Archive for
January, 2010

Our Upcoming YJIL Discussion

by Kenneth Anderson

A note to our readers:  I inadvertently jumped the gun a bit in my earlier post about the Security Council and raised Professor Michael Glennon’s YJIL article, The Blank Prose Crime of Aggression, on which Kevin has also commented.  We imagine that some readers will also want to weigh in.  It turns out that in March, we will be discussing the article as part of the regular symposium with YJIL, including Professor Glennon and several outside commenters.  So I am going to propose that we treat the posts below as a teaser for the March symposium which, clearly, promises to be very lively, and hold off on saying more until we reach March.

Thoughts on Glennon’s “Blank-Prose Crime of Aggression”

by Kevin Jon Heller

I want to offer two thoughts on Glennon’s article, which — though I am generally skeptical of the ICC’s attempts to define the crime — I find anything but convincing.  The first has to do with his central thesis: that the Special Working Group on the Crime of Aggression’s proposed definition of aggression “would constitute a crime in blank prose — one that would run afoul of basic international human rights norms and domestic guarantees of due process in its disregard of the international principle of legality and related U.S. constitutional prohibitions against vague and retroactive criminal punishment” (p. 72).  Readers should be skeptical of that thesis for many reasons, but one reason looms particularly large — Glennon does not even mention, much less discuss, the SWG’s proposed elements of the crime of aggression.  The Elements of Crimes were adopted precisely to minimize nullum crimen problems with the definitions of crimes in the Rome Statute, and they remain perhaps the most positive legacy of the US’s involvement in the establishment of the ICC.

The SWG has debated the elements of the crime of aggression for a number of years.  The most recent formulation was distributed in a 28 May 2009 non-paper by the Chairman:

Article 8 bis
Crime of aggression

Introduction
1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.
2. As a result of Element 4, there is no requirement to prove that the perpetrator has made a legal evaluation as to the inconsistency with the Charter of the United Nations of the use of armed force by the State.
3. With respect to Elements 5 and 6, the term “manifest” is an objective qualification.
4. As a result of Element 6, there is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation.

Elements
1. The perpetrator planned, prepared, initiated or executed an act of aggression.
2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.
3. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed.
4. The perpetrator was aware of the factual circumstances establishing the inconsistency of the use of armed force by the State with the Charter of the United Nations.
5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.
6. The perpetrator was aware of the factual circumstances establishing such a manifest violation of the Charter of the United Nations.

Glennon may very well believe that these elements do not cure the crime’s supposed nullem crimen problems.  I might even be sympathetic to his critique — I’ve made my problems with the proposed elements known to the Australian delegation to the SWG.  But I cannot see how anyone can claim that the crime of aggression is impermissibly vague without even addressing the proposed elements.  Indeed, it appears that Glennon does not even realize that they exist.  How else do we explain his statement that “[p]otential defendants have a right to know the specific elements of a crime before their conduct occurs — not when they are charged or tried, after a consensus has finally emerged” (p. 111-12)?

U.S. Supreme Court Can’t Wait to Say More About the Geneva Conventions

by Deborah Pearlstein

Cross-posted at Balkinization

Ok, the headline is a bit misleading. It’s only two justices – Scalia and Thomas – who, in dissenting from a denial of certiorari by the Supreme Court this week, argued that the Court should settle once and for all whether detainees can invoke the Geneva Conventions in federal court. Lyle Denniston, as usual, reports the dissent-from-denial here, and he includes a link to Justice Thomas’ 15-page opinion, which is itself well worth a read. Heck of an opinion.

In essence, Justice Thomas (joined by Justice Scalia) argues that the Court should have granted review to an appeal by former Panamanian dictator Manuel Noriega, who claimed that Geneva barred the United States from extraditing him to France to face drug crime charges in that country. Noriega had completed his sentence following criminal conviction under U.S. law, and ordinarily extradition under such circumstances would not be barred. But recall that Noriega had originally been captured by U.S. military forces operating in Panama in 1988. Responding to claims Noriega raised early in his criminal sentence about what treatment he would face in U.S. prison, a district court judge had ruled that the hostilities in which Noriega was seized constituted an “armed conflict” within the meaning of the Third Geneva Convention, that Noriega was a member of the armed forces of a party to the conflict, and that he was therefore entitled to POW protections regarding conditions of confinement. For various reasons, that decision was never especially contested. Fast forward 20+ years. Noriega’s criminal sentence is now over, and he is arguing – in a collateral petition for habeas corpus – that Geneva gives him a right to repatriation to his home country now that the relevant armed conflict is over, and extradition to France would violate that right.

Having garnered only two (of the required four) votes to take the case, Justice Thomas lamented the Court’s decision to deny cert. The Court should’ve granted review to “provide much-needed guidance” on issues “with which the political branches and federal courts have struggled since we decided Boumediene [recognizing the constitutional right of Guantanamo detainees to seek writs of habeas corpus in federal court].” As Justice Thomas notes: “It is incumbent upon us to provide what guidance we can on these issues now. Whatever conclusion we reach, our opinion will help the political branches and the courts discharge their responsibilities over detainee cases, and will spare detainees and the Government years of unnecessary litigation.” Why would this case have any relevance for the Gitmo detainees, none of which to date has been designated a “prisoner of war”? Because, says Justice Thomas, one of the government’s arguments before the 11th Circuit below was that Noriega’s claim was barred by Section 5 of the Military Commissions Act of 2006 (a provision amending the habeas statute directly and therefore untouched by the new Military Commissions Act of 2009). Recall that Section 5 provided as follows: “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” Noriega had argued that Section 5 is, among other things, unconstitutional. But if the provision is constitutional, and if Noriega can no longer “invoke” Geneva on habeas, then his case (and, Justice Thomas appears to hope, those of many of the Gitmo detainees) would certainly be over.

I’ve written elsewhere about some of the many problems surrounding Section 5 (including its implications for the “judicial power”), so won’t much rehash them here. The dissent is remarkable for reasons well beyond its unsurprising attraction to Section 5. Probably most striking is that in its rush to urge the Court’s engagement in the case, the dissent opens by invoking Marbury v. Madison itself: “[I]n our tripartite system of government,” it is the duty of this Court to “say ‘what the law is.’” When was the last time the Court’s conservative wing seemed so keen to give guidance to the political branches on the matter of how to exercise its “war powers,” so to speak? Guess it’s all about the judicial power now.

Also impressive are the lengths to which the 15-page dissent-from-denial goes to establish that the Geneva Conventions in general are mentioned in any number of government decisions of late – so as to further demonstrate, I take it, that the political branches would benefit from the Court’s clarification here. After mentioning a handful of lower court decisions involving Gitmo detainees (while later, in a footnote, acknowledging that those cases don’t actually address the question of Section 5’s validity presented in this case), the opinion mentions the President’s Executive Order of last year mandating that Common Article 3 of the Conventions (prohibiting torture, cruel treatment and the like) provide the “minimum baseline” for the treatment of any detainee in U.S. custody. And the opinion notes that Congress is considering – but has not yet actually acted upon – other legislation that might also implicate the rights of detainees under the Geneva Conventions. I am not aware of any litigation “invoking” Geneva to challenge the President’s decision to recognize detainees’ entitlement to Common Article 3 protections. I am also not familiar with any Court decisions that aim preemptively to clarify an issue of law so that Congress might more easily legislate about it. (Examples to the contrary most welcome.) I do, however, recall someone’s old thought about how the Court wasn’t going to engage in the issuance of advisory opinions. Could be Justice Thomas thinks it’s time to revisit that question.

In more concrete terms, the dissenters see the value of taking the Noriega case now as centrally tied to the Court’s ability – through evaluating the validity of Section 5 – to shed light on “the contours of the substantive and procedural law of detention” affecting the Gitmo detainees that the Court left vague after Boumediene. True enough, Boumediene did not decide which if any of the Gitmo detainees could be lawfully held under the substantive law of armed conflict detention. Yet it is not at all clear that Section 5 has any bearing at all on the scope-of-detention cases now working their way through the courts below. As all of the lower courts to face the question have held, who the government may detain in the ongoing conflict turns on a reading of the statutory Authorization for the Use of Military Force passed in late 2001. It is true that the courts – and the Administration – have recognized that the Geneva regime, as well as other relevant international law, can properly inform the courts’ understanding of the meaning and scope of that statute. But this indirect reliance on the Geneva Conventions – as an aid to interpreting a federal statute – seems at least arguably different from the reliance Congress aimed to target in Section 5 – namely, detainees invoking Geneva as a “source of rights.”

In all events, the reasons that likely led the other 7 justices on the Court to decide against taking this case seem inescapably salient. Most important, deciding any number of weighty and complex Section 5 issues would make no difference in the outcome for Mr. Noriega. That is, even if Noriega is properly designated a POW and even if the treaty is enforceable in every respect in federal court, he’d still lose on the substance of his claim that he can’t be extradited post-conflict to face criminal trial. As the appeals court noted in rejecting Noriega’s Geneva claim, (and as the Obama Administration argued in asking the Court to deny cert), while Geneva Article 118 requires the prompt repatriation of POWs at the end of hostilities, Article 119 authorizes the detention of POWs against whom criminal proceedings are pending. Proceedings are effectively pending against Noriega in France. There’s just no winning claim here. Add to that the uniqueness of Noriega’s particular circumstance – his apparent status as sole U.S.-held detainee designated a POW; and the Solicitor General’s own, traditionally weighty, opposition to the Court’s taking the case – and one has a classic case for cert denial. I suspect it’s a good thing a majority of the Court agreed.

