committed, the overwhelming majority of potential criminal cases must be dealt with by the national system. This is simply a reflection of the functional limitations of the ICC. It is important that all stakeholders should realize this, and therefore focus on the vital importance of strengthening national legal systems. The principle of complementarity under the Rome Statute in any event gives precedence to national systems, even when a situation has been referred by the Security Council. This means that the ICC is obliged to take into consideration the fact that a State has taken or is taking effective justice measures to deal with relevant crimes. Any credible measures adopted in a national system would also be of interest to the Security Council in reaching any decisions with respect to the situation in Darfur and the Sudan more generally. The role of international justice more generally should be on the agenda of the Global Political Agreement.

Notice what is absent from this paragraph of the recommendations: any reference to, much less approval of, the AU’s promise not to surrender Bashir.  The section of the recommendations on the AU’s role in the Sudan is also silent concerning that promise. That’s shocking — and very encouraging…

Is it Time to End the US-Iran Claims Tribunal?

by Duncan Hollis

Yes, says John Bellinger in Thursday’s Washington Post:

While it has done important work, the tribunal has largely outlived its utility for both sides — and the Obama administration could face a significant international legal challenge if the tribunal orders the United States to make large monetary payments to the Iranian government. . . .

When it was set up under the Algiers Accords, the tribunal was expected to resolve all outstanding claims in a few years. It has labored for nearly three decades, conducting more than 300 hearings and issuing more than 20,000 orders. The tribunal has made 600 awards resolving claims by nationals of the two countries, or by one government against the other, including more than $2.5 billion in awards to U.S. nationals or the U.S. government and roughly $1 billion to the Iranian government. It is still working on some of the most complicated cases: disputes relating to contracts for sales and services of military equipment produced by U.S. companies for Iran before 1979. . . .

In July, the tribunal dismissed, 5 to 4, Iran’s claim for $2.2 billion in compensation for military equipment that had been ordered by Shah Mohammad Reza Pahlavi but that the U.S. government had refused to allow U.S. companies to deliver after the hostage crisis. Had the tribunal ordered Washington to pay Iran even a fraction of what it had sought, the administration would have been forced to choose between complying with U.S. obligations under the Algiers Accords, and thus paying millions of dollars (or more) to a government that has been supporting terrorism and secretly building uranium enrichment facilities, or ignoring an international court.

But the Obama administration still faces a threat. The tribunal left the door open for Iran to relitigate aspects of this dispute, and Tehran still has claims worth billions of dollars in other cases. . . .

The tentative deal announced Wednesday is expected to buy time to establish a diplomatic solution to the impasse over Iran’s nuclear ambitions. Rather than continuing to hope for the best, the Obama administration should add the future of the tribunal and remaining bilateral claims to the list of issues to be discussed with Iran. U.S. negotiators might suggest that the tribunal be dissolved, with outstanding Iranian claims withdrawn in exchange for U.S. payment for enrichment of Iranian uranium outside of Iran. Issues concerning diplomatic properties of both governments, which have been the subject of claims before the tribunal, could also be resolved, paving the way for the gradual resumption of diplomatic ties.

I’m generally a fan of the US-Iran Claims Tribunal (and, for the record, it’s probably worth noting that I have worked on behalf of the United States in several of the Tribunal’s cases).  Still, I think Bellinger’s idea is worthy of serious consideration.  Like Bellinger, I’d always understood the real risk to U.S. compliance with the Algiers Accords would arrive whenever the Court finally pronounces on how much the United States owes Iran for the failure to deliver military equipment for which Iran had already paid.  Indeed, although Iran’s own intransigence certainly helps explain why the Tribunal has lasted three decades, it’s not like the United States has eagerly sought an early resolution of all of Iran’s outstanding claims because of the political problem that Bellinger identifies in getting Congress to pay any major awards to Iran. 

Thus, if it’s possible to wind-up the Tribunal as part of any nuclear-related deal between the United States and Iran, wouldn’t it make sense to do so?  Or, are there reasons to maintain the Tribunal independent of the political risk of a major award against the United States at some not-to-distant point in the future?  For example, as the recent nuclear talks indicate, the Tribunal provides a forum for discussion that the United States might want to maintain in lieu of having to go to more ad hoc interactions with all the attendant political questions about “preconditions” for such talks, etc.  Maybe the United States wants (needs?) this forum to remain in place, especially if questions arise in Iran’s conclusion or implementation of the tentative deal currently on the table.  What do readers think?  Is it time to say good-bye to the U.S.-Iran Claims Tribunal?

The Teabagger’s Guide to History

by Kevin Jon Heller

From an email urging civil disobedience to the [communist] [fascist] [socialist] Obama administration:

“The jews KNEW that they were the target of Hitler–this didn’t happen over night, they had PLENTY of warning–and they didn’t DO anything,” Dietz wrote. “They went like sheep quietly to their slaughter–they did not fight.” Dietz concluded: “WE NEED A REVOLUTION.”

I think someone needs to add Uprising or Defiance to her Netflix queue…

REVISED — Military Commissions, Round 3

by Deborah Pearlstein

Cross-posted at Balkinization

Here follows a revised version of the blog I posted earlier today. It turns out the final version of the legislation that passed the House was largely untouched after all.  The full text of the mammoth Defense Authorization Bill in which the military commissions legislation is included is available here; the military commissions provisions are found beginning at p. 979.   Serves me right for trusting any old email attachment headed “Military Commission Legislation as Passed.” My sincere apologies to readers.

The revised take is somewhat more favorable: Unlike Congress’ incoherent efforts to prohibit the transfer of Guantanamo detainees to the United States for trial (which for the moment appear to have failed), and Lindsay Graham’s (similarly incoherent and now unsuccessful) efforts to require that certain detainees be tried in military commissions even if they could be prosecuted in federal criminal court (the opposite of the way the Supreme Court has traditionally understood military courts of necessity to work), the new military commissions legislation remains a mixed bag. It has some good changes, some not so good, and some provisions whose impact will have to be determined in practice.

Bilder on the Legal Regime for Mining the Moon

by Chris Borgen

Following-up on my recent post on commercial space ventures, I note that Richard Bilder has a new article posted to SSRN: A Legal Regime for the Mining of Helium-3 on the Moon: U.S. Policy Options. I know that “helium-3” might sound like the name of some sci-fi show like “Deep Space 9,”  but it is really a great hope for future energy needs. Bilder’s abstract explains:

This article addresses questions of U.S. international legal and space policy arising from current proposals of the U.S., Russia, China and India to establish national bases on the Moon, in part with the purpose of mining and bringing to Earth Helium-3 (He-3). He-3 is an isotope of helium that is available in quantity only on the Moon and could, as an ideal fuel for nuclear fusion reactors, furnish humanity a virtually unlimited source of safe, non-polluting energy for centuries to come. For example, it is estimated that 40 tons of liquefied He-3 brought from the Moon to the Earth – about the amount that could comfortably fit in the cargo bays of two of the existing U.S. space shuttles – would provide sufficient fuel for He-3-based fusion reactors to meet the full electrical needs of the U.S. – or a quarter of the entire world’s electrical needs – for an entire year. However, there is as yet no international consensus on whether, or how, any nation or private enterprise can exploit or acquire title to He-3 or other lunar resources. The article calls attention to what may become a “race to the Moon” to obtain He-3 and discusses: (1) the technical and economic prospects for the development of He-3-based energy; (2) the present legal situation concerning the exploitation of lunar resources such as He-3; and (3) policy options for the U.S. regarding the establishment of an international legal regime capable of avoiding conflict in the exploitation of He-3 and other lunar resources and facilitating the broad scale development of He-3-based energy.

In addition to the idea of using helium-3  for power on earth it is also one of the most commonly posited potential fuel sources for crewed spacecraft to the asteroid belt and outer planets. This would open the belt up to the possibility of asteroid mining (if that turns out to be economically feasible) as well as crewed scientific exploration of the outer solar system. Bilder sets out various options including ratifying the present Moon Agreement, establishing an international lunar resource regime outside of the framework of the Moon Agreement, and setting up either an international organization or some other enterprise for mining lunar helium-3.

Underlying this is his argument that significant public or private investment in helium-3 mining would be predicated on a stable legal regime concerning the property and ownership issues of mined lunar resources. Thus, he argues, it is in the U.S.’s interest to take part in the construction of a lunar resource regime (be it treaty, international organization, or other policy option) sooner, rather than later.

For anyone interested in cutting edge issues in space law, this article is a great place to start.

Will the Mbeki Report Implicitly Endorse the ICC? (Updated)

by Kevin Jon Heller

I will remain agnostic until I can read the actual report, but a new article in the Sudan Tribune seems encouraging:

The African Union (AU) panel that was tasked with balancing peace and accountability in Darfur has made an implicit endorsement of the International Criminal Court (ICC) prosecutions despite unfavorable disposition to the issue by African leaders and also called for a wide range of changes to Sudanese law and criminal law system.


Many critics and rebel groups have accused the panel of seeking to circumvent the work of the ICC particularly after the AU issued a resolution last July instructing its members not to cooperate with the Hague tribunal in apprehending Bashir.

But Mbeki appeared to distance himself from the position of the pan-African body in his report seen by Sudan Tribune.

“The ICC is a ‘court of last resort’ as well as of limited practical capacity: it can only target a few people for prosecution. Indeed, conscious of its limited resources, the Prosecutor of the ICC has adopted a policy of focusing only on those few who he believes bear the greatest responsibility for the most serious crimes that have been committed in each situation” the report says.

“This prosecutorial policy inevitably leaves the overwhelming majority of individuals outside of the ICC system and still needing to answer for crimes they might have committed…. justice from the ICC, exclusively, would therefore leave impunity for the vast majority of offenders in Darfur, including virtually all direct perpetrators of the offences”.

The findings of the mission indicate an approach where the ICC work would now be limited to the six individuals already charged by the court with an alternative mechanism to try the remaining individuals.

If that is indeed the Mbeki Report’s conclusion, it’s a very intelligent one.  The ICC does not have the resources to prosecute more than a small handful of individuals in any situation; alternative justice mechanisms will have to address lower-level perpetrators.  The question is what those alternative mechanisms would be.  According to the Sudan Tribune, the Mbeki Report is not particularly convinced that Sudan’s own court system is up to the task — much less able to divest the ICC of jurisdiction over Bashir and the others pursuant to the principle of complementarity…

Symposium on Religious Extremism and Terrorism

by Chris Borgen

Tomorrow (Friday, October 23rd), the S.J. Quinney College of Law of the University of Utah will host a symposium entitled Freedom from Religion: Rights and National Security. You can watch the symposium online via a link on this page. Here’s the brief description:

Based on Professor Amos N. Guiora’s new book, Freedom from Religion: Rights and National Security (Oxford University Press, 2009), this Symposium will explore the limits of tolerance of religious extremism in five countries and its impact on the current terrorism threat our world faces. By drawing on varied perspectives and disciplines — religion, cognitive science, history, philosophy, and law — the panelists will challenge conventional wisdom by asking whether the threat of future terrorism might be lessened by government’s curtailing religious extremism.

The agenda is as follows (be sure to adjust for your timezone!):

8:30 AM – 8:45 AM Welcoming Remarks: Professor Terry Kogan, Moderator
8:45 AM – 9:15 AM Presentation of Book: Professor Amos Guiora
9:15 AM – 9:40 AM First Amendment Response: Professor Scott Matheson
9:40 AM – 10:05 AM Religious Studies Response: Professor William Deal
10:05 AM – 10:30 AM Religious Practitioner’s Response: Pastor John Lentz
10:30 AM – 11:00 AM Audience Written Questions/E-mails/Tweets Posed by Moderator to Panelists

The U.S. East Coast times would be  10:30 am – 1:00 pm.

Dr. Karadzic’s Letter to the ICTY

by Kevin Jon Heller

As has been widely reported, Dr. Karadzic intends to boycott the start of his trial to protest the Tribunal’s refusal to give him the time he needs to adequately prepare for trial.  I don’t know when the letter he submitted to the Tribunal will appear on the ICTY website, so I have made it available here:


Dr. Karadzic’s decision is deeply regrettable — but it’s also not difficult to understand, given the Tribunal’s constant efforts to undermine his ability to defend himself. I will be curious to see how the media covers the boycott.  My guess is that, with the exception of the always-excellent Institute for War & Peace Reporting and the New York Times, the dominant narrative will be that Dr. Karadzic has proven himself to be another Milosevic — a narrative that will conveniently ignore the fact that he has been nothing but cooperative with the Tribunal to date.

P.S. In case there are still readers out there who are unaware of it, I am one of Dr. Karadzic’s legal advisers.  So, as always, take what I say about the case with the requisite grain of salt.

The Five Most Important Treaties Ever

by Duncan Hollis

Here’s a fun game everyone can play.  Take five minutes (and no more than five minutes) to list the five most important treaties ever.  By “important” I mean in terms of historical significance–i.e., their impact on human history.  Thus, despite the views of some, focus on what the treaty did (or did not) do, rather than its potential.  This, I think, takes more recent aspirants (e.g., the Rome Statute or whatever succeeds the Kyoto Protocol) off the list.  And by “ever” I mean to capture a treaty’s impact through a longer historical lens than simply whatever treaty has been the most important to the last decade, or even the latter half of the twentieth century.   My own list comes after the jump.

Never Mind Balloon Boy, Here’s the Space Jockeys

by Chris Borgen

Back in July, I had written a post about current issues in governmental space programs and I promised a follow-up on the private space industry. Well, that post never materialized. However, in lieu of that post I want to point to this post by author Brenda Cooper on Futurismic that has a quick and fun tour of the major U.S. players among the new space start-ups. She describes (and has links to) a few of the companies, as well as the new “spaceports,” and also has a link to the Rocket Racing League’s promo video that really should not be missed. By the way, Futurismic also had a post from around the time of the Apollo moon landing anniversary looking at the current state of private (and public) space programs.