Contracting Around the Security Council

by Kenneth Anderson

As we get closer to the review conference on the ICC, many of us have been watching, and perhaps commenting on, ways in which the US might or might not take part as an observer.  It seems certain that the US will be an observer at the review conference, and the primary issue on the table for the conference is the crime of aggression.  My own view of this is that the whole effort is a mistake – essentially for the reasons that Michael Glennon lays out in his fine new Yale International Law Journal article, The Blank Prose Crime of Aggression.  However, as I remark at the end of this post, whatever one’s prescriptive views, descriptively the effort appears to raise questions about “contracting around” the Security Council in a changing world but un-amendable UN. Continue Reading…

International Environmental Law as a 30% Solution

by Dan Bodansky

Many thanks to Peter, Kal and Scott for their very thoughtful comments.  As Peter notes, The Art and Craft of International Law focuses more on process and design than on doctrinal issues.  Whether or not he is correct that international environmental law lacks common principles or norms that give it substantive coherence, the premise of my book is that it can be studied coherently from a process standpoint.

Peter, Kal and Scott all focus on what makes international environmental law effective.  Peter emphasizes the role of social learning, and I agree that this can be an important factor — the acid rain regime in Europe provides a good example. But the climate change regime suggests the limits of epistemic factors.  Moreover, to the extent that Peter seems to see coercion, inducements and social learning as alternatives, rather than as potentially complementary strategies, then I disagree.  The ozone regime, for example, employs all three techniques.  Similarly, as I argue in my book, the managerial and enforcement approaches to compliance  are not mutually exclusive.  They are what Max Weber called “ideal types” and most regimes contain some admixture of the two.

As Peter suggests, we shouldn’t take a one-size-fits-all approach to regime design; instead, we need to consider carefully which design elements and which approaches to compliance are appropriate for which types of problems or countries.  Scott makes a similar point about the climate change regime: the regulatory approach used to address acid rain and ozone depletion — that is, national performance targets — may not work for climate change.  The array of tools in the international environmental toolkit are not interchangeable — they are not “mere alternatives,” as Peter notes (and I hope nothing in my book suggests that I think otherwise).  In addressing a problem, we need to choose the right tools.  And this requires us first to diagnosis the nature of the problem and the obstacles to progress, and then to consider which blend of design elements will be most effective — global vs. regional approaches, hard vs. soft instruments, carrots vs. sticks, and so forth.  Systematic study of these questions is  certainly helpful.  But, in the end, answering them is as much an art and a craft as a science.

Scott asks, what are the obstacles to international progress on the climate change issue?  The traditional diagnosis has been that climate change is a collective action problem.  On this view, the role of the international climate regime is to create credible, reciprocal commitments that help move states from the uncooperative to the cooperative outcome.   In the long run, this analysis may be correct.  But it fails to explain much of what we see happening now — on the one hand, an array of national governments, sub-national units (such as California) and businesses taking action unilaterally to reduce their emissions; on the other hand, other countries refusing to assume international commitments, whether or not their commitments are reciprocated by others.

At this stage, the challenge for the climate change regime is less to enforce collective action than to build domestic political will (though the two are, of course, interrelated).    Social learning is crucial here, as Peter suggests.  But the international climate regime can also help build political will by providing domestic groups with hooks that they can use in the domestic political process.  Even though Copenhagen is widely regarded as a failure, to the extent that it helped motivate pledges of domestic action by China, India, Brazil and other major developing countries (and to the extent that the pledged policies will significantly reduce emissions),  Copenhagen was a success even before it began.  As Kal suggests, the Copenhagen Accord could help reinforce these domestic pledges by recording them internationally and providing at least some measure of international review.  To my mind, the Copenhagen Accord epitomizes the characterization of international environmental law with which I conclude my book:

In the end, international environmental law aims to find, not the optimal outcome, but rather the skillful compromise that bridges the gap between competing positions and advances the ball, even if only a little.  This view of international environmental law is admittedly more prosaic than heroic.  It counsels us to resist the tempting oversimplification.  It accepts that international environmental law, like politics, is the art of the possible — and seeks to find the “sweet spot,” which goes as far as possible but not beyond.

Will the system of pledge and review contemplated by Copenhagen be enough?  As Kal answers, only time will tell.  But, like him, I am doubtful.  And, like Scott, I am skeptical that we could improve on Copenhagen and make greater progress through an alternative process.  I used to think that process was the problem, and supported addressing climate change in an alternative forum involving fewer countries, such as the G-20.  But even if this might have been feasible if we were writing on a clean slate, states have moved so far along the UNFCCC tracks that switching tracks now would be enormously difficult — particularly since the dysfunctionality of the UNFCCC process provides useful cover to countries such as China that are reluctant to assume any international commitments themselves.

What is the solution?  Alarmingly, there may be no solution.  Perhaps an alternative regulatory approach would be preferable, as Scott has argued elsewhere.  But perhaps not.  As I argue in my book, international environmental law can play a constructive role, but that is all.  It is what I call a thirty percent solution.  Solving a problem such as climate change depends on many other factors as well.

Thus, my main thought leaving Copenhagen was exactly along the lines that Kal suggests — namely, to revisit the issue of geoengineering, which I last wrote about more than a decade ago.  Geoengineering raises many questions and concerns.  But if countries fail to limit their emissions significantly — and if severe climate change occurs as a result — then geoengineering may emerge as a compelling option, as Scott has argued in a very interesting piece entitled the “The Incredible Economics of Geoengineering” (Environmental and Resource Economics, vol. 39 (2008).  So, while many may find the prospect of geoengineering unpalatable, we would be well advised to start thinking through its legal and policy implications now ….

The Relevance of International Law to (the Substantive and Procedural Rules of) Preventive Detention in Armed Conflict – A Rejoinder to Al-Bihani

by John C. Dehn

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy.]

The post-Boumediene habeas litigation has raised concerns regarding whether the courts are equipped to determine the substantive and procedural rules governing preventive detention pursuant to the Authorization for the Use of Military Force of 18 September 2001 (AUMF). Before the January 5th D.C. Circuit panel opinion in Al-Bihani v. Obama, no court had questioned the relevance of international laws governing war to the issue.

I believe that the courts are certainly competent to determine these issues so long as they observe applicable international law in construing the AUMF. The panel opinion’s suggestion that international law is irrelevant to the preventive detention inquiry ignores over 200 years of precedent in this area.

Contrary to the general approach taken by the district courts, the al-Bihani panel concluded:

[A]ll of [al-Bihani’s claims] rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the internationallaws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005…, or the MCA of 2006 or 2009, that Congress intended the internationallaws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. Mem. Op. at 7.

Concurring with the panel opinion, Judge Brown said:

The Supreme Court in Boumediene and Hamdi charged this court and others with the unprecedented task of developing rules to review the propriety of military actions during a time of war, relying on common law tools. We are fortunate this case does not require us to demarcate the law’s full substantive and procedural dimensions. But as other more difficult cases arise, it is important to ask whether a court-driven process is best suited to protecting both the rights of petitioners and the safety of our nation. Concur. Op. at 1.

Another D.C. district court judge is reported to have expressed similar concerns from the bench regarding the conduct of the courts and the need for congressional action:

“It is unfortunate that the legislative branch of our government and the executive branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases.” He noted that his fellow judges hearing detainee cases essentially created “different rules and procedures … different rules of evidence … [and] substantive law.

Interestingly, this “unprecedented task” is not unprecedented at all. Early in U.S. history, federal courts determined the rights of individuals against the U.S. government in prize cases and faced precisely these problems. Prize cases involved the capture and condemnation of the ships and commercial cargo of enemy nationals (and also of U.S. nationals engaging in commerce with them) in congressionally designated general or limited (a.k.a. “partial”, or “quasi”) wars. While prize captures are no longer permitted by international law, its case law is instructive to preventive detention questions. (More after the jump…)

ASIL Annual Meeting Program Now Online (and Last Day for Early Bird Registration)

by Chris Borgen

See it here. As usual, it’s full of great panels. Also, Chief Justice Beverley McLachlin of the Canadian Supreme Court and U.S. Department of State Legal Adviser Harold Koh will each give a keynote address.  A list of program highlights is here.  And, by the way, today is the last day for early-bird registration

Barrett Commentary to “The Art and Craft of International Environmental Law”

by Scott Barrett

Dan Bodansky’s new book doesn’t just explain what international environmental law is. It explains why it exists, how it develops, and, very importantly, whether it makes a difference—a difference that you and I can experience in our everyday lives. What I like most about this book is that it gives the reader a feel for the subject (this is why the title, The Art and Craft of International Environmental Law, is so apt). This is essential. Some scholars question whether international law exists, and the reason, I think, is that international law is constructed very differently than domestic law. It is not written down from above, as it were, but bubbles up from below. International law is created, but not always deliberately; it emerges, but not entirely randomly. It establishes the “rules of the game” of international relations but the rules are evolving and not always clear, and the process that gives rise to these rules is also changing—really co-evolving with the rules themselves. For all these reasons, international environmental law can be difficult to pin down. But it’s important, and our futures depend on it, so we need to understand it. We need most of all to understand how to manipulate it (I don’t mean “manipulate” in the pejorative sense of the word) to address the great challenges of our times.

The greatest of these challenges is climate change, and Dan knows at least as much about this subject as any international law expert anywhere. He knows very well that the world has not addressed this challenge satisfactorily, and I think he knows the reasons why. The question is, Can we do better? I think the answer is yes. But then: Will we do better? This is less clear. The answer depends partly on whether we have provided a proper diagnosis of the reasons for failure thus far.

There seems to be unanimous agreement that the negotiation process failed in Copenhagen. Yes, an agreement was concluded; but the “Copenhagen Accord” was hastily written by a few world leaders in the final hours of a chaotic conference. From one perspective, this was a remarkable accomplishment—one for which President Obama deserves high praise. From another, it is disturbing that an issue of such great complexity should be addressed in this way. You have only to read the brief document to know that it resolves nothing.

What are the lessons? The lesson most people have drawn from this experience is that we need another process. The G20 has been mentioned. So has the Major Economies Forum. On Tuesday I heard of another idea, the G28 (whatever that is). Whichever process is adopted, the conclusion seems to be: if only we had a different (better) process the outcome would be better. I disagree; and I’d like to know what Dan thinks.

I disagree because I don’t think the process is the problem (though I’m sure the process can be improved). I think the failure of the process is a symptom of a deeper problem—our entire approach. This approach has focused on the setting of targets and timetables for the emissions of entire countries. It is an approach that emerged in the late 1980s. It is an approach that has prompted country after country to set unilateral targets, almost all of which have been missed. It is an approach that lies at the very heart of the Kyoto Protocol—an agreement that has failed to reduce global emissions, and that Copenhagen was supposed to improve upon. In many ways, I see the Copenhagen Accord as taking us full circle. We started this process in the late-1980s with countries declaring short-term economy-wide emission targets. Twenty years later, Copenhagen is asking countries to declare new numbers, perhaps with new base years, for this same quantity.

This is frustrating. It will make some people want to reject the value in international negotiations and international law. But as Dan explains in his book, there really is no viable alternative. So we have to keep trying. But should we change the process or the approach? Dan, what do you think?

International Law in the UK – Or Maybe Not?

by Jan Klabbers

For those of us living in the US, it is sometimes difficult to realize that interesting international legal events may also occur elsewhere; for instance, in the UK. Yet, times in the UK are very interesting indeed. This week alone the newspapers were filled with reports on the questioning of senior UK Foreign Office lawyers concerning the legality of the 2003 invasion of Iraq (nutshell: they thought it was illegal; the attorney-general wavered a bit, and their political taskmasters went ahead anyway). Hopefully, you’ll find the link to one of the many stories here: http://www.guardian.co.uk/uk/2010/jan/26/chilcot-inquiry-iraq-invasion-lawyers.

Second, the UN’s special rapporteurs on terrorism and human rights and on torture (Martin Scheinin and Manfred Nowak, respectively) reported that the UK may well have been engaged in acts of torture in connection with the proclaimed war on terror. The link: http://www.guardian.co.uk/world/2010/jan/27/britain-complicit-possible-torture-un.

While others might use the opportunity to engage in all sorts of ironic statements involving words such as birthplace and Rule of Law, I shall refrain from doing so (I learned my irony lesson last week…). Perhaps though there is a minor lesson here for all those who so warmly welcomed the ‘legalization’ of global politics a decade ago: maybe the legalization of world politics has some distance to go still. That is not to embrace simplistic realism of the Goldsmith/Posner variety, but it is to suggest that the creation of all sorts of nice courts and tribunals and increased rule-density remain ineffective unless people and the institutions they run are somehow keen to actually implement those rules and render those courts and tribunals effective, even when politically inexpedient, or when the interests of their voters and businesses are not directly at stake. Judging by the UK experience, there seems to be little reason to be overly hopeful.

Opting out of Customary International Law

by Duncan Hollis

One of the most fascinating topics (for positivists like myself anyway) is how customary international law incorporates a consensual element via the idea of persistent objectors.  Questions, of course, abound over why persistent objectors get an exemption from a customary rule, when subsequent objectors do not (unless other states acquiesce in the subsequent objector’s departure from the rule, or take it as the beginning of a movement towards a new customary rule, etc.)  In recent years, the implications of state decisions to opt-out of or simply not comply with customary rules have garnered increasing scholarly attention.  Most recently, Curt Bradley and Mitu Gulati have joined the conversation with their article, Withdrawing from International Custom.  That paper will be the basis of a scholarly roundtable this Saturday at Duke Law School, appropriately titled, Opting out of Customary International Law.  Although the papers for the roundtable aren’t publicly available yet, you can see details of the agenda after the jump.

On Cold Calling and Cosmopolitan Constitutionalism

by Jan Klabbers

This morning I had the distinct displeasure of being woken up by a phone call coming in on my Finnish cell phone, around 6 a.m. The caller turned out to be a Helsinki-based energy company, which started to promise me all sorts of cheap energy until I pointed out that I was currently residing in New York, that it was 6 a.m., and that I was not too happy at being called at such an indecent hour. Cold calling: one of the many, many delights of global capitalism, and typically always done at the most unwelcome moments. This must have been the 5th or 6th time a call came in at night since I moved (temporarily) to New York a few months ago, and a particularly memorable earlier occasion involved a crowded classroom in Geneva, a high-strung over-enthusiastic salesperson speaking all-too-rapid Finnish, and a highly bewildered me.

Unable to get back to sleep, I picked up the book on my table (the fine volume on constitutionalism edited by Jeff Dunoff and Joel Trachtman, ‘Ruling the World? Constitutionalism, International Law, and Global Governance’), and started to read Matthias Kumm’s lengthy contribution to that volume: ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State.’ About two hours later – I did say it was a lengthy piece – I was in a good mood, almost good enough to return the energy company’s call and thank them for waking me up so early, because Kumm’s piece is truly excellent: one of the best, and most useful, pieces I have read in a while.

Kumm’s main proposition is that all the talk of global constitutionalism actually is sensible, even in the absence of a written global constitution or constitution-like institutions. Instead of suggesting that global constitutionalists got it all wrong, he adopts the reverse stand: the domestic constitutionalist paradigm is mistaken, because it unduly restricts constitutionalism to the state. Cosmopolitan constitutionalism, as he calls it, is not only normatively desirable (this is a proposition quite a few international lawyers would intuitively accept), it is also descriptively superior. It is, in Kumm’s rendition, able to describe more accurately what is going on, e.g. when domestic courts find inspiration in international law or even apply it without much further ado but also, intriguingly, when they refuse to do so: Kumm actually makes the ECJ’s decision in Kadi look sensible and attractive to an international lawyer. While I’m not sure I would accept his analysis in all its detail, Kumm is to be congratulated on having written an excellent piece, making a thought-provoking yet plausible argument and doing so in a nicely combative style.

Still, one nagging question remains: can cosmopolitan constitutionalism protect me against cold calling at 6 a.m when I happen to be abroad? I realize, 6 a.m. in New York is 1 p.m. is Helsinki, but even so: why should I require protection to begin with? Why not insist that cold calling can only take place with the consumer’s explicit permission? Put in more general terms: cosmopolitan constitutionalism may help keep public power in check, but maybe that is effectively only a rearguard battle. What is sobering about all the writings about global constitutionalism these days (and my own are no exception) is the realization that very little attention is being paid to the role of private power. Maybe that is because we collectively think that constitutionalism somehow has to do with keeping public power in check and has nothing to do with private power, but perhaps this too is a proposition that would warrant further scrutiny. And maybe, just maybe a constitutionalist frame of mind should also be applied when it comes to organizing the global economy: the utility of cosmopolitan constitutionalism might be limited if a Thatcherite global economy is left untouched. In addition to seeing Mr Kadi’s right to property protected, perhaps the protection of other kinds of economy-related rights would make sure that we could all get a decent night’s sleep.

Copenhagen and Compliance

by Kal Raustiala

 

 

There are few international lawyers in the world who know more about climate change than Dan Bodansky. More generally, Dan is also an expert on international environmental law (IEL), and in this book he has distilled years of study and observation into a very readable yet sophisticated treatment of the subject. A successful overview and analysis of IEL is very hard to pull off well, and I recommend the book to anyone looking to understand this complex area of international law.

 

Dan rightly focuses substantial attention in the book on the issues of reporting, review, compliance, and effectiveness. (For simplicity I’ll label this package “review”).  Peter Haas has already pointed out one area in which IEL exhibits unusual features–the vast array of discrete treaties–and review is another. Partly as a function of this multiplicity of agreements, IEL has developed a very wide range of institutions that focus on review. While one can bemoan the fact that we don’t have a single World Environment Organization to rationalize the process of cooperation, there are advantages to having many discrete regimes. By dint of having so many different regimes experimenting with so many different processes, we can learn quite a bit about what works and what doesn’t in the area of review.

 

One of the most significant areas of debate in this regard has been over how to treat non-compliance. To some degree compliance is not actually that important. Since treaties can and often are tuned to produce compliance, such as by setting the legal standard to match pre-existing behavior, the real issue ought to be effectiveness: is the treaty successful at altering behavior from what it would otherwise be? But as a practical matter compliance is an important political and legal issue. How to treat non-compliance by a party is an ex post problem. There are, however, also ex ante effects to the focus on compliance.

 

Most strikingly, a focus on compliance can exacerbate the “tuning” problem I just noted. States may want to commit to a given regime but will often fear the unexpected costs that may result. This is particularly true in IEL where there are usually major but unpredictable economic implications to regulation. A cautious, prudential government will seek to match the international commitment as closely as possible to its current policy or policy trajectory.

 

This is one reason that–to recall our previous book club discussion at OJ–non-legally-binding agreements can have surprising utility. Lawyers often dismiss them, and so too do many other analysts. But one great advantage they have is that take away the problem of violating international law, and therefore, counterintuitively perhaps, can permit governments to be more ambitious in their cooperative efforts. To be effective, however, this strategy requires serious review, else the result will often be empty promises.

 

In this regard, consider the recent accord struck at Copenhagen over climate change. In many respects this accord is simply what was once called in the climate world “pledge and review”: each government pledges to do X or Y, and then that pledge is reviewed later. There is no legal commitment, but there is a political commitment. (In fact, the words “legally-binding” were expressly removed in the negotiations)

 

Will this result in serious efforts that will create real change in behavior? Or will states just maintain the status quo? Only time will tell, but for the first to occur not only will bold (ish) commitments be required, which we have yet to see. Those commitments will also have to be tied to some system of intensive but flexible review. Since unfortunately I don’t anticipate that this combination will occur–at least, with enough strength to really matter–I advise interested readers to look at another smart and prescient piece by Dan: “May We Engineer the Climate?”, Climatic Change, 1996.