The international legal issues generated by such these new space start-ups are as wide-ranging as the business models, which encompass topics such as private satellite launches, space tourismprivate space stations/ hotels in space, energy generation, and moon landings. As more companies move into these areas, the basic framework of the Outer Space Treaty will probably need to be supplemented. It will e especially interesting to see how much of these relations among new space ventures will be circumscribed by new government regulations and international agreements or rather be defined primarily by contractual provisions of an industry that may grow and change faster than the regulators are able to keep up.

And, as incredible as the ventures listed above are, my favorite example is the story of some other balloon boys and girls, four Spanish teenagers and their high school teacher, who used a helium balloon to loft a camera 20 miles to the upper reaches of the atmosphere. (Check out these pictures.) Total cost: about 200 bucks. (Perhaps with some refinements this could provide super-cheap image intel.) When you have teen-aged hobbyists sending payloads as high as NASA research balloons, then you know the regulatory environment is about to undergo a basic change. Overall, the rise of private space ventures is part of the story of how individuals and other substate actors are pushing into areas that before could only be contemplated by governments. 

Like I wrote back in July: it’s a fun time to be a space lawyer.

YJIL Symposium – Response to Elena Baylis

by Tara Melish

Please let me thank Elena again for taking the time to respond to my piece, and for her always insightful, probing, and challenging questions. Let me attempt to respond sequentially to each of the five great points she raises.

1. Elena begins by querying whether the “thicker” interest-based description I offer to explain the recent increase in U.S. human rights engagement in fact signals “anything more than an anthropological point about differing cultures and roles of the U.S. Congress and the Office of the Legal Advisor to the State Department?” That is, isn’t it plausible that increased engagement is simply “the result of Congress having ratified a number of treaties with reporting obligations, and authority for fulfilling those obligations having been turned over to the Legal Advisor’s Office”?

There are two distinct responses to this important question. First, it is useful to underscore that my article does not in fact make any claim about the cultures and roles of the U.S. Congress and the Office of the Legal Advisor. To the contrary, the crux of my argument is that these democratic policymaking institutions—and U.S. human rights policy as a whole, which is not determined exclusively by either body—are best understood as having no culturally fixed or structurally predetermined approach to engagement, either at the stage of human rights treaty ratification or post-ratification treaty body engagement. (This is precisely what distinguishes an interest-management narrative from an exceptionalist one.) Rather, U.S. policy institutions are better understood as mediating bodies that seek to maximally accommodate the competing (and constantly evolving) interests exerted on them both at the foreign-policy level (from realists and institutionalists) and at the domestic-policy level (from insulationists and incorporationists). Such accommodation is constrained, nevertheless, by a core set of sovereignty and subsidiarity-based mediating techniques that legally anchor U.S. human rights policy and determine its outer boundaries. Any “anthropological” point I make about the content of U.S. human rights policy is, then, not directed to these institutions, but rather to the shifting motivations of the U.S. interest groups which seek to influence them (both from within and from without). It is the changing strategies of these interest groups as they respond to new political conditions and shifting alliances, and how those strategies intersect with U.S. mediating techniques, I argue, that are determinative in understanding the evolving, asymmetric contours of U.S. human rights policy.

YJIL Symposium – Response to Professor Melish

by Elena Baylis

Thanks to Opinio Juris and to YJIL for giving me the opportunity to comment on Tara Melish’s article, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies. I have long been a fan of Tara’s work, and so it’s a pleasure to have the chance to respond to her new piece.

In this article, Tara persuasively argues for two fundamental shifts in our understanding of the “U.S. human rights paradox.” She claims:

1. That the US position on international human rights is better explained as the balancing point of the competing demands of interest groups, reached through iterative political interactions, than as the result of static exceptionalism and/or cultural preferences; and,

2. That “incorporationists” (advocates of domestic incorporation of international human rights) have made several fundamental errors in confronting opposition to human rights treaties. They have disengaged too much from the national political process, they have mistaken rhetoric for reality in responding to opponents’ rights-absolutist positions, and they have mistaken the means for the ends by opposing non-self-execution declarations and other RUDs. Because the US human rights position is the result of a dynamic political process, incorporationists could influence that process by altering their strategy to promote domestic democratic deliberation on the national and local levels.

With these arguments, Tara proposes an end run around some intractable sticking points in the debate over the U.S. human rights position.

On the first point, I am entirely sympathetic to Tara’s approach of using a thick description of process as the basis for her theoretical claims, but I have two questions about the factual foundation and its analytic connection to those conclusions.

My Thoughts on the (Robert) Bernstein Editorial (Slightly Updated)

by Kevin Jon Heller

Jonathan Adler, a blogger at The Volokh Conspiracy, has asked me what I think about the editorial that Robert Bernstein, the founder of Human Rights Watch, published yesterday in the New York Times criticizing the organization’s coverage of Israel.  My basic response: although I disagree with much of what Bernstein has to say, his criticisms must give anyone pause, because he obviously cares deeply about the organization.

Before I turn to what I disagree with, it’s interesting to note that Bernstein seems to acknowledge that Israel has in the past violated the laws of war — a marked contrast to David Bernstein and NGO Monitor, which assume as a matter of faith that Israel can do no wrong.  That, at least, is my take on his statement, “[t]o be sure, even victims of aggression are bound by the laws of war and must do their utmost to minimize civilian casualties. Nevertheless, there is a difference between wrongs committed in self-defense and those perpetrated intentionally.”  I think it is far from self-evident that Israel’s wrongs have all been committed in self-defense, and we cannot ignore the fact that Israel’s wrongs have caused far more actual damage than Hamas’s wrongs.  But there is indeed a fundamental difference between (a) launching an attack that unintentionally causes disproportionate harm to civilians and civilian objects and (b) intentionally attacking civilians with rockets and intentionally using civilians as human shields.

That said, I strongly disagree with Bernstein’s belief that HRW should limit its criticisms to “closed” societies, leaving the human-rights abuses of “open” societies to the latter’s internal accountability mechanisms. HRW exists to uncover human-rights abuses and violations of the laws of war, not to pass judgment on whether a particular society is open or closed.  And I have yet to encounter the society, open or closed, that is completely free from sin when it comes to how they treat their citizens in times of peace and their enemies in times of war.  (Okay, maybe Norway.)

That does not mean, of course, that all societies violate human rights and commit war crimes equally.  I don’t believe that the US and Israel are worse in those respects than Sri Lanka, the DRC, Myanmar, Sudan, Colombia, etc.  Nor does it mean that HRW should not take into account whether a particular society is characterized by “vigorous public debate, an adversarial press and many other mechanisms that encourage reform” or is instead “closed and autocratic, permitting little or no internal dissent.”  But it does mean that HRW has an obligation to investigate human-rights violations and war crimes committed by any government that refuses to take responsibility for them, no matter how open or closed that society may be…

YJIL Symposium – From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies

by Tara Melish

[Ed. This is a slightly different, updated version than the one posted earlier today.] Let me begin by thanking Opinio Juris and the editors of the Yale Journal of International Law for hosting this online symposium, and especially Professor Elena Baylis for her willingness to provide comments on my recent article, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies.

This article seeks to take a closer, more searching look at what has frequently been called the “U.S. human rights paradox”—the United States’ longstanding practice of resisting direct domestic application of human rights treaty norms, even as it vigorously promotes those norms and their corresponding supervisory machinery for other nations (and understands human rights to stand at the core of its national identity). While most scholarly accounts attribute this “paradox” to deeply-embedded exceptional features of U.S. democratic structure or rights culture (and hence predict it unlikely to change anytime soon), the inability of exceptionalist narrative to credibly account for the significant empirical changes that have occurred in U.S. human rights engagement policy over the last fifteen years, raises serious questions about that narrative’s continuing utility. Such changes in U.S. human rights policy include not only a notable rise in human rights treaty ratifications—ratifications reliably shunned for forty years—but also, and in accelerated fashion since 2003, a qualitatively more robust policy of U.S. engagement with the international human rights treaty bodies charged with supervising U.S. compliance with its treaty-based human rights commitments. Notably, this latter shift has become most sustained precisely when least expected: in the post-Iraq invasion, Bush-era environment, when perceptions of U.S. unilateralism and go-it-alone exceptionalism (both at home and abroad) were at their peak.

In an effort to better explain the often asymmetrical shape and growth patterns of U.S. human rights engagement policy, I offer a new narrative based in interest group management. That narrative emphasizes a disaggregated analysis that looks at the interest intersections and competing push-pull agendas of four distinct instrumental interest groups, each seeking alternatively greater or lesser substantive and procedural engagement with human rights treaty bodies, in accordance with their group-specific policy interests. These include “realists” and “institutionalists” at the foreign policy level (the latter pushing for greater U.S. engagement, the former pushing away from it) and groups I call “insulationists” and “incorporationists” at the domestic policy level (the former seeking to insulate domestic politics from the methodological influence of human rights law, the latter seeking to incorporate human rights norms and methodologies into U.S. law and practice). The evolving shape of U.S. human rights engagement policy, I argue, is determined at the shifting intersection points of these four interest groups, as they are accommodated within and managed through a core set of doctrinally-anchored mediating techniques that define the parameters of U.S. engagement practice. These mediating techniques, used today to justify U.S. positions in virtually all treaty body fora, are reliably and reliedly drawn from two longstanding and foundational doctrines of international law: the doctrine of sovereignty and, most significantly, the principle of subsidiarity. Although both are today invoked only in their negative dimensions, each provides ample room for policy maneuver if used in their full dimensionality.

My central claim is that a fuller understanding of U.S. engagement policy’s basis in these doctrinally-anchored mediating techniques, and how their flexible contours are strategically manipulated to steer a middle course through the competing interests of U.S. realists, institutionalists, insulationists, and incorporationists, reveals that the “U.S. human rights paradox” may not in fact be so paradoxical. To the contrary, that paradox may be entirely explainable, at least in its modern era, by reference to how these four interest groups articulate their interests in ways that can effectively be accommodated by U.S. sovereignty and subsidiarity-based mediating techniques. As I seek to show through an examination of the specific ways the U.S. engages with the three principal competences exercised by UN, OAS, and ILO supervisory treaty body systems, U.S. human rights engagement policy today maps directly to the policy coordinates at which the interests of three of these groups intersect. These groups include foreign-policy realists, foreign-policy institutionalists, and domestic-policy insulationists.. Notably absent in this calculation are domestic-policy incorporationists.

Dean Claudio Grossman Addresses General Assembly

by Kenneth Anderson

One of the pleasures of teaching at Washington College of Law is that so many of one’s colleagues are involved in so many real world public international law activities.  They include our dean, Claudio Grossman, who in his capacity of chair of the UN committee against torture, today addressed the General Assembly.  (I’ll try to provide a webcast link; can’t find one at the UN site at the moment.)  My congratulations to Dean Grossman on his dedication to these and other human rights issues; they form a large part of the identity of WCL.  For those who might not be familiar with the mandate of the committee, here is a bit of Dean Grossman’s statement to the GA:

YJIL Symposium: Response to Mark Wu

by Anupam Chander

I am grateful to Mark Wu for penning a thoughtful response to some of the ideas in “Trade 2.0.” I am fortunate to have such an expert commentator. Wu agrees with my aims, but worries that the political will may be lacking to effect my proposals. He also offers four other hurdles to implementation. I consider each concern below, beginning (in the interest of easy cross-reference) with the one he labels “first,” and concluding with a response to the political will objection.

First, Wu is concerned that GATS Article XIV will prove a major hurdle to liberalization of trade in services conducted electronically. Article XIV allows countries to derogate from their liberalization obligations if necessary to protect public morals or the public order. This escape valve seems a wise measure to prevent the imposition of sanctions in cases where a particular trade liberalization would imperil domestic morals or domestic order. The proponents of GATS recognized, however, that claims of public morals or public order might be used to disguise protectionist regulation, and thus the WTO properly limited the invocation of Article XIV to cases where there is no “reasonably available alternative” to the GATS derogation (U.S. – Gambling). InU.S. – Gambling, the United States successfully invoked Article XIV nonetheless because Antigua failed to show that there was a “reasonably available alternative” to the U.S. regulation. But a future complainant may not be so reticent to press the possibility of a reasonably available alternative. Indeed, the European Union has hinted that it may lodge a complaint against the United States for failing to live up to its gambling commitments. Presumably, unlike Antigua, it would press the possibility of achieving, through means other than a prohibition on online supply, the laudable American objectives of protecting youth, preventing fraud, and minimizing problem gambling. The European Commission has made its opinion plain: it suggests that “[t]he enactment of UIGEA [the Unlawful Internet Gambling Enforcement Act of 2006] showed that alternative measures that are WTO consistent (such as authorization/licensing under sufficiently strict conditions) are reasonably available to the US.”

Kiyemba v. Obama

by Deborah Pearlstein

In something of a surprise move, the Supreme Court decided today to grant cert in Kiyemba v. Obama – an enormously important case about whether or not the federal courts have the power to order Guantanamo detainees (whose writs of habeas corpus have been granted) released into the United States. The NYTimes story is here. The Justice Department’s statement on the grant is here.

From The Times story:

The case concerns 17 men from the largely Muslim Uighur region of western China who continue to be held although the government has determined that they pose no threat to the United States.

Last October, a federal judge here ordered the men released. But a federal appeals court reversed that ruling in February, saying that judges do not have the power to override immigration laws and force the executive branch to release foreigners into the United States.

An appeal from the Uighurs has been pending in the Supreme Court since April, and it is not clear why the justices acted on it now. The Obama administration has sent some of the prisoners to Bermuda, and Palau has said it will accept most of the rest. But one prisoner apparently has nowhere to go.

The prisoners have said they fear they will be tortured or executed if they are returned to China, where they are viewed as terrorists.