 

Haas Commentary to the “Art and Craft of International Environmental Law”

by Peter Haas

I want to thank Dan for writing such a comprehensive book about the conceptual and applied elements in international environmental law (IEL). To a non-lawyer, it reads like a state of the art report on IEL.

International environmental law is particularly striking to me, especially when compared to other substantive areas of international law, in the number of actual texts on which legal analysts rely to interpret international environmental law. Estimates vary, in part depending on whether one measures hard or soft law; hard law that involves more than three  countries, commons or merely transboundary texts, and so on. But the point is that we are talking about hundreds, if not thousands of agreements, as compared to the far smaller number of texts constituting, for instance, trade law, or human rights law.

Family resemblances aside, there is a huge degree of variation within international environmental law(s). It is thus extremely difficult to offer significant pronouncements about such a wide corpus of law. While there may indeed be common principles or norms underlying regimes in trade (barriers to trade are bad), and human rights (various individual rights are to be pursued in particular applications), it is not at all clear that such things exist in the environment (sometimes resources are to be managed, sometimes they are to be preserved.) Also, there is enormous variation in terms of the degree to which particular efforts are effective, and the degree to which individual countries comply with obligations. Vast amounts of empirical work remain to be done comparing national behavior across regimes, for instance, particularly since some theories would predict uniform behavior whereas others would expect variation.

Indeed, Dan wisely resorts to talking about IEL as a toolkit of techniques used in individual international treaties, and addresses some of the conceptual difficulties associated with talking about international environmental law, such as what actually constitutes international environmental law, underlying principles, and effectiveness.

More fundamentally, it seems to me that he is describing IEL as a process, rather than a coherent subject of inquiry. . .

The Art and Craft of International Environmental Law

by Dan Bodansky

 

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How and why do international environmental norms arise? In what ways do they affect behavior? Do they change what states and individuals actually do, and, if so, why? How effective are they in solving international environmental problems? These are some of the questions I examine in my new book, The Art and Craft of International Environmental Law.

My decision to write the book was prompted by an actual incident that I had more than a decade ago, with which I begin the introductory chapter.  I was living in Seattle at the time.  One evening the doorbell rang and it was an environmental NGO asking for contributions for his organization.  I wasn’t a big fan of his NGO, so I declined and when he asked why, I said that I disagreed with some of his organization’s positions.  He asked which one and I responded, Norwegian whaling.  After an inconclusive debate about the status of minke whales in the North Atlantic, the volunteer, in frustration, played his trump card, exclaiming:  “I suppose it doesn’t matter to you that Norway is in violation international law!”  That really got me going, so I replied — somewhat pedantically — that I happened to be a professor of international law and that, as a legal matter, Norway is in compliance with the International Whaling Convention.  He stomped off in search of greener pastures.

I found the encounter fascinating because it illustrated so many themes in international environmental law:  the intertwining of scientific and factual disputes, the special discursive power of legal argumentation, the various design features of international agreements.  And I got to thinking, what could someone read to get a broad, realistic, pragmatic  overview of the field that synthesizes the range of work in different disciplines on international environmental problems.  I couldn’t think of anything and decided to write this book.  Now, more than 10 years later, it is finally out!

The Art and Craft of International Environmental Law has several defining features:

First, it focuses on the processes by which international environmental law is developed, implemented, and enforced rather than on the substance of international environmental law itself—already the subject of several excellent treatises. Accordingly, the book is not organized doctrinally, in terms of air pollution, marine pollution, chemicals, and so forth.  Instead, it is organized thematically, with chapters on such topics as the causes of environmental problems, the varieties of international norms, the obstacles to international cooperation, the design of international agreements, policy implementation, enforcement and effectiveness.  Process issues have received increased attention in recent years but have not yet received a book-length treatment. My new book aims to fill that gap. Rather than focus on one or two aspects of the international environmental process, it examines the process as a whole, from beginning to end, synthesizing recent research on international environmental negotiations, treaty design, social norms, policy implementation, and effectiveness.

Second, the book is multi-disciplinary.  To understanding the international environmental process, we need to study not only law, but also political science, economics, and, to a more limited degree, philosophy, sociology, and anthropology.

Third, the book is theoretical in its orientation, but tries to ground its discussions of theory through the use of concrete examples.  In a wonderful book entitled Nuts and Bolts for the Social Sciences,Jon Elster wrote that his subtitle might have been “Elementary Social Science from an Advanced Standpoint,”  That has been my goal as well: to write an elementary book from an advanced standpoint, with a stronger methodological and philosophical orientation than is typical in an introductory work.

Fourth, the book aims to be pragmatic, reflecting my experience working on international environmental issues as a U.S. government negotiator, NGO adviser, and UN consultant. Although it is theoretical, it tries to provide a real-world perspective on how international environmental works—and sometimes doesn’t work. Students and scholars of international law fall along a spectrum, from true believers at one end to complete cynics at the other. My book seeks to chart a middle course. It reflects a degree of skepticism about some of the more visionary claims regarding the role of international environmental law. But it does not throw out the baby with the bath water. Rather, it seeks a realistic understanding of both the role and the limits, the process and the prospects, of international environmental law.

I’m very grateful to Opinio Juris for agreeing to host this book discussion, and to David, Kal, Peter, and Scott for their willingness to contribute to it. 

Opinio Juris Book Discussion: “The Art and Craft of International Environmental Law,” by Daniel Bodansky

by Peggy McGuinness

The Great Patriotic War — In Sand

by Kevin Jon Heller

If you haven’t seen this already, you should. The eight-minute video shows the winner of Ukraine’s Got Talent, 24-year-old Kseniya Simonova, dramatizing the effect of Operation Barbarossa on the Ukraine through a series of drawings on an illuminated sand table. It is absolutely mesmerizing — beautiful, disturbing, moving. As you will see, many members of the audience were in tears. So was I when I watched it.

Hat-Tip: My mom.

The Emerging Law of Detentions: The Guantanamo Habeas Cases as Lawmaking

by Kenneth Anderson

Anyone doing serious work on detention, Guantanamo, war on terror, any of these areas, will want to read an extraordinary new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim, The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking.  (I’ve given the SSRN free download link; here is a short NPR piece on it with legal affairs correspondent Ari Shapiro.)

No matter what your particular legal viewpoint about detention and Guantanamo, I believe this report will be required reading because of the sheer breadth and depth of its analysis — running to all the extant cases.  Ben Wittes is a leading scholar at Brookings in this area and UTexas’s Bobby Chesney is both a leading scholar, and also someone who took on Most Thankless But Important Job in conducting a major review for the Obama administration on detention policy.  Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies.

I went to Ben and Bobby, and asked if they would give me a guest post on the background to this report and their purposes in researching and writing it, and I would like to thank them for the short response below (cross posted to Volokh):

Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects.  Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it. Continue Reading…

More soft statehood…

by Jan Klabbers

Over the last few days I learned a valuable lesson: irony and satire do not work. I thought my contribution on soft statehood was written with my tongue so far in my cheek that it risked coming out of my ear; I thought I had piled on the layers of irony so richly that had my contribution been a pastry, it would have been considered a health-hazard. Alas.

Professor Anderson can rest assured: there is fairly little risk just yet of him transmogrifying into me, or the reverse. What I had hoped to accomplish was to demonstrate by means of what I held to be the obviously silly notion of soft statehood, that softness and hardness in law are rarely, if ever, a good idea. This requires some explaining. For academic (social science) purposes, classifying states as harder or softer may make perfect sense – part of what academics do, after all, is classify, rank, name, and categorize their objects of study. In this context, it may make perfect sense to claim that Canada, despite not having a head of state of its own (I’ll stick to this; otherwise I might also have to claim that Chechnya has a head of state of its own, who just happens to reside in Moscow and is called Medvedev), is more of a state than, say, Belgium. And depending on what exactly is measured, the reverse may be true too: on some counts, Belgium may perhaps be considered more of a state than Canada.

Likewise, the ethicist (or moralist) may well claim that certain states do better on some ethical index than others, and thus might be more deserving of applause than those others, or less susceptible to foreign interventions, or whatever. In sum, both the social scientist and the ethicist may well engage in grading statehood and come up with descriptions in which some states are considered harder than others. It is probably no coincidence that the references included in the comments to my original piece were references to the work of a philosopher (Buchanan) and a political scientist (Keohane).

But in law, as a prescriptive matter, this is problematic. For one thing, a category of soft statehood may come to provide other states with an all too easy excuse to intervene. But that’s not all: a host of practical problems would ensue. What to do, for instance, with passports issues by a soft state (and recognized as such)? Would two people from that soft state, being married, be able to travel as a married couple, or would their marriage not be seen as real enough because they only come from soft, albeit recognized, state? Would soft states be admitted to the UN (they might still be considered to meet the requirements of article 4 of the Charter) and if so, would they be given softer chairs to sit on? Or would the chairs be harder, so as to underline the softness of their occupants? (Oops: irony alert.)

Oh well. Long story short: it seems to me that the invisible college of international lawyers often runs the risk of confusing academic classification or ethical argument with the normative role of law. As Kal Raustiala pointed out earlier this month on Opinio Juris, law is a formal category, which can only operate in binary fashion. Behaviour is either legal or illegal; an instrument is either binding or non-binding; and a state is either a state, or is not a state at all but something else. Anything else confuses law for either descriptive social science, or ethical subtlety. It is tempting to do so, of course, because doing so would seem to make law all that more nuanced, but law, as Prosper Weil suggested in his classic 1983 AJIL article on relative normativity, has no business being subtle. Instead,. its business is to translate everyday nuance into a workable system, something that can tell people how to behave, how not to behave, and helps convince them that their marriage is valid no matter where they travel, and that their passport will hold good at any border post.