The case presents the next logical legal question in the series of detainee cases to reach the court. Last year, in Boumediene v. Bush, the court ruled that federal judges have jurisdiction to hear habeas corpus claims from prisoners held at Guantánamo.

YJIL Symposium – Response to Professor Chander

by Mark Wu

First, thanks to the Yale Journal of International Law (YJIL) for the opportunity to comment on Professor Anupam Chander’s most recent article, Trade 2.0, in the latest issue of YJIL, and to Opinio Juris for hosting this symposium.

Chander highlights an important transformation in global trade. For centuries, the desire of a producer to expand overseas required a substantial commitment of capital and resources. The information revolution of the past decades has shrunk these costs drastically. This is especially true of the growing trade in services. While capital barriers have shrunk dramatically, however, legal and regulatory barriers have not. Some of these barriers are imposed by companies hosting these services; others are imposed by governments in the jurisdiction where the consumers of these services reside. Trade 2.0 raises provocative questions about whether the current international legal infrastructure is positioned to address these barriers. No doubt the World Trade Organization (WTO) has been “behind the curve” in dismantling protectionist barriers to the growing internet-based services trade. While the WTO has set up a work programme, little has been achieved.

Trade 2.0 identifies a series of principles to govern this emerging trade. I am sympathetic to the ideals which Chander seeks to foster — freeing and expanding trade, respecting local differences in norms, promoting harmonization, and preventing a race to the oppressive bottom. The questions that I raise below, therefore, exhibit my pessimism over whether these ideals can be readily balanced through a multilateral framework. The realist in me is doubtful that this important project of creating a global governance architecture for the next phase of international trade will be as successful as its predecessor (i.e., that for conventional trade in goods). The idealist in me hopes to be persuaded otherwise.

Why do I think this project will be so difficult? The obvious answer is the lack of political leadership. Differences persist between the U.S. and E.U., and neither of these two major trading powers has been willing to exert transformative leadership on this issue. (For an account of how U.S. and E.U. internal constraints and differences have prevented leadership from emerging in GATS negotiations on digital services, see Sacha Wunsch-Vincent’s book The WTO, the Internet, and Trade in Digital Prodcuts). Yet, increased political leadership will be required if a principled, coherent framework for cyber-trade is to evolve. The Appellate Body alone cannot craft such a framework through jurisprudential decisions. Beyond the problem of the political leadership void, let me offer four others:

Bernstein on HRW, Part 341 (Updated)

by Kevin Jon Heller

I had resolved to avoid blogging about Bernstein’s endless series of attacks on Human Rights Watch, but I couldn’t let the following pass without at least some acknowledgement:

At what point does the MSM stop treating HRW as a neutral source on human rights in the Middle East, and start treating it like the left-wing, anti-Israel, anti-Western organization it has openly become?  And at what point do HRW’s liberal, human-rights oriented American donors become tired to enabling this?  Maybe the growing dismay of long-time HRW supporters like [Robert] Bernstein explains why Middle East Director Sarah Leah Whitson decided to expand HRW’s donor base to Saudi elites?  Better to take money from Saudi princes than to worry about how your growing loss of credibility among even among your natural supporters will affect your fundraising.

What a remarkable paragraph.  HRW is now not simply anti-Israel, it’s actually anti-Western.  I have no idea what it would mean for HRW to actually be anti-Western; perhaps it wants to turn the US into an Islamic state?

As for Bernstein’s claim that HRW has taken money from Saudi princes — I’d like to see his evidence.  He has never made that claim before, and I can’t find a reference to princes by any of the other usual suspects, such as NGO Monitor.  Moreover, Sarah Leah Whitson has stated categorically that HRW has never raised money from the Saudi government.

With each telling by Bernstein, HRW becomes more and more demonic. I look forward to the claim that Ken Roth is hiding bin Laden in HRW’s New York City offices!

UPDATE: Here is Bernstein’s reply:

I’d say that organizations staffed by people who implicitly hate the U.S. and Israel is “anti-Western.”

As for the princes, to my knowledge, not all of the thousands (I’ve seen estimates from 7-27K) Saudi princes are part of the Saudi government, though they are related to the king.  And HRW has publicly announced, in response to criticism of its trip to S.A.: “Human Rights Watch is eager and delighted to find supporters of the human rights ideal – financial or otherwise – in any and all countries of the world.”  And who has more money in Saudi Arabia than the elites?  If HRW would clarify that it would not accept money from anyone who is a member of the House of Saud, regardless of whether they have an official government position, I’d be happy to retract that comment.

This is truly revealing.  First, in Bernstein’s view, the US and Israel are synonymous with the West.  Europe — which is much more willing to openly criticize Israel’s behavior (and the US’s enabling of that behavior) — doesn’t count.  Second, now HRW hates the US, too?…

YJIL Symposium – Trade 2.0: “The New Global Traders on Your iPhone”

by Anupam Chander

Today, one of the most important ports of entry for trade can be found on the diminutive screen of the iPhone. Companies from around the world vie to provide a service via that screen — playing a game, offering information, managing finances, or connecting one with friends. With its two billionth download, Apple announced last week: “Today, iPhone and iPod touch customers in 77 countries worldwide can choose from an incredible range of apps in 20 categories, including games, business, news, sports, health, reference and travel.

The process for becoming such a global trader is remarkably easy. One registers as a developer with Apple, agrees not to violate United States laws prohibiting export of certain technology with military uses, declares whether one is U.S. person or a foreign person for purposes of U.S. tax collection, chooses the languages in which the application is to be offered, and indicates a bank account to collect the proceeds.

It has not traditionally been so easy to sell services to the world. The recent development of near-instantaneous communication via global electronic networks makes it possible for people to provide services across the world without boarding a plane or passing a customs checkpoint.

But offering an app through the Apple store is not without possible controversy, especially when the same app is offered across so many jurisdictions. Apple itself polices the proposals, thus far denying applications to sell pornography, for example. Apple retains “the right not to post any material . . . at any time in its sole discretion without notice or liability.” But Apple may permit material that some countries may find objectionable, and it may deny material that some countries may believe cannot be justifiably denied. How will the trade mediated by this device that fits in the palm of one’s hand conform to the laws of all the shores it visits?

Consider the major news in the IT industry from the last two weeks. Dell announced the multi-billion dollar acquisition of Perot Systems, and Xerox followed with its own multi-billion dollar acquisition of Affiliated Computer Services. Perot Systems and Affiliated Computer Services provide outsourcing services to both governments and corporations. With these acquisitions, Dell and Xerox, traditionally in the global hardware business, now plan to move into global services, much as IBM did a few years back. All of these companies rely upon an electronically-enabled global workforce to supply services across the world. Meanwhile, Amazon announced its newest Kindle, now available with aninternational wireless service that allows you to download books and other reading material in more than one hundred countries. Amazon’s Kindle, like the iPhone, now allows authors to reach consumers across the world. People all over the world can now engage in global trade with just a few movements of their fingers.

My article Trade 2.0 in the latest issue of the Yale Journal of International Law begins to think through how we should think of trade conducted via electronic networks. The abstract for the paper reads:

The Obama Strategy on Sudan: How to Downplay the ICC

by Julian Ku

Looking at the long-awaited new Obama Sudan Strategy, there is much to admire.  It is sensible, forward-looking, and realistic.  It also appears to be pretty much the same policy President Bush pursued, which then Obama campaign adviser Susan Rice (and current UN Ambassador) trashed back in 2008.  For instance, it emphasizes ending the violence and war through a peace agreement, and barely mentions the elephant in the room.  How do you make a peace deal with a government headed by an individual wanted for war crimes and crimes against humanity?

YJIL Symposium – Reply to Alexander Orakhelashvili

by Evan Criddle and Evan Fox-Decent

One of the great benefits of Opinio Juris is that it permits authors to clarify their views in light of thoughtful criticism, and Alexander Orakhelashvili’s comment on our article is certainly all of that. As the author of the leading monograph on jus cogens, namely Peremptory Norms in International Law (OUP 2006), Professor Orakhelashvili is uniquely qualified to address our article’s contribution to the theory and practice of peremptory norms. We are grateful for his remarks and will respond briefly to three objections he presses against our fiduciary theory of jus cogens.

The first objection is that although the fiduciary theory is well placed to explain peremptory norms governing fundamental human rights and principles of international humanitarian law, it cannot explain the peremptory status of the prohibition on the use of force against states (i.e., the prohibition on military aggression). In our paper we suggest that military aggression is tantamount to a crime against humanity (p. 370), and go on to justify the anticolonial right to external self-determination as an analogue of the prohibition on the use of force (p. 373). In both cases, the relevant norms enjoy peremptory status because, under the fiduciary model, a state cannot use force to subject another state or people to its control without implicitly failing to treat foreign nationals as equal moral agents. The fiduciary theory calls for self-rule as the best means of ensuring the secure and equal freedom of individuals within states, and from this commitment follows the prohibition on the use of force.

YJIL Symposium – Observations on a Fiduciary Theory of Jus Cogens

by Alexander Orakhelashvili

Peremptory norms (jus cogens) form part of the core of the international legal system, and combine both public policy (public order, ordre public) and constitutional elements in the sense that they ban the legal effect of conflicting acts and transactions and prevail over conflicting norms and instruments. Both these qualities follow from the attribute of non-derogability, which the international community has unambiguously recognised in Article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT). Given the fundamental relevance of jus cogens, the doctrinal opposition to it over the past several decades, although sometimes voiced in a popular and attractive language, has always proved moot and of little influence on how the actual concept of international public policy has developed. Instead, what has happened is an increase in the recognition of the essence and effects of jus cogens in practice and its increasing treatment in doctrine. In this respect the formulation of a fiduciary theory of jus cogens by Professors Criddle and Fox-Decent is yet another welcome development that can facilitate scholars’ understanding of the jurisprudential underpinnings of this rather complex normative phenomenon.

Criddle and Fox-Decent derive the doctrinal basis of jus cogens from Kant’s innate right of children to their parents’ care. This leads to the seeing of States as fiduciaries of the people subject to their power, which goes hand in hand with jus cogens safeguarding higher moral values of the international community. The fiduciary theory is further useful in corresponding to the way international jus cogens is identified: peremptory norms must be “public, clear, feasible, consistent with other like norms, relatively stable over time, and prospective rather than retroactive;” and “[m]ost if not all human rights conform to the[se requirements].” The conclusion that “[p]eremptory norms such as the prohibitions against slavery and torture are not exceptions to state sovereignty, but rather constitutive constraints flowing from the state-subject fiduciary relationship itself” is conceptually feasible, and can serve as one of the rational explanations of the jurisprudential essence of international jus cogens.

While this conceptually captures the reason that some peremptory norms – such as fundamental human rights and fundamental principles of international humanitarian law or the principle of self-determination of peoples – bind States, namely because they protect non-State actors against the arbitrary exercise of State authority or the failure of States to protect vulnerable individuals from private violence,[1] it should also be accepted that fiduciary theory does not cover the entire field of jus cogens. Namely, this theory does not explain why the prohibition of the use of force against States – unambiguously recognised as peremptory both at international and national levels – has such superior normative status. The International Court of Justice affirmed the peremptory status of the prohibition of the use of force in Nicaragua v. United States.[2] Although there have been repeated doctrinal attempts to deny this, most notably by Professor Shelton,[3] the careful reading of Nicaragua conveys the opposite message. The Court pointed to the International Law Commission’s (ILC) qualification of the relevant norm as peremptory and then used this factor as an evidence of the relevant norm’s customary character. Once the Court drew consequences from the peremptory status of the norm, it effectively subscribed to the view that the prohibition of the use of force is part of peremptory law. The credibility of Shelton’s approach is thus rather upset by the contextual reading of the Nicaragua judgment, which not only acknowledges the ILC’s view but further relies on it to identify the customary law status of the prohibition of the use of force.

YJIL Symposium – A Fiduciary Theory of Jus Cogens

by Evan Criddle and Evan Fox-Decent

We would like to begin by thanking Opinio Juris and the Yale Journal of International Law for hosting this symposium, and Alexander Orakhelashvili for generously agreeing to act as our interlocutor.

In international law, the term “jus cogens” refers to norms that are considered peremptory in the sense that they are mandatory and do not admit derogation. In our article, we argue that peremptory norms are inextricably linked to the sovereign powers assumed by all states. The key to understanding international jus cogens lies in Immanuel Kant’s discussion of the innate right of children to their parents’ care in The Metaphysics of Morals (pp. 98-99). Drawing on Kant’s account, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to their power. An immanent feature of this state-subject fiduciary relationship is that states must comply with jus cogens. Just as important as the theory’s justification of peremptory norms, however, is its capacity to clarify the content of jus cogens by generating discrete criteria for identifying peremptory norms.

Online Symposium About the Future of Sudan

by Kevin Jon Heller

Making Sense of Darfur will be holding an online symposium over the next few weeks dedicated to analyzing what is likely to happen in Sudan in 2010 and 2011.  Here is how it’s described by Alex de Waal, with whom I rarely agree but always respect:

Sudan faces two momentous events in the next fifteen months. The first is the general election, intended as the first multi-party nationwide elections in the nation’s history (earlier multiparty elections in the 1960s and 1980s did not include war-affected areas in the south, an exclusion that doomed the resulting governments). The second is the referendum on self-determination in southern Sudan, which if indications of southern opinion are reliable, will lead to a decisive vote for secession. With all the attention on ‘CPA implementation’—which consists of safely getting to the point of the referendum—there has been far too little attention to what happens afterwards.

Two reports on scenario exercises, by the Clingendael Institute in the Hague and by the U.S. Institute of Peace have filled that gap in the public discourse. Over the next weeks, we will be debating these on this blog.

The authors of the two reports will outline the findings of their exercises and we have invited some of those who contributed, and who have thought about these issues, also to contribute.

It should be an interesting discussion, especially as the symposium will not just be limited to the blog’s roster of regular contributors, a disturbing number of whom are the most obvious Bashir apologists.  (Including a former speechwriter for the Sudanese government, who not surprisingly sees all of Sudan’s problems as the fault of everyone other than Bashir.)

Check it out!  The first post is already up.

A Completely New Standing Argument Against the Alien Tort Statute

by Julian Ku

(Please note that a commenter has rightly corrected me on two points, which I correct below)

Former State Department Legal Adviser John Bellinger (and former OJ guest blogger) spoke today at Hofstra’s biennial Legal Ethics Conference.  His talk was typically engaging, honest, and interesting (it will not be news to many of our readers that Bellinger was an internal dissenter on many Bush Administration policies).  But you will have to wait for the webcast to get more details.

Bellinger also flagged a case that I have totally missed: Judge Royce Lamberth’s curious dismissal of a major Alien Tort Statute lawsuit against Exxon Mobil arising out of activities in Indonesia.   It is curious because it comes up with a completely new and potentially devastating argument against most ATS cases: that non-residents aliens do not have standing to bring lawsuits in the U.S., as a general matter.  Whoa! Where did that argument come from?  It seems to come entirely from a 1976 district court decision in Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976). [Correction: a commenter points out that the current case only has DC tort law claims remaining, and no claims under international law, although it is not clear to me that this would affect the standing argument]

I have to admit I know very little about “prudential” standing (as opposed to constitutional standing).  It is worth noting that the [analysis of standing in the] 1976 decision in  Berlin Democratic Club has never been cited in any judicial opinion.  Ever! It is “precedent”, but hardly a very deeply developed one. I smell a reversal coming…

Yale Journal of International Law, Vol. 34, No. 2: Online Symposium

by Editors of the Yale Journal of International Law


The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris in our fourth online symposium (previous symposia can be found here). This Monday, Tuesday, and Wednesday we will feature three Articles published by YJIL in Vol. 34, No. 2, which are available for download here. Our sincere thanks to Julian Ku and the rest of the Opinio Juris team for hosting this exciting discussion.

On Monday, Evan J. Criddle (Syracuse University College of Law) and Evan Fox-Decent (McGill University Faculty of Law) will discuss their Article, A Fiduciary Theory of Jus Cogens. Drawing from Immanuel Kant’s account of familial fiduciary relations in The Doctrine of Right, Criddle and Fox-Decent posit that states exercise sovereign authority as fiduciaries of those subject to their power and that compliance with jus cogens norms emerges as a condition of this state-subject fiduciary relationship. The authors then use this framework to develop both formal and substantive criteria for identifying peremptory norms, which they argue will enable national and international courts to better employ peremptory norms in appropriate cases and fill in many of the gaps left by existing accounts of jus cogens. Alexander Orakhelashvili (University of Birmingham) will respond to this piece.

On Tuesday, Anupam Chander (University of California at Davis School of Law) will introduce his Article Trade 2.0. In this piece, Chander uses several recent developments to analyze the new challenges raised by what he calls net-work: the transnational trade in information services made possible by the development of a truly global electronic communications systems. Noting that several unique aspects of net-work trade are not adequately addressed by the established conventions that have arisen around past forms of transnational trade, Chander argues that a similar system of rules and principles will be necessary to effectively balance the national regulation of services with the removal of inefficient barriers to the transnational trade in services. Towards this end, Chander identifies two principles related to the liberalization of net-work trade — technological neutrality and dematerialized architecture — and three principles regarding states’ rights to regulate the transnational trade in services — globalization, harmonization, and “do no evil” — that he maintains will help strike this balance. Mark Wu (Academic Fellow, Columbia Law School) will discuss this piece.

Finally, on Wednesday, Tara Melish (University at Buffalo Law School, State University of New York) will present her Article From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies. Melish draws from theories of interest group management to offer a new narrative of the United States’ engagement with international human rights bodies, one that questions traditional descriptions U.S. human rights policies as paradoxically split between outward prodigiousness and inward conservatism. Instead, Melish argues that the United States’ engagement with human rights treaty bodies reflects policymakers’ efforts to mediate between a complex variety of political pressures in a manner that is consistent with the principle of subsidiarity underlying much of international human rights law. Drawing from this perspective, Melish goes on to provide several strategic insights as to how human rights advocacy groups can better embrace this principle of subsidiarity and thus lobby more effectively for the domestic incorporation of human rights principles. Elena Baylis (University of Pittsburgh School of Law) will provide a response to this piece.

We hope that you enjoy what is sure to be a thought-provoking exchange, and encourage you to make your own contributions to the debate in the comments sections!

Additional Thoughts on Self-Representation

by Kevin Jon Heller

Martin Holterman and Marko Milanovic have been kind enough to respond to my post on the ICTY’s attack on Dr. Karadzic’s right of self-representation, so it’s only fair that I respond to their responses.

To begin with, Martin writes that “[g]iven the precedent of the Milosevic case, and undoubtedly many others with which I am less familiar, I think we can all agree that [defendants’] insistence on their right to proceed pro se smells suspiciously like abuse of right, meaning that the tribunal is within its rights to discourage it.”  As Patrick points out in the comments, it is both legally and ethically wrong to infer the abuse of a right from its mere exercise. And it is even more legally and ethically wrong to presume that Dr. Karadzic will abuse his right of self-representation because other defendants have done so.  Martin admits that “so far Mr. Karadzic’s actions do not seem to rise to the level of abuse of right.”  What, then, is the justification for criticizing his assertion of that right?

The real issue, it seems to me, is that most people dislike — often intensely — the fact that the right of self-representation exists at all.  Frankly, I agree with them.  If I were creating a new international tribunal, I doubt that I would permit defendants to represent themselves.  There is (in my opinion) no legal requirement for that right, despite the past practice of the international tribunals; it is difficult to argue that self-representation is a general principle of criminal law.

But that is beside the point: the ICTY Statute, which derives its legal authority from the Security Council, gives defendants the right to self-represent.  That is, of course, an obvious point.  But it seems all too forgotten in these discussions.  Article 21(4)(d) may be an egregious mistake.  But that is the Security Council’s fault, not Dr. Karadzic’s.  It is not his job to save the Security Council from itself.

The existence of the right, in my view, means that our baseline assumption has to be that it is legally and morally unjustifiable to penalize Dr. Karadzic in any way for his decision to represent himself.  Which brings me to Marko’s comments, which focus, quite rightly, on the critical issue in my post: if we assume that Dr. Karadzic cannot be penalized for exercising his right of self-representation, how much time to prepare for trial is adequate?…

Rumu Sarkar, International Development Law

by Kenneth Anderson

OUP just sent along a review copy (note, per the FTC, free merchandise from OUP!!). The book is Rumu Sarkar, International Development Law: Rule of Law, Human Rights, & Global Finance. This isn’t a review – I have only read the first chapter, and I am pretty certain I will find places both to agree and disagree.  But I am finding it highly compelling reading, partly because I have a strong and long interest in development and development finance issues, mostly through my pro bono work.  Actually, let me be stronger than this, even on the basis of a chapter and a half – if you have pretty much any interest in this intersection of topics, or newly emerging international legal field, however you want to put it, I think you will have to take a look at this book.

The ICTY’s Ongoing Attack on the Right of Self-Representation

by Kevin Jon Heller

As everyone in the world probably knows by now, Dr. Karadzic’s trial is set to begin on October 26th.  The current trial date is the culmination of two interrelated decisions by the Tribunal: the Trial Chamber’s unsurprising decision not to require the Prosecution to trim its monstrous and completely unworkable indictment (choosing instead to impose insignificant time-limits on the prosecution’s case-in-chief); and the Appeals Chamber’s rejection of Dr. Karadzic’s request for more time to prepare for trial.

Dr. Karadzic’s defense team (of which, as a reminder, I am part) believes that the trial date is completely unfair.  But we are certainly not surprised that the Appeals Chamber rejected Dr. Kardzic’s request for more time: the unfair trial date is simply the latest salvo in the Tribunal’s never-ending attack on Dr. Karadzic’s right of self-representation. From the beginning of the case, the Tribunal has tried to force Dr. Karadzic to waive that right by depriving him of the time and resources he needs to adequately prepare for trial.

Consider, for example, one of the Prosecution’s arguments against Dr. Karadzic’s request, as summarized by the Appeals Chamber in its decision setting the trial date:

13. Тhе Prosecution maintains that Karadzic’s own choices have made his preparation for trial more difficult. It contends that Karadzic’ s decision tо represent himself, seek large volumes of disclosure material of only limited relevance, have his legal volunteers work оп issues other than trial preparation and request large volumes of materials аt а late stage from third parties are self-inflicted hindrances tо adequate trial preparation.

Every assertion in that paragraph is misguided…

Obama Will “Engage” on Sudan (And Ignore the ICC)

by Julian Ku

The Obama Administration is becoming famous for their Friday night news dumps (deficit reports are always on Fridays).  So here is another one sure to anger some parts of their base, but which is carefully buried while everyone is watching the Yankees beat up on the Angels.

The Obama administration has formulated a new policy for Sudan that proposes working with that country’s government, rather than isolating it as President Obama had pledged to do during his campaign.

In an interview, President Obama’s special envoy to Sudan, Maj. Gen. J. Scott Gration, said that the policy, to be announced Monday by Secretary of State Hillary Rodham Clinton, would make use of a mix of “incentives and pressure” to put an end to the human rights abuses that have left millions of people dead and displaced while burningDarfur into the American conscience.

General Gration said the administration would set strict time lines for President Omar al-Bashir of Sudan to fulfill the conditions of a 2005 peace agreementthat his government signed with rebels in southern Sudan; under the agreement, a proposal for independence for southern Sudan will be put to a vote in 2011.

It looks like Gration has won out over Sudan hawk Susan Rice in this interagency battle.  And this sounds like the least worst policy, given our options, but it is striking how it departs from the high-minded and hawkish language that both Obama and his VP Joe Biden used in their campaign, and their criticism of President Bush for not doing enough to isolate the regime (Biden wanted a no-fly zone and a NATO intervention!).

But even more striking:  the Obama Administration appears ready to make a deal with Sudan, without insisting on compliance with the ICC’s arrest warrants for Sudan’s President and other government officials. As a non-party to the ICC, this actually gives the U.S. more legal and policy room to make a deal.  But will the Obama Administration now move to have the prosecution deferred altogether?  They may have to (but I’m sure that story will be held back until at least the college football playoffs).

Finland Makes High Speed Internet Access a (Human?) Right

by Julian Ku

Wow! I know there has been some talk and some cases about an international right to internet access. But Finland has upped the ante by guaranteeing a right to high speed internet access.

Finland’s Ministry of Transport and Communications has made 1-megabit broadband Web access a legal right, YLE, the country’s national broadcasting company, reported on Wednesday.

According to the report, every person in Finland (a little over 5 million people, according to a 2009 estimate) will have the right of access to a 1Mb broadband connection starting in July. And they may ultimately gain the right to a 100Mb broadband connection.

I don’t know about how I feel about making internet access a “human right”.  Is telephone access a human right?  TV access?  Radio?  On the other hand, if we are going to make internet access a human right, it makes sense to guarantee broadband.  I shudder at the thought of using dial up on today’s internet.

Goodbye Bush Preemption Doctrine?

by Julian Ku

It sure looks like it, according to Bloomberg.

The Pentagon is reviewing the Bush administration’s doctrine of preemptive military strikes with an eye to modifying or possibly ending it.

The international environment is “more complex” than when President George W. Bush announced the policy in 2002, Kathleen Hicks, the Defense Department’s deputy undersecretary for strategy, said in an interview. “We’d really like to update our use-of-force doctrine to start to take account for that.”

It would be interesting to see if the new strategy pays more than simply ritual obeisance to the international law governing the use of force, or whether it explicitly incorporates such norms.

Georgetown Journal of International Law Invites Proposals for Symposium on Global Anti-Corruption

by Julian Ku

For those of you working on anti-corruption papers, the following symposium might be just the place for you (Deadline November 1, 2009).

Bradley and Goldsmith on Government Officials and the FSIA

by Roger Alford

Curtis Bradley and Jack Goldsmith have a nice piece in Green Bag on foreign sovereign immunity as applied to current and former government officials. The article tees up the issues that will be presented in Samantar v. Yousef. Here is a key part of their argument:

We agree with those courts that have concluded that suits against individual foreign officials are not easily accommodated within the “agency or instrumentality” language of the FSIA. There is, however, a better textual basis for applying the FSIA: these suits can be considered to be directed against the foreign state itself for purposes of the FSIA. Since a state acts through individuals, a suit against an individual official for actions carried out on behalf of the state is in reality a suit against the foreign state, even if that is not how the plaintiff captions his or her complaint. This approach is consistent with the FSIA’s definition of “foreign state,” which does not purport to be comprehensive, but rather simply “includes” various entities, including agencies and instrumentalities.

Bradley and Goldsmith then argue that this reading is consistent with (1) jurisprudence from the Ninth and Second Circuits; (2) the pre-FSIA common law approach; and (3) international law understandings of foreign sovereign immunity; and (4) the approach taken by foreign courts.

The arguments are persuasive and I would not at all be surprised if the Supreme Court follows an approach similar to this.

The other analogy that Bradley and Goldsmith do not reference but that I suspect will weigh heavily in the balance in Samantar is the approach taken in the domestic context with the Federal Tort Claims Act. Under the FTCA, if a suit is brought against a federal official for a common law tort, the federal official is dismissed from the suit and the federal government becomes the defendant.

If this approach is taken, then the debate will turn to whether government officials that engage in international law violations acted within the scope of their authority.