Let me now ask a question to my readers. I understand why such things as soft law or non-compliance procedures or soft international institutions (think G20, or Paris Club) are very attractive to policy-makers and governments: it gives them lots of leeway, and doesn’t cost them too much. But could anyone really seriously imagine those same governments and policy-makers to accept the notion of soft statehood? Would Russia really be willing to recognize Chechnya in soft form? Or China to accept the soft existence of Taiwan as a matter of law, with all the symbolic validation this entails, and not just de facto? If the answer is in the negative, as I suspect it is, then what becomes clear is that soft law and its various emanations, to the extent that they are accepted as legal categories, ought to be regarded first and foremost as tools in the hands of the powerful. That need not be problematic in its own right, but one hopes it would entail some critical scrutiny when such notions are invoked by governments and policy-makers.

Reflections on the Ugandan Anti-Homosexuality Bill

by Roger Alford

The proposed anti-homosexuality legislation introduced by Ugandan parliament back-bencher David Bahati is creating an international outcry. The bill–introduced as a private member’s bill without government support–would impose the death penalty for “aggravated homosexuality,” defined as “sex with a minor or a disabled person, where the offender is HIV-positive, a parent or a person in authority over the victim, or where drugs are used to overpower the victim.” It otherwise imposes a penalty of life imprisonment for homosexuality, and includes lesser punishment of seven years for promoting homosexuality and three years for failing to report offenses.

The proposed legislation has caused an international outcry, so much so that the Ugandan President Museveni has publicly called for a delay of the legislation, saying that

“I told them that this bill was brought up by a private member and I have not even had time to discuss it with him. It is neither the Government nor the [ruling] NRM party. It is a private member…. This is a foreign policy issue and we have to discuss it in a manner that does not compromise our principles but also takes care of our foreign policy interest.”

My friend who just returned from Uganda said that those words were designed to kill the bill before more damage was done to Uganda’s reputation.

The proposed legislation is, in the words of evangelical pastor Rick Warren, “unjust, extreme and un-Christian toward homosexuals.” In an open letter to Ugandan pastors, he urged opposition to the bill:

“the freedom to make moral choices, and our right to free expression are gifts endowed by God. Uganda is a democratic country with a remarkable and wise people, and in a democracy everyone has a right to speak up. For these reasons, I urge you, the pastors of Uganda, to speak out against the proposed law.”

The proposed bill also has generated a huge media outcry, as well as threats to withdraw foreign aid, and diplomatic protests from many quarters, including Prime Minister Gordon Brown and U.S. Secretary of State Hillary Clinton.

International Law Weekend 2010: Call for Panels

by Peggy McGuinness

The American Branch of the International Law Association has posted a call for panels for the 2010 International Law Weekend, which will take place in New York October 21-23. This year’s theme is “International Law and Institutions: Advancing Justice, Security and Prosperity.” ILW is always a fun event — with lots of student and NGO, IO and private practitioner participation.  Full call for proposals after the jump.

Event: Human Rights and Law of Armed Conflict

by Kenneth Anderson

If you are in the DC area on Monday, January 25, you might want to check out this event at ASIL Tillar House, 2:30-5:00 pm.  This looks to be a terrific discussion with great people on the program.  “Mind the Gap: International Human Rights Law and the Law of Armed Conflict,” with Gabriella Blum and Geoffrey Corn as discussants, and Harvey Rishikof and Jamie Williamson as commentators.  Event is free, but space is limited in Tillar House, so register with an email to Patty Davila at davila [at] law [dot] edu.  Here is the brochure description:

Professors Blum and Corn have both recently published provocative articles that stake out quite different positions over the legal uncertainties posed by the applicability of human rights standards to situations where the law of war is applied. To what extent are human rights standards applicable in armed conflicts and in how far is the jurisprudence of regional human rights courts pertinent? For example, does human rights law preclude combatants in war from killing each other’s soldiers, regardless of their role, function, or degree of threat? This is just one point on which the discussants are likely to disagree. It is a hot topic and will be a featured subject at several international and national law conferences in 2010.

Question for Professor Klabbers …

by Kenneth Anderson

(I put this as a comment below, but have decided to move it up as a post, with a question for Professor Klabbers.)

What a fascinating post – thanks for being with us on OJ!  I have two reactions that seem, on the surface, perhaps contradictory – but perhaps they are not.

On the one hand, the idea of gradations of sovereignty makes a lot of sense to me, in part to deal with what, in the dim past, might have been trust territories, or situations like Kosovo.  On the other hand, and unlike many professors of international law, I am skeptical of efforts to reduce, dissolve, or otherwise de-sovereignize sovereignty – both descriptively and normatively.

Descriptively, it seems to me that one of the lessons of the rise of China for the developing world, as they see it, is that ‘hard’ sovereignty is an excellent plan, and anyway, as David Rieff points out, a multipolar world is a more competitive world, not a more cooperative one.  So I don’t think the world is headed in the direction of less importance attached to sovereignty (and I don’t see you as suggesting that, either, instead that even a world that is more focused on the privileges of sovereignty would do better to have a graduated gateway, particularly if sovereignty means more, rather than less).

Normatively … when I look at Haiti, or failed states around the world, and the disordered areas of the world, I think … sovereignty is actually a major achievement, and seeking to dismantle or delegitimize it a bad idea.  The problem of China is that it offers an example of sovereignty as its own justification, for its own sake – rather than seeking to make the condition of legitimate sovereignty premised on some set of basic substantive human rights and democratic values.  But again, I don’t see that as running against the idea of graduated sovereignty in places like Kosovo.

So let me put this as a question.  I don’t read your post as calling, as international law professors often do, for a weakening of sovereignty through the device of gradations of sovereignty.  It seems to me just as well an argument, and a good one, for gradations of sovereignty precisely because sovereignty means so very much (and more in a competitive world of sovereigns modeled on China’s quasi-mercantilism and assertively self-interested, “don’t squawk to us about values,” foreign policy) that we need a way of treating some states as part of the full club and some as something less?  Or am I re-writing Professor Klabbers as … Professor Anderson?

Soft Statehood?

by Jan Klabbers

It would be tempting to join Opinio Juris’ discussion on soft law of a few weeks ago, but having written quite a bit on the topic going back to the mid-1990s, I thought I’d pay some attention to a lovely little story that ran in the New York Times about a month or two ago (I forgot to date my clipping… Typical). The story concerned the death of Prince Giorgio, ruler of what the NYTimes referred to as the Principality of Seborga.  Prince Giorgio was apparently first elected prince in 1963 and then elected for life in 1995. He went through life as His Tremendousness (wouldn’t we all…), set up a cabinet and a constitution, minted money and stamps and even mobilized a standing army, albeit one consisting of a single individual (then again, Seborga counts only a little over 300 inhabitants). Being surrounded by Italy and close to France, Seborga had found recognition of sorts by some 20 states, mostly in the not-so-formal way of honorary consuls. And so as to underline his royal eccentricity, Prince Giorgio’s most noteworthy legislative act, it appears, was the adoption of a law to stimulate smoking.

The intriguing question the story represents is why few of us think of Seborga as an independent, sovereign state, whereas we have no problem in thinking of Canada, or Brazil, or even Luxembourg, as an independent state. Luxembourg is not much bigger than Seborga; Brazil is, arguably, far younger than Seborga (which, according to the NYTimes, has been a principality since at least the year 1079); and it is arguable that Canada does not, unlike Seborga, have its own head of state. So where does the difference stem from? It all seems rather arbitrary, really. The obvious formal answer would be to refer to recognition by other states, but this too seems to remain rather arbitrary: there seems to be no self-evident reason why the rest of the world should have recognized Luxembourg but not Seborga. In other words: even the category of statehood, much like many other international law categories, may be seen as somehow fluid.

With this in mind, shouldn’t we come to conceptualize statehood in gradations? This would allow us to come to terms with an entity such as Kosovo: not wishing to be part of Serbia, but not yet fully to be regarded as ‘hard state’ either. It would help us classify and categorize entities such as Somalia as a ‘soft state’ – surely, this sounds much nicer than ‘failed state’ while conveying much the same message. It would make some sense of the Holy See, the one entity where the population cannot reproduce itself. And wouldn’t Belgium be better off divided into two, three or four soft states rather than one fragile hard state with a hopelessly complicated constitutional set-up the only thing preventing it from breaking up completely?  

When writing about soft law in the mid-1990s I aimed to ridicule the concept of soft law by suggesting that surely, we would never come to speak of soft responsibility to be determined by soft tribunals, yet this is precisely what has happened in the intervening years: non-compliance procedures are established in order to assist states with ‘compliance problems’. With this in mind, recognition of the concept of soft statehood can only be a matter of time…

The Stickiest LawProf Blogs

by Roger Alford

Paul Caron at Tax Prof Blog has just published the annual rankings for law professor blogs. There is some very useful information, including overall traffic numbers and details on which blogs are growing and declining in numbers. (Opinio Juris is now ranked 16th overall and is among the top ten in percentage annual increases).