Speculating Freely on the Future of the ATS in a Multipolar World and a Rising China

by Kenneth Anderson

Harvard Law School is hosting in a couple of week what is certain to be a very interesting small conference on the Alien Tort Statute.  I was lucky enough to be one of the invitees, addressing the issue of corporate liability under the ATS.  I address the issue of corporate liability under the ATS, but am actually interested in it from a broader perspective, the “jurisprudential” perspective on the distinct and sharply divided “communities of interpretive authority” over such issues in the ATS as the status of corporate liability.  I have written elsewhere recently (in the European Journal of International Law; I think a link directly to the paper in this post here) of the “fragmentation of communities of interpretation and authority” in international law.  The ATS seems to me to offer a striking example of that.

Corporate liability can be thought of as a “hinge” issue in ATS jurisprudence – a “hinge” that under (an amalgamated reading of) current holdings serves to link “international law” to “domestic law,” as required by the two parts of the ATS.  I don’t think it is at all a correct reading of either international law or domestic law, but it seems to me an (arguably) accurate reading (there are always variations and cross-currents) of current cases and their holdings on corporate liability, including, for example, the latest Talisman ruling from the Second Circuit.

In addition to all that (“jurisprudential blather” – ed.), however, I conclude the paper (this is still in first draft, believe me) with a speculation about whether the case law developing around corporate liability in the ATS will remain stable in a world in which the US chooses decline and allows the emergence of a genuinely multipolar world, a world in which China is a much, much bigger player, as in creditor and debtor.  All highly speculative ….

International Law Journals in English Outside the US or English-Speaking Countries

by Kenneth Anderson

I’ve wanted to mention for a while that international law scholars might want to keep in mind the surprisingly large number of English language international journals that publish outside the United States or English-speaking countries such as those places where KJH hangs out.  It’s been on my mind as I have a piece coming out later on this year from the Gottingen Journal of International Law (GoJIL).  It’s a new online law journal, and I’ve been reading it, first on account of my own piece appearing there, and then because I thought it quite interesting – the second issue is devoted to Russia and international law, for example and is excellent.

I realize that scholars these days tend to be quite rankings-focused in their scholarly placement.  I tend not to be, alas, not because the rankings of the journal don’t interest me, but because ….

Call for Questions/ Topics: Roundtable on International Law in the Face of New Threats to Peace and Security

by Chris Borgen

Kristen Boon of Seton Hall Law School (and occasional Opinio Juris guest-blogger) has sent in the following call for questions/ topics for a roundtable at International Law Weekend entitled Overlapping Threats / Overlapping Jurisdictions: International Law in the Face of New Threats to Peace and Security. She writes:

Climate change, swine flu, the global financial crisis, and drug trafficking pose significant new threats to international stability. Do they constitute threats to peace and security as a matter of international law, and if so, which organizations will ultimately exercise jurisdiction over these growing challenges of globalization? Do existing global bodies – the UN Security Council, World Health Organization, the World Bank – have the power to respond decisively and effectively? If so, why? Will the private sector, or regional, economically driven entities, such as the G20, emerge as the dominant decision makers?

Please join us to explore these questions, and more, in a roundtable discussion at the 2009 International Law Weekend on Friday Oct. 23 at 2:15pm at Fordham Law School with Amb. Christian Wenaweser (Amb. of Leichtenstein to the UN), Prof. Benedict Kingsbury (NYU Law), Prof. Stephen Marks (Harvard School of Public Health), and Mr. Vikram Raghavan (World Bank).

What do you want to know?

Please email questions in advance to: Prof. Kristen Boon: boonkris [at] shu [dot] edu.

Now That’s What I Call Engagement: Sudan Seeks to Hire Washington Lobbyists

by Julian Ku

The Washington Post reports that a prominent Democratic fundraiser and close ally of Senator John Kerry (chairman of the Senate Foreign Relations Committee) is seeking to be permitted to lobby on behalf of the current Sudanese government.  This may seem a little weird, and even morally distasteful, but it is another logical consequence of the engagement strategy.  As the hopeful lobbyist is quoted as saying:

“The Obama administration is talking about engagement, and we believe in that,” Crowe said in an interview. “If we can make a difference, we will. But if we get into this and determine we can’t, we’ll walk away.”

Even more fascinating.. the idea of getting Sudan a lobbyist came from Senator Kerry’s office, which sought out the lobbyist and convinced him to apply to represent Sudan.

This is another sign of where the Sudan policy is heading, and I think this, on the whole, is probably the least worst approach (although I don’t get why Sudan needs a lobbyist).  Still, I also find it fascinating that no one, not even the Post article, bothers to mention that the government of Sudan is still run by someone sought by the ICC for war crimes.    I guess that doesn’t matter much, even to the famously self-consciously multilateralist Obama Administration.

Bombing the Moon and Satellite War

by Kenneth Anderson

I’m pleased to note that Glenn Reynolds and I have a new short opinion piece up at, Bombing the Moon.  It takes the hook of the LCROSS mission last week to shift gears from explosions on the Moon to … orbital war on satellites.  Here’s a short bit:

The LCROSS mission is an important and expensive scientific experiment. Nonetheless, comments on Web sites such as Scientific American and Nature indicate that quite a few people thought the whole venture to be some sort of outer-space vandalism. Some even wondered whether NASA might have acted illegally or violated an international law or treaty by setting out to “bomb the Moon” … The answer is no.

[T]oday the leading threat is to global communications and control of instruments crucial to economic and social systems, by means of weapons aimed against satellites. Nor does the threat necessarily require any specially designed weapon; satellites are horribly delicate and unprotected against kinetic force, and essentially anything with an engine and some maneuverability, including other satellites present for otherwise ordinary and nonthreatening uses, can create a threat to them. Think IEDs (improvised explosive devices) in space.

New: Harvard’s National Security Journal

by Duncan Hollis

I had the good fortune to be invited to lecture to Jack Goldsmith’s class on Cyberwar and Cybercrime at Harvard Law School last week to discuss my arguments for why we need new international law rules for cyberconflicts.  While there, a student flagged for me a new journal–the Harvard National Security Journal–that’s literally and figuratively coming on-line right now.  Here’s how their web-page describes it:  

The Harvard National Security Journal (NSJ) is a newly-established student edited online journal dedicated to improving scholarship and discourse in the field of national security. The field of national security has grown significantly over the past several years, with a corresponding demand for critical scholarly analysis on its legal and policy dimensions. Complicated issues regarding separation of powers, executive authority in the Global War on Terror, the role of the Fourth Amendment in national security surveillance, and the legality of coercive interrogation techniques have challenged our policy makers and lawyers alike in fields from constitutional law to military law and human rights. To date, however, much of the academic literature on national security has been published in journals of related fields such as international law or public policy. Such diffusion of thought impedes the generation of reflective dialogue and productive dialectic. NSJ aims to foster such dialogue with an eye toward effectively influencing policy by bringing together a diversity of perspectives and expertise in one location.

As an online journal, NSJ seeks to provide a unified source for timely ideas and debate in a rapidly changing landscape. NSJ seeks well-researched scholarship from academics and practitioners and encourages responses to previously published pieces. Our online format accommodates primarily short, targeted pieces with practical application as well as theoretical discussions. We believe this model will increase the range of academic perspectives that can be engaged. . .

If the Advisory Board is any guide, this journal has the potential to become a forum for serious discussion among national security law scholars and practitioners.  More information on their submission process is available here.

Charli Carpenter on the EU Georgia-Russia War Report

by Kenneth Anderson

Charli Carpenter has an interesting short commentary over at RFE/RFL discussing the recently released fact-finding report on the Georgia-Russia war.  I have not had a chance to read the report, so I won’t comment myself (I said something about my experiences as a human rights monitor of the early 1990s phase of the civil war, and then followed up with a limited comment about the current situation, but that’s been it), but suggest those interested in sorting out those issues take a look at the report and Charli’s commentary, including her addendum at CTLab.  Chris has posted extensively on this topic here at OJ, of course, and there have been various discussions of secession and statehood, among other related topics.  A bit from Charli’s RFE/RFL commentary:

On 30 September, the European Union released its report on last year’s August war in the Caucasus. The aim was to establish what happened, since as stated in the preamble, “there can be no peace in the South Caucasus as long as a common understanding of the facts is not achieved.”

Since its release, however, these “facts” have been appropriated by both sides and misconstrued by the press. Russia — and numerous reporters — have spun the report as an indictment of Georgia for “starting” the war. Georgia claims a victory as well, since the report acknowledges the war’s causes must be understood in historical perspective.

Whose interpretation is right? And why did the report fail at its task of creating a “common understanding of the facts” that would move forward the process of reconciliation?

To answer the first question, neither perspective is accurate. In fact, the report blames Russia for starting the war with Georgia. But it also blames Georgia for starting a civil war within its own borders, and no acknowledgements of the historical context lessen that blame. Perhaps more importantly, both parties violated the laws of war.

In a nutshell, two armed conflicts, not one, took place in the Caucasus in August 2008. And two relevant branches of international law — on the use of force and on the conduct of force during and after hostilities — governed the legality of these wars.

The Difference Between Foreign and International Law: A Very Short Response to Kevin

by Julian Ku

It’s good to be back battling with my fellow co-bloggers.  I still owe Chris and Deborah a response on other matters, but let me just briefly respond to Kevin’s smart but still not entirely convincing post.  It’s not that I have any serious rebuttal of Kevin’s legal analysis of the Honduras Constitution (and I apologize for my boo-boo on the Law Library of Congress vs. the CRS).  Rather, the point of my post on Koh was that the Honduran constitutional legal question is pretty central – indeed, it might be absolutely central — to U.S. policy.  If the removal of Zelaya was even arguably legal, it is hard to understand why the U.S. and the OAS are taking such an aggressively interventionist approach, given that new elections are going to be held in December and especially given the Obama Administration’s relative insouciance on much less obviously legal elections going on in Iran and Afghanistan.

In any event, I agree with Kevin that the removal of Zelaya was not obviously legal, but I am unconvinced by his post that it was totally illegal.  And I think that the burden is on folks like Kevin (and Koh, for that matter), to present a slam-dunk case for the illegality of the Zelaya removal.  Why?  Because, as Kevin points out, the key domestic institutions in Honduras, including the Honduras Supreme Court, have deemed the removal legal.  This is more than just a formal point:  It’s legal because the Honduras Supreme Court says it is.  But it is also a basic conflict of laws/ comity/ act of state point.  When analyzing foreign law, due deference should be given to those foreign legal institutions that are authorized to issue binding and authoritative interpretations of that law.  Such deference is not absolute, but it should be very strong on matters where the institutions are opining on a matter that occurring entirely within their jurisdiction and does not even arguably violate international law.

Which is why I am fascinated with the yet-to-be-disclosed Koh opinion.  He may spin out the same argument that Kevin does, but he has got to meet a much higher standard.  In my view, the opinion has to show that the removal was clearly, plainly, and unmistakeably illegal under Honduras law.  It better be one hell of an opinion.

The (Arguably) Legal Coup in Honduras

by Kevin Jon Heller

I have no expertise in this area, so I’m not going to opine on the legality of Zelaya’s ouster.  Two things, however, are worth noting.  First, the report that Julian mentions was not written by the Congressional Research Service — a mistake that others on the right have made.  It was written by the Law Library of Congress.  Second, the report is not exactly reassuring concerning whether Zelaya’s ouster was actually legal.  Its conclusion is ultimately a formal one, resting on the idea that any interpretation of Honduran law is acceptable as long as the relevant procedures were followed:

Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.

The actions of both the Honduran National Congress and the Honduran Supreme Court, however, are deeply troubling.  First, the National Congress’s decision to remove Zelaya seems to be based on an extremely questionable reading of the Honduran Constitution.  As the report notes, although the National Congress lost the power to impeach the President in 2003, it decided that it still had the “intrinsic” power to remove him as part of its constitutional right to “disapprove” the actions of “the administrative conduct of the Executive and Judicial Branches, the National Tribunal of Elections, and many other high officers of the State”…

Senator DeMint, Harold Koh, and Honduras

by Julian Ku

Senator Jim DeMint of South Carolina weighs in today with a WSJ oped blasting the Obama Administration’s policy toward Honduras. Putting aside the merits of DeMint’s analysis for the time being, I found his oped interesting for two reasons: one having to do with DeMint’s somewhat sketchy actions, and the other with Harold Koh’s potentially sketchy legal advice.

1) “One Voice”?

DeMint is openly, brazenly challenging the correctness of U.S. foreign policy toward Honduras.  He can obviously do that, but the nature of his oped, recounting his recent trip to the country meeting with leaders there, makes me wonder whether he expressed these views while he was in Honduras as well. If he did, this seems problematic, from the classic “one voice” perspective on U.S. foreign affairs.  That “one voice” should be President Obama, and this seems to undermine the effectiveness of that one voice.  On the other hand, suppose he was careful not to say anything while in Honduras, but then he launches this broadside only when he got home. I suppose there is not a big difference now that everyone is reading it on the Internet anyway.

2) Harold Koh’s First Big Action:  A Crucial Analysis of Honduran Constitutional Law

DeMint reveals that U.S. policy, especially its view that the Honduran removal of its President was a “coup” rather than a legal constitutional process, depends on legal advice provided by State Department Legal Adviser Harold Koh.  The nature of his weird dispute with Honduras does depend a lot on the correctness of Koh’s view because if the removal was legal and constitutional, U.S. policy toward Honduras is very hard to justify.  Given that the Congressional Research Service has already concluded that the removal was legal (although the exile of President Zelaya was not), Koh’s advice may prove central.  So here is Koh’s first big impact on policy!  Honduran constitutional law! I would love to see this memo.  A FOIA request, anyone?

Shilling for the C-Pen 20 Scanner

by Kevin Jon Heller

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I don’t usually plug products on the blog, but I’m going to make an exception for the Ectaco C-Pen 20, the pen scanner that I’ve been using to organize the research for my book on the Nuremberg Military Tribunals:

I don’t know how others work, but I write a very detailed outline of an article and then cut-and-paste all of the quotes (and other information) that I need into the relevant section of the outline.  If I do my job right, that master document is all that I need to write the article itself — I don’t need to refer to, or lug around, the original sources themselves. The problem is that it’s a very time-consuming process, because I have to find some way to turn the quotes in the books, articles, and archival material I use into electronic text.  I used to do it the hard way — typing all of the quotes by hand.  But no longer!  Now I use my C-Pen.  It’s ugly, but it works incredibly well.  You use it like a highlighter: you place the pen on line of text you want to scan, push down gently until the light comes on, and drag the pen across the text.  The text then magically appears wherever you place the cursor on the computer screen — in a Word document, an Excel spreadsheet, etc.  The pen scans text as small as 5-pt and as large as 22-pt, works on almost any font (except very ornate ones), has no problem with highlighted text, and is very fast: you can scan just as quickly as you can highlight.  The angle takes a bit of trial-and-error to get right, but once you get the hang of it, its scanning is remarkably accurate — I average around 95-100% accuracy per paragraph of text.  The pen is also smart: if you are scanning multiple lines of text, it automatically eliminates the hyphens that break up words that extend over two lines, avoiding the need to go back and eliminate them manually.

I could go on, but you get the picture.  The C-Pen 20 is a remarkable device, and I highly recommend it for all academics and students.  (The pen is designed for PCs, but will work on a Mac that runs VMware or an equivalent.)  Best of all, it’s even relatively inexpensive: Amazon is currently selling it for $121.79 (US).

Why Did Barack Obama Receive the Nobel Peace Prize? My Theories and Your Vote

by Roger Alford

Today it was announced that Barack Obama has been awarded the Nobel Peace Prize. One cannot fully understand the reason for any Nobel peace award until December 10 (Nobel’s birthday), when the Laureate makes an acceptance speech and the head of the Nobel Committee explains their thinking in conferring the award. The official announcement alludes to the new climate that he has created in international politics. “Only very rarely has a person to the same extent as Obama captured the world’s attention and given its people hope for a better future.”

I think there are four possible interpretations of this award: (1) his achievements as President; (2) to promote global democracy; (3) as the culmination of the civil rights movement; or (4) as a symbol of the spirit of internationalism. Only the first theory is about Obama himself. The other three focus on Obama the symbol.

The first theory honors Obama for his own achievements as President. Three previous Presidents were awarded the prize for this reason: Theodore Roosevelt (1906) for brokering peace between Japan and Russia; Woodrow Wilson (1919) for his work as the principal architect of the League of Nations; and Jimmy Carter (2002) for his work in promoting peace, human rights and democracy. Roosevelt and Wilson won the award near the end of their terms of office, and Carter won it as a lifetime achievement award. It seems highly unlikely that Obama won the award based on the work he has achieved in his first 8½ months in office. In other words, the prize was not given to Obama for what he has done as President. The fact that the deadline for nominating Obama was February 1–eleven days after he took office–and that they decided to give it to him in his first year in office only underscores this point.

Another theory focuses on democracy, a factor expressly mentioned in the announcement. The Nobel Prize has been given to promote democracy with great frequency since the end of the Cold War. Among the Laureates in this category are Lech Walesa (1983), the Dalai Lama (1989), Aung San Suu Kyi (1991), Nelson Mandel and F.W. de Klerk (1993), and Kim Dae-jung (2000). When I was in Africa this past March, I spoke to numerous people about the election of Obama. They were all thrilled and I repeatedly heard the same message: “We now know that American democracy is real. We never thought that your country would elect someone like him.” Under this theory, the award is not about Obama, it’s about what he represents. It’s about the American people and their willingness to elect a minority candidate who came from nowhere to achieve the highest office in the world. It’s about our democratic system of government allowing it to happen at all.

A third theory is that the award is really about the arc of the civil rights movement and the struggle for racial equality. The election of Obama represents the culmination of a dream that many thought could never happen. The Nobel Committee has focused on this issue for decades, beginning in 1960 with the award to the South African tribal chief Albert Lutuli, then again with awards to the likes of Martin Luther King (1964), Desmond Tutu (1984), and Nelson Mandela (1993). As Mandela put it in his great Inaugural Address, “the time for healing of wounds has come. The moment to bridge the chasms that divide us has come. The time to build is upon us. We have, at last, achieved our political emancipation.” On this theory, the award is not about Obama, but what he represents as the crowning achievement of the struggle for racial equality.

The fourth theory is the one that appears most central in the Nobel Committee’s announcement. It is about the spirit of internationalism. The Committee emphasized his commitment to multilateral diplomacy and international institutions. The Nobel Committee has repeatedly focused on internationalism throughout its history. There are too many Laureates to mention, but among them are (1) those who worked to create the League of Nations—including Woodrow Wilson (1919), Léon Bourgeois (1920) and Robert Cecil (1937); (2) those who promoted the spirit of Locarno and the Kellogg-Briand pact—including Austen Chamberlain (1925), Gustav Stresemann (1926), Aristide Briand (1926) and Frank Kellogg (1929); (3) those who promoted or served with the United Nations—including Cordell Hull (1945), Ralph Bunche (1950), Dag Hammarskjöld (1961), the UNHCR (1954, 1981), Kofi Annan (2001) and Mohamed El Baradei (2005); and (4) those who generally promoted a spirit of internationalism through word or deed, a category that includes over a dozen laureates, including Bertha von Suttner (1905), Jane Addams (1931), Albert Schweitzer (1952), Georges Marshall (1953), Willy Brandt (1971), and Jimmy Carter (2002). Obama’s approach—particularly when juxtaposed with the Bush Administration—reflects a return to a spirit of internationalism that has been a hallmark of the United States for much of its history and that has always featured prominently in the history of the Nobel Peace Prize. Again, on this theory it’s not about Obama, but what he represents as one who is committed to internationalism.

Those are my best guesses as to why Obama won the award. Which one do you think is the most likely reason that Obama received the Nobel Peace Prize? Vote now:

Why Did Barack Obama Receive the Nobel Peace Prize?
His Achievements as President
He Symbolizes True Democracy at Work
He Symbolizes the Success of the Struggle for Racial Equality
He Symbolizes the Spirit of Internationalism

Free polls from

The U.N. Human Rights Council – Undermining the U.N. System Since 2006

by Julian Ku

This video from Anne Bayefsky of the Human Rights Council meetings on the Goldstone Report is fascinating (though I am not on board with her over-the-top attack on Goldstone personally).   But note the indiscriminate and  deeply hypocritical use of the words “genocide,” “war crimes,” and “crimes against humanity” by the least morally attractive member states of the HRC (How is it that Sudan is on the Human Rights Council denouncing Israel’s lack of accountability?).  Take genocide: even if every word of the Goldstone Report is true (a highly doubtful proposition), there is no evidence of an Israeli plot to commit genocide against the people in Gaza (e.g. an intent to exterminate a group of people based on their race or nationality).  One gets the feeling that there is no  matter what the report says (if indeed anyone on the HRC has read the report), those state members would jump up and accuse Israel of genocide and crimes against humanity.

Many defenders of the U.N. point out that the U.N. is much more than the Human Rights Council.  But, at least in American public opinion, this latest performance by the HRC will solidify the caricature of the U.N. as a ridiculous, hypocritical, bizarre, and obsessively anti-Israel institution.  And this caricature will have some basis in reality.

Targeted Killings and Incentives

by Kenneth Anderson

I’ve posted lots here about targeted killing, and written about it for publication, as well.  I’ll be on NPR’s All Things Considered today, in a story by correspondent Ari Shapiro, talking about targeted killings in relation to detention and interrogation.  (Now that I’ve seen the story, I see with pleasure that it also quotes Matthew Waxman, Vijay Padmanabhan, John Bellinger, and Monica Hakimi.  Cool lineup.)  My point is pretty straightforward – uncertainties in detention and interrogation policies, particularly for mid-level operatives in the CIA and intelligence agencies, partly created by the courts and partly created by other actors such as DOJ, have increased the incentives to kill rather than capture.  Not always by use of Predator missiles, as the Somalia raid using helicopters firing on a vehicle a few weeks ago pointed up, but an incentive to kill from a distance rather than seek to capture and interrogate for intelligence value.  I haven’t heard the story, which was pre-taped, but I have a high opinion of Ari Shapiro as a journalist, and I’m sure that apart from whatever little bit is my part of the story, there’s good stuff there.  But anyway there’s a link to it and a snippet at the NPR blog. Plus you can also read a set of very different views from mine in the excellent informal discussion over at EJILTalk! (Cross-posted to VC and CTLab.)

Keeping Perspective on the Law and Politics of Statehood

by Chris Borgen

While I agree with Julian that the interplay of law and politics on questions of statehood can lead to difficult questions, I think his declaration that “we still don’t know when a state is a state,” does more to obscure the issues than actually give a clear picture as to how law and politics affect each other. First of all, Julian is really talking about one specific set of circumstances: contested secessions. I’d like to expand on his post a bit and consider some of the issues.

I think Julian started-off on the wrong foot by asking:

Are the two breakaway sections of Georgia (South Ossetia & Abhkazia) states? If not, why is Kosovo a state?

Formulating the question this way makes it seem that there is a single repository of what is or is not a state. But of course that is not the case: each existing state individually chooses to recognize (or not recognize) other entities as states. To the United States, Kosovo is a state. To Russia, it is not. To Russia, South Ossetia is a state. To the United States, it is not. (That’s the short answer to Julian’s questions.)

It is not that international law is unable to define what is or is not a state, it is that the process of whether or not a particular state actually chooses to recognize another entity as a state is intertwined with politics. This isn’t the conclusion, it’s just the starting point…

Does the U.S. Believe Hate Speech is Protected Under International Law?

by Julian Ku

Anne Bayefsky of the Hudson Institute suggests that the U.S. is endorsing a less than robust view of the right to free expression in a recent Human Rights Council resolution sponsored by the U.S. (along with Egypt).  The resolution does appear to give an unusual amount of lip service to the combatting racism and discrimination (given its topic), but it seems pretty anodyne and harmless to me. Based on my reading, it doesn’t seem to depart too much (if at all) from current U.S. First Amendment law on free speech with its emphasis on the ability to restrict incitement to violence.  But someone more knowledgeable about this can correct me.  And it is ominous that folks are reading the resolution to endorse the “defamation against religion” cases that are big in Europe.

I sense the U.S. is basically looking for something non-controversial to say that would allow it to look like it was doing something positive at the Human Rights Council meeting (without actually doing anything substantive). I hope it succeeded.

We Still Don’t Know When a State is a State

by Julian Ku

Are the two breakaway sections of Georgia (South Ossetia  & Abhkazia) states? If not, why is Kosovo a state?

The difficulty international lawyers have in answering these questions suggests that the most basic and fundamental questions of international law remain unresolved and deeply contested.  What are the requirements for statehood?  There are some generally accepted criteria, under international law, but they remain difficult. What is the importance of self-determination? When does uti possetidis apply?  How can we distinguish between state practice based on opinio juris and state practice based on political considerations?

The ICJ is currently mulling over the Kosovo question (uh, don’t expect a decision for a while), and the Independent Fact Finding Mission on the Conflict in Georgia has taken a crack at analyzing these questions for the breakaway Georgian regions.  Their analysis, according to this column in the Guardian, seems pretty fair.  But international law doesn’t help the Independent Mission much.  Our own Chris Borgen is also on the case, but even he can’t quite give us an answer.

Talisman Energy — Amateur Hour at the International Law Improv

by Kevin Jon Heller

Assuming that the other Circuits follow suit, Roger is almost certainly right that the Second Circuit’s recent decision in Talisman Energy “will be the death knell for most corporate liability claims under the Alien Tort Statute.”  That’s regrettable in itself.  What’s particularly regrettable, though, is that the Second Circuit still has no idea what it’s talking about when it comes to the customary definition of aiding and abetting.  Here, in relevant part, is the court’s “analysis” (some citations omitted):

Thus, applying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone. Even if there is a sufficient international consensus for imposing liability on individuals who purposefully aid and abet a violation of international law, no such consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law. Indeed, international law at the time of the Nuremberg trials recognized aiding and abetting liability only for purposeful conduct. See United States v. von Weizsaecker (The Ministries Case), in 14 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 662 (William S. Hein & Co., Inc. (1949) (declining to impose criminal liability on a bank officer who made a loan with the knowledge, but not the purpose, that the borrower would use the funds to commit a crime). That purpose standard has been largely upheld in the modern era, with only sporadic forays in the direction of a knowledge standard. See Khulumani, 504 F.3d at 276 (Katzmann, J., concurring) (noting that some international criminal tribunals have made overtures toward a knowledge standard but that the Rome Statute of the International Criminal Court adopts a purpose standard). Only a purpose standard, therefore, has the requisite “acceptance among civilized nations” for application in an action under the ATS.

There is not a single accurate statement in this paragraph.  Let’s begin with the claim that “international law at the time of the Nuremberg trials recognized aiding-and-abetting liability only for purposeful conduct.”  Like the Second Circuit panel in Khulumani, the panel in Talisman Energy cites only one World War II case — and only one defendant in that case — in defense of that conclusion: the acquittal of the banker Rasche in Ministries.  I have explained before why Rasche’s acquittal is not indicative of the state of international law in the World War II era, so there is no need to repeat that explanation here.  Chimene Keitner has also explored the issue in her excellent article “Conceptualizing Complicity in Alien Tort Cases,” pointing out that Rasche’s acquittal is inconsistent even with the rest of Ministries itself (p. 89):

It is difficult to reconcile this result with the concurrent verdict in the trial of banker Emil Puhl, which is more consistent with other postwar cases. Puhl, deputy to the president of the German Reichsbank, knowingly took part in disposing of gold (including gold teeth and crowns) and other valuables looted from Holocaust victims. He was sentenced to five years’ imprisonment for his accessorial role in crimes against humanity, even though he apparently did not share the intent of theNazi perpetrators and in all likelihood found their actions “repugnant.