As I have reported before, it is one thing to have good traffic numbers and another to be well read. Here are the rankings of the stickiest law professor blogs (with Caron’s rankings in parenthesis):

1. 3:30 Althouse (3)
2. 3:10 Jack Bog’s Blog (9)
3. 2:40 Antitrust & Competition Policy Blog (34)
4. 2:35 Election Law Blog (33)
5. 2:27 Mirror of Justice (28)
6. 2:25 The Right Coast (19)
7. 2:23 Sentencing Law & Policy (11)
8. 2:21 Religion Clause (24)
9. 2:17 Sports Law Blog (25)
10. 2:15 Legal History Blog (27)
11. 2:13 Dissenting Justice (26)
12. 2:10 Prawfsblawg (13)
13. 2:05 Faculty Lounge (15)
14. 2:01 Opinio Juris (16)
15. 2:00 Balkinization (14)
16. 1:49 Patently-O (7)
17. 1:46 The Conglomerate (22)
18. 1:41 Immigration Prof Blog (23)
19. 1:40 White Collar Crime Prof Blog (20)
20. 1:40 Workplace Prof Blog (17)
21. 1:36 Legal Profession Blog (31)
22. 1:29 Wills, Trusts & Estates Prof Blog (21)
23. 1:22 Concurring Opinions (11)
24. 1:16 Legal Writing Prof Blog (30)
25. 1:15 CrimProf Blog (32)
26. 1:13 Leiter Law School Reports (12)
27. 1:07 Ideoblog (29)
28. 1:06 Discourse.net (18)
29. 1:04 Leiter Reports: Philosophy (6)
30. 0:32 Hugh Hewitt (4)
30. 0:32 Tax Prof Blog (5)
32. 0:31 Volokh Conspiracy (2)
33. 0:23 Legal Insurrection (8)
34. 0:00 Instapundit (1)

Welcome to Guest Blogger Jan Klabbers

by Duncan Hollis

We here at Opinio Juris are thrilled to welcome Jan Klabbers as our latest guest blogger.  Professor Klabbers is professor of international organizations law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. This semester he’s also a Fellow in residence at NYU’s newly established Straus Institute for the Advanced Study of Law & Justice.  Professor Klabbers is one of the world’s leading experts in the law of treaties.  Check out his impressive and provocative The Concept of Treaty in International Law if you’ve never done so, or take a gander at his more recent work such as Treaty Conflict and the European Union.  As the EU-focus suggests, Professor Klabbers also specializes in international institutional law, having authored a series of books and articles on the subject, including Introduction to International Institutional Law.  Most recently, Professor Klabbers has ventured into the growing debate about constitutional theory and international law with a recently edited volume (where he was joined by Anne Peters and Geir Ulfstein), The Constitutionalization of International Law.

Innovative Aid to Haiti

by Chris Borgen

The current issue of Foreign Affairs has an article called A Few Dollars at a Time: How to Tap Consumers for Development, which describes the “innovative financing” movement in which private companies find ways for their customers to contribute to international development. This morning, I came across an example that I guess you could call “innovative aid” as it isn’t so much development financing but rather disaster relief to Haiti.

Zynga is a software company that makes (wildly successful, as I understand) games playable via Facebook and MySpace. They have started a Haiti Relief Fund in which the Zynga gaming community can contribute to disaster relief by purchasing “virtual goods” within their games. They explain on their foundation’s website:

Three of our top games are participating in a special relief campaign to help earthquake survivors in Haiti. Zynga is donating 100 percent of the proceeds from non-withering white corn within FarmVille [one of their games], a Haitian drum on Mafia Wars, and a special chip package in Zynga Poker to support emergency aid in Haiti through the Zynga Haiti Relief Fund. Users can also support the fund by donating directly through Zynga.org…

All contributions will benefit the World Food Programme (WFP), which has set up an emergency response team to distribute food and other relief to thousands in Haiti affected by the devastating earthquake.

Elsewhere, they write:

“The devastation in Haiti is unimaginable, and anything we or our users can do is tiny compared to the utter loss for this nation,” said Mark Pincus, Zynga’s founder and CEO. “In our small way, I hope we can enable our users to help and touch Haiti in a meaningful way where every dollar raised can make a difference.”

Zynga and socially-conscious companies like it should be applauded for dreaming up new ways to respond to perennial problems. I should note that Zynga’s aid to Haiti began before the earthquake; they had already linked the sale of virtual seeds in their FarmVille game to development aid for school construction in Haiti. Sales of that one virtual item, in one game, before Haiti was making headlines, raised over a million dollars. A few dollars at a time can add up to a lot of money.

But, given the magnitude of the disaster that has befallen Haiti, the unfortunate truth is that even a million dollars is a drop in the bucket. So, I hope other companies follow Zynga’s lead and nudge more people (who might not have done so otherwise) into contributing to the relief effort.

Haiti: Should the US Evacuate American Citizens First?

by Peter Spiro

There are an estimated 45,000 US citizens in Haiti, and there’s an assumption that they should be first in line to receive US assistance.  As Hillary Clinton said yesterday, “They are our principal responsibility, to make sure that they’re safe, to evacuate those who need medical care.”  In his remarks this morning, President Obama stressed that “We will not rest until we account for our fellow Americans in harm’s way.”  The State Department has asked journalists in Haiti to get the word out that US citizens who would like to be evacuated should make their way to the airport.

This makes the most sense for US government personnel (and perhaps especially their families).  It also probably makes sense for US citizens who were unlucky enough to find themselves in Port au Prince as tourists when the quake struck.  These are people who may be in some ways at special risk, in alien territory, and their government owes a special responsibility to them.

But the vast majority of the 45,000 are not in either category.  (Another nontrivial category is aid workers who were already in place at the time of the quake, but assuming they are able-bodied, they are right where they want to be.)  Most are Haitian-born naturalized US citizens who had returned to Haiti; children born in the US to Haitian immigrants who returned to Haiti; or born in Haiti to US citizen parents.  In other words, US citizens who make Haiti their home.  (Most probably hold dual citizenship.  Although Haitian law does not recognize dual citizenship, in practice the status is common.)

Should these individuals get priority for US help?  I don’t mean to challenge their entitlement to citizenship.  An estimated 4-5 million Americans live abroad, many permanently, and their right to retain citizenship as nonresidents is water under the bridge.  But as between a healthy US citizen who lives in Haiti (and who wants to get out because it is not a nice place to be now) and an injured non-US citizen who may die if not taken to a hospital ship or Miami or someplace where there are functioning medical facilities, the choice is not so obvious.  Evacuation capacities are finite.  Putting US citizens at the front of the line means putting others at the back.

Trial Chamber Grants Certification to Appeal

by Kevin Jon Heller

The Trial Chamber has granted certification to appeal its decision upholding the Registry’s selection of Richard Harvey as stand-by counsel. Here are the relevant paragraphs:

10. With regard to the first limb that must be met before certification to appeal can be granted under Rule 73(B) of the Rules, the Chamber notes that the Decision Denying Motion to Vacate concerned the process by which the Registrar appointed Richard Harvey, and in that Decision, the Chamber found that if the Registrar’s decision was flawed and/or illegal because he had not followed the proper procedure, this would inevitably affect the Accused’s fair trial rights and thus the propriety of the procedure was a matter that goes to the fairness of his trial. For the same reasons, with regard to the Application, the Chamber is of the view that as the procedural propriety of the Registrar’s decision-making process may impact upon the Accused’s rights, the Decision Denying Motion to Vacate involves an issue that would significantly affect the fair conduct of the proceedings or the outcome of the trial.

11. With regard to the second limb of Rule 73(B), the Chamber notes that the trial is set to resume on 1 March 2010. The role and functions of Richard Harvey at that time remain to be seen and are dependent on the Accused’s behaviour. However, as there is a possibility that Richard Harvey may be required to represent the interests of the Accused at trial, it is clearly desirable for the matter of the propriety of his appointment by the Registrar to be resolved immediately, and not at the end of the trial when it may raise the prospect of a re-trial. Therefore, the Chamber is satisfied that an immediate resolution by the Appeals Chamber of the validity of the manner in which Richard Harvey was appointed may materially advance the proceedings.

I’m delighted the Trial Chamber has finally been convinced that our challenge is not premature simply because Harvey has not yet been appointed actual counsel.  As we have been pointing out for weeks, it makes no sense to appoint stand-by counsel who could not be appointed actual counsel.  So it is in everyone’s interest to resolve the issue now.

The certification decision is here.  My post explaining — ad nauseum — why the Trial Chamber’s original decision is flawed can be found here.  I will post our appeal brief as soon as it is filed.

Motions for certification to appeal are strange creatures.  I’m not sure why the judges thought it would be a good idea to require the parties to ask the Trial Chamber for permission to appeal its own decisions.  But at least the judges did the right thing here and certified our appeal.  I’m rarely optimistic about our motions, but I can’t see how the Appeals Chamber can possibly endorse the Registry’s jerry-rigged selection of Harvey and the Trial Chamber’s hear-no-evil, see-no-evil “review” of that selection.

More Oral Histories of International Lawyers

by Duncan Hollis

Back in 2008, I flagged the great service being done by the Squire Law Library at the University of Cambridge in compiling oral histories from some of the more eminent figures in international law. At the time, I focused on the recorded interviews with Sir Elihu Lauterpacht QC (although they’d also done one with Sir Derek Bowett, who passed away only a few months ago). 

Since then, the Library has done at least a couple more interviews that may be of interest.  They’ve posted a short interview with Martti Koskenniemi where he offers views on, among other things, the lasting influence of Sir Hersch Lauterpacht. They also have a more extensive interview with former ICJ President Stephen M. Schwebel, who talks about his own studies at Cambridge under Sir Hersch, Clive Parry and Robert Jennings, plus his early associations with folks like Sir Eli, Sir Derek, and Nagendra Singh.

Now maybe it’s the common connection to Cambridge, but I found these interviews quite striking in how small the international law community (or at least its English-speaking version) seems to have been in the years following WWII.  With all the specialization and fragmentation of the field today, the modern state of international law seems a far cry from the idea of a handful of generalists who taught or studied together.  That’s not to dismiss the utility of these stories or the project as a whole, but it does serve to mark how much the profession has (or is) changing.  In any case, I’m looking forward to seeing who else Cambridge pulls in for interviews in the coming years.

Looking for Interpretive Consensus in Abbott

by Roger Alford

The transcript for the oral argument in Abbott v. Abbott is out, raising the difficult question of what constitutes a right of custody within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. The treaty grants a parent the right to have a child returned to the child’s country of habitual residence if the child has been removed in violation of that parent’s rights of custody. The case raises the difficult issue of whether the non-custodial parent who has visitation rights has “custody rights” within the meaning of the treaty by virtue of a ne exeat clause prohibiting one parent from removing the child from the country without the other’s consent.