I will simply add a statement made by the NMT in Flick regarding a German industrialist’s financial contributions to the SS: “One who knowingly by his influence and money contributes to support thereof must, under settled legal principles, be deemed to be, if not a principal, certainly an accessory to such crimes.”

The claim that the “purpose standard has been largely upheld in the modern era, with only sporadic forays in the direction of a knowledge standard” is equally indefensible…

International Cases to Watch before the Supreme Court

by Roger Alford

With the Supreme Court term now underway, here is a summary of the most important cases that relate to international law. A few of the cases address fairly technical issues of statutory and treaty interpretation, while others have the potential to be quite significant for our discipline. I have organized the cases according to my sense of most important to least important.

Samantar v. Yousef. This case addresses whether a former government official acting in his official capacity enjoys immunity under the FSIA. It addresses the key question of whether current or former government officials are state instrumentalities within the meaning of the FSIA. Details here and OJ discussion here and here.

Graham v. Florida/Sullivan v. Florida. Graham and Sullivan both raise the issue of juvenile life without parole for non-homicidal crimes, with Graham involving a seventeen-year-old and Sullivan involving a thirteen-year-old. The Petitioner, Respondent, and numerous amici on both sides raise international and comparative law issues. This could be the most important case since Roper on the use of constitutional comparativism. Details here and here.

Holder v. Humanitarian Law Project. Great case addressing whether the definition of “material support” for terrorists organizations is unconstitutionally vague. Plaintiffs are a group of organizations that would like to pursue peaceful assistance to terrorist groups such as the Tamil Tigers or the Partiya Karkeran Kurdistan (PKK). The statute appears to prohibit any service of any type to a terrorist organization. Details here and OJ discussion here.

Abbott v. Abbott. This case involves treaty interpretation under the Hague Convention on International Child Abduction. The question presented is whether a ne exeat clause (that is, a clause that prohibits one parent from removing a child from the country without the other parent’s consent) confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction. The case includes an amicus brief filed by the Hague Conference on Private International Law. Justice Sotomayer was on the opinion below writing in dissent. Details here and OJ discussion here.

Padilla v. Kentucky. The case involves the immigration consequences of felony guilty pleas. The question presented is whether defense counsel, in order to provide the effective assistance guaranteed by the Sixth Amendment, has a duty to investigate and advise a non-citizen defendant whether the offense to which the defendant is pleading guilty will result in removal. The United States’ brief supports Kentucky, arguing that the Sixth Amendment does not require advice as to the immigration consequences unless failure to do so would result in prejudice. Details here.

Kucana v. Holder. The case involves a jurisdiction-stripping statute the precludes federal review of certain types of immigration appeals. It also involves bizarre facts: Kucana was ordered to be deported because he was late to a scheduled hearing, having slept through his alarm. In addition, under the Obama Administration, the United States has switched positions from the Bush Administration’s position and is arguing against his deportation. In other words, neither the United States nor Kucana want him deported! Details here.

International Law Weekend 2009, October 22-24, 2009

by Chris Borgen

The following was sent to us by the American Branch of the International Law Association:

The American Branch of the International Law Association will hold its annual International Law Weekend, in conjunction with its 88th Annual Meeting, in New York from October 22-24, 2009. Registration is free for students, members of the American Branch, and cosponsoring organizations (including the ABA Section of International Law and the American Society of International Law); for others, the registration fee is $75.00. To register, visit

The theme for the conference is “Challenges to Transnational Governance.” The plenary session for the conference and the opening reception will take place on Thursday, October 22, at the Association of the Bar of the City of New York, 42 West 44th Street in New York City. The opening session will focus on efforts to reform the United Nations Security Council, including the initiation of intergovernmental negotiations in March of this year. Confirmed participants include: the Deputy Permanent Representative of the Mission of the United States to the United Nations, Ambassador Alejandro D. Wolff; the Permanent Representative of the Mission of Sierra Leone to the United Nations, Ambassador Shekou M. Touray; and Professor Joseph E. Schwartzberg of the University of Minnesota. The panel’s moderator will be Professor Jose Alvarez of Columbia University Law School.

On Friday and Saturday, the conference’s venue shifts to Fordham University School of Law, 140 West 62nd Street in New York City. The conference schedule includes thirty-three panels, traversing a wide spectrum of contemporary international law, including international criminal law, human rights law, international environmental law, international economic law, commercial law, and trade law. Several of the panels during these two days focus on the conference’s theme of transnational governance, including “The Contribution of the International Law Commission to Transnational Governance,” “Transnational Governance/Regulation in Global Competition Law Enforcement, “Democratic Process in International Law: State Practice and Non-State Actor Access,” “Transnational Legal Orders: International Trade Regimes and Domestic Regulatory Policy,” and “The Role of International Environmental Law in Transnational Governance.” The keynote speaker at the annual luncheon on Friday, October 23, at 12:30 p.m., will be Lucy Reed, who will speak on the topic “Not-So-Fine Lines in Transnational Governance: Blurring of Public and Private in the International Legal Order.” Ms. Reed is a partner with Freshfields Bruckhaus Deringer LLP, co-head of its global arbitration group, and President of the American Society of International Law.

On Friday evening, the Annual Gala Reception will be hosted at the residence of the Deputy Permanent Representative of the United Kingdom to the United Nations, 510 Park Avenue, 11A in New York City.

Several organizations are cosponsoring the American Branch’s ILW 2009:

• American Bar Association Section of International Law
• American Society of International Law
• American University, Washington College of Law
• California Western School of Law
• Canadian Bar Association
• Customs and International Trade Bar Association
• Debevoise & Plimpton LLP
• Federalist Society
• Fordham University School of Law
• Freshfields Bruckhaus Deringer LLP
• The George Washington Law School
• Hofstra University School of Law
• ILSA Journal of International and Comparative Law
• Leitner Center for International Law and Justice
• Oxford University Press
• Seton Hall University School of Law

The International Law Students Association is joining the American Branch in organizing ILW 2009.

Peggy and Julian will be on a Friday panel “Are We Still Allowed to reject Transnational Norms;” I’ll be on a Saturday panel called “Challenging Territorial Sovereignty: Secession, Autonomy or Status Quo: Kosovo, South Ossetia, Abkhazia, Moldova, and Tibet.” If you come by to ILW, please stop by to say hello! (The full list of panels, by the way, is available in a link from this page.

And Then the Future of the IMF

by Kenneth Anderson

Here’s a follow-up to Julian’s question about the World Bank – what’s the future role of the IMF?  Interesting news story in the WSJ over the weekend on whether the IMF might become, as its chief would like, a quasi-central bank to the world – or instead, as the article suggests is the tenor of the G 20 meetings, a sort of administrative staff of the G 20.  I live on a cul de sac in DC where the neighbors have, during a period of years, nearly all been either IMF or Bank senior staff, so I’ve had these discussions a lot and close to home over the years.  I don’t actually think things will work out along either of those paths with respect to the IMF; successful central banking requires a central government.  And although the IMF might be very interested in becoming the administrative arm of the G 20, the problem lies with the undefined nature of the G 20, irrespective of the IMF.  The G 20 couldn’t function as a policy body when it was the G3, G7, G8, G x.  Apart from multiplying parties with, if anything, a greater disparity of economic conditions and fundamental economic interests, what has changed?  My guess is that the IMF will elaborate a role in fact, as opposed to its annual confabs, in which it does what it has done reasonably well in the current crisis – facilitate the liquidity bailout of smaller, but not truly basket-case, economies, such as Eastern Europe, Iceland, the Baltics, places like that.  That seems like a lot on its plate, frankly, just with that task.

Is the World Bank “Too Big To Fail”?

by Julian Ku

Via Instapundit, I notice that the World Bank is facing capital shortfalls that could put out of “business” in twelve months.

“By the middle of next year we will face serious constraints,” said its president Robert Zoellick, as he launched a major campaign to persuade rich nations to pour more money into the Washington-based institution.

He conceded that such a task was likely to be extremely difficult, given the difficulties facing countries in the wake of the developed world’s biggest recession since the Second World War. However, Mr Zoellick, speaking at the opening of the IMF and World Bank annual meetings in Istanbul, said the Bank needed a capital increase of as much as $11.1bn (£6.9bn) to keep functioning. He said he hoped that its shareholders, including the UK and other leading nations, would decide on resources before its spring meeting next April.

In the grand scheme of things, $11.1 billion is not that much, especially divided between the various shareholders of the World Bank. Still, this might be a good opportunity to assess what exactly the World Bank is doing and whether it really is all that vital.  I have my doubts.  Congress might decide to get a bit stingy here since they would have to OK any further American investment in the World Bank.  Then again, they haven’t exactly been very stingy with the other banks.  Is there any TARP money left?

Opinio Juris (Plus One) Takes on Professor Michael Stokes Paulsen

by Julian Ku

In the inaugural issue of the Yale Law Journal Online, the new online companion to the Yale Law Journal, Peggy McGuinness, Peter Spiro, Robert Ahdieh and I respond to Professor Michael Stokes Paulsen’s recent article:  “The Constitutional Power to Interpret International Law.” All of us are critical, although in different ways. I am the most sympathetic to Paulsen, but even I have some disagreements.

Catching Up With the Critics

by Deborah Pearlstein

I feel as though I should start by apologizing from my mini-blogging hiatus. Nothing like prepping a new course to distract one from the trials of law outside the classroom.

Thanks to my Opinio Juris colleagues Julian Ku and Ken Anderson, as well as Ben Wittes, among others, there’s ample reason for re-engaging.  As Julian and Ken have noted with approval, Wittes wrote in the Post this week to attack the Obama Administration’s apparent decision not to seek new “preventive” detention legislation as it goes about the necessary business of closing Guantanamo. The essence of Wittes’ critique is the thesis he’s pursued in more than one book over the past few years: If we’re going to be in the business of counterterrorism detention (as surely we should be), far better to have the contours of those rules (who may be detained, and pursuant to what set of procedures) set forth in clear legislation, rather than settled piecemeal by the courts. Not to do so at this stage, according to Ben, amounts a presidential endorsement of the views of Dick Cheney.

Here’s why I continue to think that Ben is wrong, that the President is right, and that the actual Dick Cheney approach just suffered another blow.

Are Former Government Officials Immune Under the FSIA?

by Michael Granne

[Michael Granne is a Visiting Assistant Professor at Hofstra Law School and has recently published Defining “Organ of a Foreign State” under the Foreign Sovereign Immunities Act of 1976 in the UC Davis Law Review.]

Greetings, all! I’d like to thank Julian and the rest of the OJ team for asking me to participate here. The Foreign Sovereign Immunities Act is a favorite of mine, so I look forward to some discussion on this and in the future.

Yesterday, the Supreme Court granted cert in Samantar v. Yousuf, a Fourth Circuit case that held that the Foreign Sovereign Immunities Act (FSIA) did not apply to former government officials even if they were being sued for actions within their official capacity. The various plaintiffs allege horrible mistreatment, including torture, rape and murder, by Somali government actors, with “the tacit approval and permission of the Armed Forces and their commander, Defendant Samantar.” Samantar, who served as the Minister of Defense and, subsequently, as Prime Minister of Somalia until 1990, fled Somalia after the Barre regime collapsed in January 1991. Samantar eventually resettled in the United States and now lives in Virginia. Plaintiffs sued under the Alien Torts Statute and the Torture Victim Protection Act of 1991, alleging that Samantar is liable for the actions of the military and other government actors under a theory of command responsibility, as he “knew or should have known” about the various and sundry abuses committed by his subordinates.

In Samantar, the Fourth Circuit decided two questions in the plaintiffs’ favor that each raise a circuit split. First, joining the Seventh Circuit, the court held that individuals are not included in the FSIA’s definition of “agency and instrumentality” in §1603(b). This conflicts directly with cases from the Second, Fifth, Sixth, Ninth and D.C. Circuits, all of whom have held that individuals can be included in the “agency and instrumentality” portion of a “foreign state.” Second, even if individuals were included, the court held that the FSIA would not apply to prevent suits against former officials who were no longer members of the government, creating a conflict with the D.C. Circuit.

In splitting from the majority view, the Fourth and Seventh Circuits take a fundamentally different approach. They each closely analyze the text of §1603(b) and recognize, quite correctly in my view, that it makes no sense to include individual within “agency and instrumentality.” The other five circuits have taken a functionalist view, which reaches a contrary conclusion. Those courts held that to allow such suits would create an end-run around FSIA immunity by allowing plaintiffs to sue officials of governments that were otherwise immune from suit. Thus, individuals acting in their official capacity must be covered.

Both arguments contain some intuitive appeal. On the one hand, the text of §1602(b) must, indeed, be stretched to include individuals. It refers to separate legal personhood, hardly normal usage regarding human beings, and asks under which law an agency or instrumentality was created and whether it would be a United States citizen by reference to the corporate diversity jurisdiction provisions, §1332(c) and (e). On the other hand, however, it makes little sense to bar suits against Somalia, but allow them against its officials. It would vitiate much of the protection that the FSIA offers and create the potential for considerable interference with foreign relations.

The second issue is whether, if one assumes that the FSIA does cover individuals, a former official would be covered after having left office. Plaintiffs naturally look for inspiration to Dole Food Co. v. Patrickson and, to a lesser extent, Republic of Austria v. Altmann, which both focused on the time at which the suit was brought, rather than that at which the actions occurred. Patrickson in particular is persuasive as it dealt with the temporal restrictions on determining ownership of a corporation under the agency/instrumentality definition, just as Samantar potentially seeks to be considered an individual agency/instrumentality. Samantar argues, in response, that the actions of former subsidiaries are less embarrassing to the government than the actions of former individual officials, an argument that may have some truth to it, but does not convince the Fourth Circuit.

There are several interesting additional questions that this case poses. First, in focusing on the agency/instrumentality part of §1602, the court and seemingly the parties ignore the argument that individuals, when acting within their official capacities, may simply be part of the foreign state itself. The definition of “foreign state” in §1603(a) “includes agencies or instrumentalities,” which, as noted, must be stretched if it is to include individuals. The definition of “foreign state” contains no such constraints. The fact that legal persons are included under the agency/instrumentality definition does not preclude the inclusion of natural persons elsewhere; indeed, it does not argue one way or the other. In a sense, this argument avoids the legal end run that these cases present—they see through the fiction that it is a suit against the individual, rather than the state itself. This obviously addresses the policy concerns raised by the five circuits that covered individuals within the FSIA’s cloak. It also avoid the linguistic gymnastics that would be necessary to force individuals within §1603(b).

The second issue is whether there is, in fact, a concrete distinction between the treatment of corporations and individuals under the FSIA. There is one that jumps out as crucial to the FSIA. A foreign state, like a corporation, cannot act except through its natural person officials. All Foreign state actions, therefore, must involve individuals; any law suit that calls into question the official acts of those officials, whether current or former, has the potential to embarrass, annoy or otherwise interfere with the United States’ foreign relations with that sovereign. This is in direct contradiction with the chief purpose of the FSIA, to avoid interference with the conduct of American foreign relations. Conversely, the ties between a majority-owned subsidiary and the foreign state are largely financial and do not automatically impugn the actions of the state itself. Once those financial ties are severed (or lessened) so too does the effect on the foreign state. The corporation does not act as the state, nor does the state act usually through it. (Some states do, indeed, manage large portions of their affairs through subsidiary corporations—these entities may still be organs of the foreign state, even if not majority-owned subsidiaries, entitled to treatment as the foreign state under the FSIA.) Thus, disparate treatment of individuals and corporations under the agency/instrumentality definition may be warranted.

Finally, one could argue that the corollary to a corporation’s ownership for Patrickson’s temporal purposes would be the official character of the actions of the individual. For Samantar, the current Somali government, such as it is, maintains that his actions were solely of an official nature in line with government policy. That characterization, rather than his status as a current or former employee of the government, is more closely tied to the goals of the FSIA. Lawsuits attacking acts by former officials that the state itself characterizes as properly official would create far more interference with the conduct of foreign relations than lawsuits against current officials that the foreign state admits were ultra vires. Using the characterization of the action as official, rather than the employment status, as of the filing of the lawsuit would more closely cleave to the purposes of the FSIA.

Notes from the ESIL-ASIL Conference

by Duncan Hollis

It’s Day 2 of the First Ever! (people keep emphasizing this) joint ASIL-ESIL Research ForumJan Klabbers who seems the chief (but by no means the only) organizer has done Helsinki proud in terms of the site and the conference structure.  It’s been a remarkably solid event; unlike ASIL all the speakers were required to submit abstracts AND papers as the basis of their remarks.  This is generally a good thing, as it’s obvious speakers (and even the Chairs) have taken the time to think both about the paper and the panel in which they appear.  This, in turn, has generated some great discussions on the science of international law (think political science not the old-school views ala Kelson of science as international law) and science in international law (i.e., what do lawyers do when science drives an international law obligation?)

My own panel on interpretation went well (at least I thought so), with panelists discussing the ability of using interpretative approaches in political science to explain international law (Basak Cali), how jurists should interpret science to produce rational legal decisions (Dirk Pulkowski), and how to use interpretation as a heurmeneutic tool of coordination to overcome the battle for control in scientific disputes such as the US-EU battle over the risks posed by hormones in food (Sungjoon Cho).  All three papers are worth reading, so keep an eye out for them when they hit SSRN or publication.  Cali’s paper in particular lays out an interesting response to the challenge of rational choice scholars that if you don’t agree with their rational choice theory, what’s the alternative? Cali proposes an interpreative approach conceptualizing both mixed motives for states that can conflict, and contending that the harmony AND conflict among these motives drives state action.  It’s a theory still in its formative stage, but it has the potential to add an interesting alternative to the existing range of responses to rational choice ideas in international law.  

The conference papers are in draft form so not publicly available.  But let me quickly highlight a few others worth looking out for when they become more publicly available in paper form: 

Tomer Broude presented a paper, Behavioral Economics and International Law, trying to theorize whether a “research agenda challenging assumptions of rational choice analyses of international law, not through alternative (and imprecise) paradigms of sociology and constructivism, but through a meta-methodology of applying the experimental insights of cognitive psychology and behavioral economics to international legal issues.  This is a new approach to international law that has only been sporadically applied but never methodologically explored, yet has potentially significant implications in virtually every area of international law.  However, in order to avoid the difficulties faced by rational choice theory, a behavioral approach to international law must be pursued with both academic rigor and intellectual humility.”

Nicole Ahner, presented a paper, Final Instance: World Trade Organization–Unilateral Trade Measures in EU Climate Change Legislation, assessing proposals for EU “trade restrictive border measures under the auspices of environmental protection, whose purpose is at least inter alia to ‘level the competitive playing field’ for the European carbon-intensive industries?” Simply put, the paper assesses new EU proposals for trade regulation in light of WTO case law (think Shrimp), and how a WTO dispute might proceed.  The paper also asked if the WTO should be the “final instacne for deciding the legality of European climate change legislation measures”? 

I’ll try and flag a few more papers/presentations as the conference comes to a close later today.

Second Circuit Adopts Purpose Test for ATS Corporate Liability

by Roger Alford

Today the Second Circuit issued the long-awaited decision of Presbyterian Church of Sudan v. Talisman Energy. The case–written by a Bush 41 appointee (Jacobs) and joined by two Clinton appointees (Leval and Cabranes)–is important for many reasons, but it is especially important in (1) accepting the possibility of corporate liability under the ATS, (2) accepting that international law rather than domestic law is the source for determining aiding and abetting liability, and (3) limiting such liability to corporate conduct that has the purpose of aiding and abetting the government in violating human rights. Here is the key excerpt:

[A]pplying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone. Even if there is a sufficient international consensus for imposing liability on individuals who purposefully aid and abet a violation of international law, no such consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law…. Only the purpose standard … has the requisite ‘acceptance among civilized nations’ for application in an action under the ATS…. Therefore, in reviewing the district court’s grant of summary judgment to Talisman, we must test plaintiffs’ evidence to see if it supports an inference that Talisman acted with the ‘purpose’ to advance the Government’s human rights abuses.

My initial impression of the opinion is that it creates an intent hurdle that will be extraordinarily difficult for plaintiffs to overcome. Plaintiffs must show that a corporation had the intent to assist in the violation of human rights. The Court went further and held that while “there may well be an ATS case in which a genuine issue of fact as to a defendant’s intent to aid and abet the principal could be inferred; but in this case, there were insufficient facts or circumstances suggesting that Talisman acted with the purpose to advance violations of international humanitarian law.”

If this case stands, it will be the death knell for most corporate liability claims under the Alien Tort Statute. It will be especially difficult to sustain such a burden when one combines the Iqbal pleading standard of plausibility with the Talisman standard of purposeful intent to commit a human rights violation.

Congratulations to Diane Orentlicher

by Kenneth Anderson

Actually, congratulations to the Obama administration for having the good sense to make this appointment.  My friend and Washington College of Law colleague Diane Orentlicher has joined the administration in DOS, and I don’t think there’s a better person in the country to fill this position:

Professor Diane F. Orentlicher has been named Deputy, Office of War Crimes Issues for the U.S. Department of State. The Office of War Crimes Issues, led by Ambassador-at-Large Stephen Rapp, advises the Secretary of State directly and formulates U.S. policy responses to atrocities committed in areas of conflict and elsewhere throughout the world.

“Diane’s pioneering contributions to the law of accountability and war crimes make her a perfect choice for the Office of War Crimes Issues,” said WCL Dean Claudio Grossman. “We are certain that her appointment will further an important agenda for the rule of law in U.S. foreign policy.”

The Office of War Crimes Issues coordinates U.S. Government support for war crimes accountability in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Iraq, and other regions where crimes have been committed against civilian populations on a massive scale. The office works closely with other governments, international institutions, and non-government organizations, and with the courts themselves, to see that international and domestic war crimes tribunals succeed in their efforts to bring those responsible for such crimes to justice.

“I am deeply honored by this appointment and excited by the prospect of working with Ambassador Rapp in tackling some of the most urgent and challenging issues of our time, including the sweeping impunity that has made sexual violence a fundamental feature of armed conflict,” Orentlicher said. “The Office of War Crimes is uniquely placed to influence these issues and I look forward to the work ahead.”

Orentlicher is co-director of the Center for Human Rights and Humanitarian Law at Washington College of Law.  From 1995 to 2004, she served as faculty director of the law school’s War Crimes Research Office, which has provided legal assistance to international criminal tribunals since 1995.

Described by the Washington Diplomat as “one of the world’s leading authorities on . . . war crimes tribunals,” Orentlicher has lectured and written extensively on the scope of states’ obligations to address mass atrocities and on the law and policy issues relating to international criminal tribunals and universal jurisdiction. She has served as an independent expert and consultant to the United Nations in various capacities relating to the UN’s efforts to combat impunity. In September 2004, Orentlicher was appointed by the United Nations Secretary-General as Independent Expert to update the UN’s Set of Principles for the protection and promotion of human rights through action to combat impunity. She has a BA from Yale and JD from Columbia.

Many Generalizations about International Law Professors …

by Kenneth Anderson

… in my response to Eugene on the First Amendment and free speech and the HRC, over at Volokh.  I’m not cross-posting it here because it is somewhat specific to Eugene’s post.  However, it is filled with many generalizations and unsupported assertions about what I think international law professors, taken as a community, think about free expression and the specifically American First Amendment and hate speech.  I wouldn’t want anyone to think that I was hiding the ball, so to speak, in saying one thing at Volokh and another here at OJ.

However – quite separate from the not-entirely-kind things I say about Our Intellectual Community – and in response to the complaints of commenters that I’m making unsupported assertions, I have a little update on the ethics of blogging and wondering when it’s okay to make unsupported assertions.  For those of us who blog, it’s often a question – it’s a blog post, after all, not an academic article, and if you had to do it like true scholarship, you wouldn’t blog, or at least would only blog when you had done lots and lots of research.  But it invites commenters to say, what’s your support? Sometimes – as in that post – I want to say, this is my subjective view, based on having been active in this community for a long time, although your mileage may vary.

SCOTUS to Consider Foreign Sovereign Immunity for Former Government Officials

by Julian Ku

The U.S. Supreme Court has granted certiorari in Samantar v. Yousef, a lawsuit by Somalis who alleged torture and mistreatment by a former Somali prime minister.  Here is the issue:

Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.

This could be a pretty important case in the FSIA context, from both a development of the FSIA point of view and as a purely practical matter for Alien Tort Statute lawsuits.

Helsinki is Hopping!

by Duncan Hollis

Well, I don’t know that for sure yet — I only just got in from the airport an hour ago. But it sure is beautiful this time of year. I am here for what looks to be a great conference — the first academic forum (i.e., workshop) jointly organized by the American Society of International Law and the European Society of International Law.  The theme of the forum is Changing Futures? Science and International Law. The line-up of panels is accessible here. I’m chairing a panel on Hermeneutics and Treaty Interpretation tomorrow afternoon that looks like it will engage in some pretty interesting theoretical questions about competing political science methods for studying international law as well as the competing ways science is understood in interpreting international law.  There’s a lot else going on though; for example, I’m really looking forward to a planned discussion between Martti Koskenniemi and Friedrich Kratochwil looking back together at their earlier work.

I may try and blog more about the Conference as the weekend progresses, time permitting.  And, of course, if you’re a regular Opinio Juris reader and you’re here in Helsinki for the Conference, please say hello; it’s always nice to meet readers in person.

An Obama Policy I Can Support: A Peace Deal in Sudan

by Julian Ku

Here is one part of the Obama Administration policy that I can (sort of) support: an effort to reach a comprehensive sustainable peace agreement in Sudan.  Although the Obama envoy, Scott Gration, is getting plenty of deserved flak from right and left for his infamous “cookies” quote about dealing with the Sudanese government, the general idea seems sound. Absent any will in the United States or in Europe for a military intervention to overthrow the government of Sudan, the best way to save lives and end the suffering there is a comprehensive peace agreement.

Is this a morally reprehensible policy to deal with an indicted war criminal?  Yes….but it is also morally reprehensible to refer action to the ICC, and then do absolutely nothing to carry out the ICC’s warrants except complain and try to isolate Sudan.  The government goes on and people continue to die and suffer.  Sure I would prefer to arrest Bashir, put in a new government, and end the suffering in Sudan.  But the realist in me knows that is not going to happen (and especially not with this President).

Making deals with morally reprehensible leaders was always going to be at the heart of the much vaunted Obama engagement policy.  Is it morally reprehensible to make deals with a confirmed and repeated Holocaust denier who has arguably incited genocide like the President of Iran? Yes, but engagement with someone like him is clearly part of the Obama policy.  The leader of North Korea, Kim Il Sung, has his own crimes to answer for.  But all of them, under the Obama theory of engagement, must be engaged.  So why not Bashir?

I suppose the answer is that Bashir is wanted by the ICC, but the others are not. But I don’t think, at this point, an ICC arrest warrant is a meaningful measurement of comparative moral reprehensibility, especially for Security Council referrals that are by their nature political.

So if one complains about dealing with Bashir, one should also complain about dealing with Iran and North Korea.  There are some folks who might make the across the board complaint (they are called neocons).  But many folks are split on this.  But they shouldn’t be.