The case arose out of Chile. A British father and American mother had a child in 1995 and together the family moved to Chile in 2002. In 2003 the couple separated and the mother was granted custody and the father visitation rights. In addressing custodial issues, the Chilean court prohibited the child’s removal from Chile by either the father or mother without their mutual consent. The mother fled to Texas and the father filed an action in Texas for return of the child, alleging that his “ne exeat” rights to prevent removal from Chile was a “right of custody” within the meaning of the Convention.

Among the more interesting issues was Scalia’s colloquy regarding comparative interpretation of the treaty provision. In keeping within his views in Olympic Airways, Scalia expressed the view that the Court should interpret the treaty in a manner consistent with the general consensus of all the signatory states, assuming one could divine such a consensus. Here is Scalia’s exchange with Karl Hays, counsel for respondent Jacquelyn Abbott (pp. 43-48):

Justice Scalia: Most courts in countries signatory of the treaty have come out the other way and agree that a ne exeat right is a right of custody, and those courts include U.K., France, Germany, I believe Canada, very few come out the way you—how many come out your way?

Mr. Hays: Actually, Your Honor, the United States and Canada do, and the analysis—

Justice Scalia: Well, wait … You’re writing our opinion for us, are you?

Mr. Hays: … There have only been seven courts of last resort that have heard this issue. There are some 81 countries that belong—

Justice Scalia: Yes, but, still, in all, I mean, they include some biggies, like the House of Lords, right? And … the purpose of a treaty is to have everybody doing the same thing, and … if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in … other countries that are signatories to the treaty.

Mr. Hays: If, in fact, there were a consensus, but … there is not a consensus in this instance….

Justices Breyer and Ginsburg then enter the fray with Justice Scalia and the three start counting countries, whether Canada or Germany or Australia should count on one side of the ledger or the other, depending on whether the language in the case was dicta or whether it was a court of last resort, etc.

Hays then concludes with the comment, “the point that we are making, however, is that, if you have one or two or even three countries that have gone one way and then you have other countries that have gone the other way, that there’s not a clear-cut overwhelming majority of the other jurisdictions that have ruled in favor of establishing ne exeat orders….” To which Scalia responds, “We will have to parse them out, obviously.”

The exchange raises a great question of country-splits in treaty interpretation. Several justices appeared willing to interpret an ambiguous treaty provision consistent with the general consensus of signatory nations. But respondent argues that there is no clear consensus and only a handful of countries out of 81 signatories have even addressed the issue.

So even assuming the Court takes the approach suggested by Justice Scalia in Olympic Airways and looks for signatory consensus, what’s the Court to do when there are few voices from abroad and those voices are not consistent? Is there still a role for comparative interpretive analysis in that context?

Carl Schmitt’s Nuremberg Near-Miss

by Kevin Jon Heller

I’ve been writing Chapter 3 of my book on the Nuremberg Military Tribunals, which traces the evolution of the Office of the Chief of Counsel’s trial program — how it selected the twelve cases, why it abandoned others, which suspects it included and which it excluded.  It’s a fun chapter to write, both because no one has ever done it and because it gives rare insight into the thought processes of Telford Taylor and the other prosecutors.

I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials.  After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper.  Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.

As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947.  Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.”  According to the program, there were three definite defendants in the trial: Max Amann, the President of the Reich Press Chamber; Arthur Axmann, Schirach’s successor as Reich Youth Leader; and Otto Dietrich, Chief of the Press Division of the Ministry of Propaganda.  Schmitt, who was described as a “university professor and propagandist,” was then included with five others as potential defendants: Hartmann Lauterbacher, a District Commander in the Hitler Youth; Dr. Gustav School, Reich Leader of Students and Lecturers; Helmut Sundermann, Press Chief and Chief of Staff in the Press Chamber, Werner Zachintisch, from the Science, Education, and Popular Culture Division (of the Ministry of Propaganda?); Bernard Rust, the Minister of Education; and Herman Muhs, the Minister of Church Affairs.

At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt.  The second trial program no longer includes Schmitt as a possible defendant.  Indeed, the Propaganda and Education case had by then been merged with the Government Administration case (whose key defendant was Hermann Lammers, President of the Reichschancery) and only Amann, Axmann, Dietrich, and School remained suspects.

Although there is nothing in the OCC’s records that explains why Schmitt was eliminated from consideration, Joseph Bendersky, a historian at Virginia Commonwealth University, has argued that Schmitt’s repeated interrogation by Robert Kempner, a German-Jewish refugee who was one of the OCC’s most notorious prosecutors, simply failed to uncover anything particularly incriminating…

National Journal on Predator Drone Strikes

by Kenneth Anderson

The National Journal has a two part cover story, January 9, 2010, on Predator drone strikes — required reading for those following the targeted killing and Predator drone developments, and although it is behind a subscription wall, no question that this National Journal issue is making the rounds of Washington and the agencies.  If you follow this topic, you’ll want to make sure you get a copy.

Part 1:  ‘Wanted: Dead’:  With little public debate or notice, the Obama administration has significantly stepped up its targeted assassinations, by James Kitfield. Well-sourced, well-researched story on the ramping up of targeted killing by the administration.

Part 2:  Are Drone Strikes Murder?  A growing number of experts say the legal foundations for targeted drone killings are shaky at best, by Shane Harris. Harris has sought out a wide variety of legal views for this piece, and the result is the best journalist take on the legal issues involved that I’ve read.  In particular, Harris has understood several things no other journalist has (at least that I’ve seen), including the importance in this debate of the customary international law of self-defense, and the controversies over what it makes to undertake “direct participation in hostilities” so as to make yourself a possible target.  Harris interviews a range of sources with, I guess, me on one side, and Mary Ellen O’Connell and Nils Melzer on the other.  But also John Radsan, William Banks, Matthew Waxman, and more — and lots of NGO folks, too.  This piece gets the argument over the law better than any journalism I’ve seen, and Harris has spent lots of time interviewing experts in depth to understand what’s at stake.

Not only is use of Predator drone strikes expanding, indications are that the Air Force has been moving forward with new and more discriminating technology – the “micro-drone” appears to be under development, according to a source indispensable for the outsider keeping up with military robotics, Wired’s Danger Room.  I will get around to putting up a bibliography of new SSRN papers on this topic – Mary Ellen O’Connell, Jordan Paust, John Radsan, others – for now, just want to emphasize that it is not going away as a debate.

Whatever Happened to Biosphere 2?

by Chris Borgen

With all the talk about the environment and climate change and the with success of eco-themed TV show Life After People, I was struck by this blog post/ photo essay at BLDGBLOG on the degradation of Biosphere 2, the experiment in building a self-contained ecological biosphere in a set of buildings in the Arizona desert. (You can see it in better condition here, with the cheery tag “Biophere 2: Where Science Lives”).

It’s a haunting set of images, punctuated by the possibility that the whole site will be converted into a suburban development called “Biosphere Estates.” No punchline needed after that.

Thomas Franck Tribute

by Roger Alford

The New York University Law Review has just published an issue in tribute to Thomas Franck. It includes reflections by Richard Revesz, Thomas Buergenthal, Normen Dorsen, Michael Glennon, Harold Koh, Miriam Shapiro, Chris Borgen, Peter Gutherie, and Michael Mattler.

Here is a taste from Harold Koh:

As I write this today, from the Legal Adviser’s chair, I realize that I and our country have not thanked Tom Franck enough. In an academic world that is often cold, he was always warm. In a political world where cynicism reigns, he was always an idealist. In a human world that often disappoints, he never disappointed. We do not just mourn the passing of Tom Franck. We say goodbye to Tom the Frank, Tom the Fair, Tom the Friend. I will miss him, but I will not forget him. And his ideas and passions will never leave me.

And from Chris Borgen:

But I think of Tom Franck most often as a teacher who cared deeply for his students. Each year, he convened an international conference where the students in his fellowship program would present their papers. Always present was a who’s who of international law professors and diplomats from Africa, Asia, Europe, South America, and the United States. Consider how incredible this is: Tom put together his main program to showcase student work and put the experts in the role of commentators. Such generosity is all too rare. Tom was extraordinary, and he made the lives of those around him less ordinary.

Well worth a read to honor a great teacher, scholar and servant.

When Cooperation Fails

by Kal Raustiala

At Greg Shaffer’s invitation I’m joining the discussion to make a couple of small points about some of the concepts used in Greg and Mark’s very interesting and carefully researched book. The first concerns the GMO case as an example of a “regime complex.” When David Victor and I first proposed the concept of a regime complex, we used the example of property rights in genetic resources. (Raustiala and Victor, “The Regime Complex for Plant Genetic Resources,” International Organization 2004). But we suggested that many regime complexes existed, and that once scholars began to look at the world through this lens the limits of focusing on discrete institutions and agreements (ie “regimes”) would become clearer. 

Greg and Mark nicely illustrate why it is essential for international lawyers and political scientists alike to think in terms of sets of overlapping but distinct regimes, and to explore the dynamics that emerge from the interactions among these component parts.  I hope others follow their lead, because as the density of international law and institutions increases regime complexes will proliferate. For international lawyers, this is a slightly different spin than the more typical focus on “fragmentation.” Fragmentation is an important phenomenon, but I believe the more critical feature to focus on, as Greg and Mark do, is institutional overlap.

My second point concerns the soft law-hard law discussion now ongoing on the blog. While it is a small and perhaps even semantic point, I am not a believer in the utility of the concept of soft law. As I have detailed in other writings, I think that calling some sets of norms and agreements “soft” law makes little conceptual sense. (Here I part ways with two scholars I greatly respect, Duncan Snidal and Ken Abbott, whose framework Greg and Mark adopt).

Law is a formal category, though as self-proclaimed legal realists Greg and Mark know that many non-legal factors influence legal decisionmakers. The discussion now ongoing on the blog illustrates the problems with using the terminology of soft law, with its debate over whether some hard law has softened and vice versa. This language ultimately obscures more than it clarifies. So I endorse Tomer Broude’s suggestion that the terminology of hard and soft may not be that useful. At bottom, what is important is the way some actors in the GMO story create “strategic inconsistency” by creating and invoking a wide array of differing norms, some of which clash. That discussion is central to the book, and is impressively detailed. But employing the language of soft law is not necessary to this discussion, and I think it would have been even stronger without it.

Call for Papers: Women in International Criminal Law

by Kevin Jon Heller

My friend and IntLawGrrl contributor Beth van Schaack has asked me to post the following call for papers:

Call for Papers: Women & International Criminal Law

Special Issue of the International Criminal Law Review

Dedicated to Judge Patricia M. Wald

The International Criminal Law Review invites submissions for its 2010 special issue entitled “Women and International Criminal Law,” to be guest-edited by Diane Marie Amann, University of California, Davis, School of Law; Jaya Ramji-Nogales, Temple University Beasley School of Law; and Beth Van Schaack, University of Santa Clara School of Law. The Special Issue is dedicated to Judge Patricia M. Wald, a pathbreaker in international criminal law who has served as Chief Judge for the U.S. Court of Appeals for the District of Columbia Circuit, a Judge on the International Criminal Tribunal for the Former Yugoslavia, a member of the Iraq Intelligence Commission, Co-Chair of the American Society of International Law Task Force on the International Criminal Court, and Chair of the Board of Directors of the Open Society Justice Initiative.

This special issue is devoted to the topic of women and international criminal law. The majority of the articles have been solicited from prominent academics and practitioners in the field of international criminal law and feminist jurisprudence, such as Justice Ruth Bader Ginsburg, Prof. Jenny Martinez, Dean Martha Minow, Prof. David Luban, Prof. Leila Nadya Sadat, Prof. Naomi Cahn, and Lucy Reed. The editors have also reserved several slots for submissions in response to this call to papers. Submissions should be inspired by this theme statement…

The entire call for papers is below.  It sounds like a great conference.  I actually just finished writing the section of my book on women prosecutors at the Nuremberg Military Tribunals.  Unlike the IMT, at which not a single woman spoke for any of the Allies, more than a dozen women played significant roles in the NMT trials — a tribute to Telford Taylor’s progressiveness.  Indeed, only five of the twelve trials did not involve a woman prosecutor: Pohl, Flick, Hostage, Einsatzgruppen, and High Command.  Three women appeared in Farben, and Cecelia Goetz was an Associate Counsel in Krupp, a position that involved supervising six male prosecutors.

Libyan Terrorist Victims Argue for Retention of U.S.-Libyan Treaty Funds

by Roger Alford

My former Pepperdine colleague, Kathryn Lee Boyd, has just filed a fascinating complaint relating to the distribution of funds secured by a treaty between the United States and Libya on behalf of U.S. victims of Libyan-sponsored terrorism.

The facts as alleged in the complaint of Davé v. Crowell & Moring are complex. In brief, Libya has been implicated in terrorist activities on numerous occasions, most notably the hijacking of Pan Am Flight 73 in Karachi, Pakistan on September 5, 1986 and the bombing of Pan Am Flight 103 over Lockerbie, Scotland on December 21, 1988. In 2005, victims of these terrorist attacks and their heirs—including American and non-American victims—retained the law firm of Crowell & Moring—known for representing victims of terrorism—to pursue litigation against Libya. The Davés were among those who signed the Crowell & Moring retainer agreement. As part of retaining Crowell & Moring, every client was also required to sign a joint prosecution agreement (“JPA”), a provision of which provided that the proceeds recovered by any signatory to the JPA shall be shared on a sliding scale based on type of injury with all signatories to the JPA, without distinction as to nationality. Only 23% of the victims who signed the JPA were American. A Liaison Group consisting of one American and four non-Americans was established as agents for the victims in their dealings with litigation counsel. The Liaison Group was represented by Latham & Watkins. In 2008, the United States government entered into a bilateral treaty with Libya for an award of compensation for all U.S. nationals harmed by Libyan terrorism, including the victims of the Pam Am Flight 73 hijacking, which included plaintiffs Gargi and Giatri Davé. The treaty provided for distribution of these funds through the Justice Department’s Foreign Claims Settlement Commission (“FCSC”). After the Davés successfully received notice of their entitlement to millions under the FCSC process, Crowell & Moring issued a demand letter to the Davés contending that under the retainer agreement and the JPA the funds secured by the United States government pursuant to the U.S.-Libya treaty on behalf of American victims are to be shared among all of the victims of Libyan terrorism, American and non-American alike. In other words, the vast majority of the funds secured by American nationals under the U.S.-Libya treaty are—approximately 90% according to Crowell & Moring—required to be paid to non-Americans pursuant to these private agreements.

Do “Lead” Articles, You Know… Lead?

by Kevin Jon Heller

I have a scholarship question for our readers, particularly those who have been article editors on a law review.  On three separate occasions recently, I have seen CVs that identify a particular publication as a “lead article.”  I always assumed that the order of articles in a non-thematic issue of a law review was more or less random — or at least not non-random enough to infer that the law-review considered the first article to be better or more important than those that followed. Am I mistaken in that assumption?  I hope I am, because a number of my articles have appeared first, so I’d like to start bragging…

Thoughts?

The Interaction of Hard and Soft Law in International Governance

by Greg Shaffer and Mark Pollack

The complex and often antagonistic interaction of hard and soft law was clearly one of the most interesting points in the book for several of the commentators, as indeed it was for us. Our core argument here is that hard and soft law can serve not just as complements but also as “antagonists,” both in a conflict-of-laws sense and in a strategic sense whereby states (or non-state actors) deliberately use new legal provisions (typically soft law) in an attempt to undermine existing (mostly hard-law) provisions. This is an argument that appears in Chapter 4 of When Cooperation Fails, and we have since further formulated the theoretical argument, generated testable hypotheses, and examined the interaction of hard and soft law in several empirical cases in an article to appear this month in the Minnesota Law Review (Gregory C. Shaffer and Mark A. Pollack. “Hard Law vs. Soft Law: Alternatives, Complements and Antagonists in International Governance,” available here on SSRN). We would direct anyone interested in the question of hard and soft law to that article, but we address three issues here.

The Usefulness of the Terminology

First, Tomer concludes his excellent post by questioning the usefulness of “hard law/soft law” terminology. Here we think it helpful to distinguish an ex ante perspective regarding how parties design agreements, from an ex post one regarding how these agreements have effects. We adopt the Abbott-Snidal characterization of hard- and soft-law agreements which vary along a continuum in terms of the three characteristics of obligation, precision and delegation to third party dispute settlement. We agree with Tomer that any particular agreement (including WTO agreements) can have hard- and soft-law features. Indeed, part of the virtue of the Abbott-Snidal typology, often lost in subsequent applications, is the disaggregation of those terms into three distinct dimensions, such that an institution such as the WTO can be characterized relatively hard along the dimensions of obligation and delegation, with precision varying from article to article of the agreements in question.

From an ex ante institutional design perspective, Abbott and Snidal’s typology presents a useful framework for problematizing the choices that parties face in negotiating and entering into agreements that have varying degrees of obligation, precision and delegation. From an ex post socio-legal perspective, moreover, Abbott and Snidal’s scheme provides an intellectual starting point for asking whether and when harder- or softer-law regimes interact as alternatives (each with its own strengths and weaknesses), as complements (each elaborating and building on the other), or as antagonists (each potentially undercutting the substantive norms and procedural advantages of the other). We believe that all three types of interactions are possible, but the existing literature has largely ignored the third option of antagonism, which we explore in our book and article.

Has WTO Law Been Softened?

Second, Tomer questions whether WTO law has indeed been softened by its interaction with neighboring soft-law regimes in the case of the WTO SPS Agreement. We again elaborate our views in the article. To understand the potential impact of soft-law provisions from one international regime on the judicial application of relatively hard-law texts in another, we adopt a legal realist theory of judicial decision making, as opposed to a formalist one. The core legal realist claim is that, in practice, judges decide cases in response to factual context and not simply in response to formal rules and legal doctrine. Judges are viewed as situated decision makers who respond to disputes in light of particular social, political, and historical contexts which shape their views of the facts of a particular case. These contexts include the existence of neighboring soft-law regimes. That is why, in our view, actors strive to create them.

From a legal realist perspective, when WTO panels and the WTO Appellate Body interpret WTO texts, it is highly unlikely that they will formally declare that they are taking into account soft-law provisions and norms from a separate regime if they find that such provisions or norms are outside of their jurisdiction. Yet a legal realist does not look only at what judicial bodies say formally, but also at what they do in terms of judicial outcomes. In interpreting texts, panels and the Appellate Body always have some leeway. As legal realists, we predict that soft-law provisions can indirectly inform the interpretation and application of existing WTO texts and thus shape the outcome of WTO panel and Appellate Body decisions. From a rationalist perspective, panelists or Appellate Body members may wish to limit the tension between the WTO and other regimes in a fragmented international law system or seek to limit political backlash against their decisions that touch on environmental or social issues, the potential of which is reinforced and signaled by such other regimes. In doing so, panelists and the Appellate Body could facilitate greater acceptance of their decisions, reducing the severity of challenges to their legitimacy.

Alternatively, from a constructivist perspective, WTO jurists may be affected by and internalize principles and norms from neighboring regimes, and incorporate those principles and norms into their reading and application of WTO texts. Sometimes the judicial body may be rather explicit, as the Appellate Body was in the famous US-Shrimp-Turtle case, interpreting the meaning of WTO texts in a contemporary context that included soft-law environmental norms codified in treaties that it cited. At other times, the judicial body may be silent but still take account of those soft-law norms. We are not contending that WTO panels invariably change their decisions, directly or indirectly, to take account of soft-law norms in neighboring regimes. We rather contend that the opposing party will press them to do so, and in some contexts, it will be successful.

As Rebecca points out in her thoughtful post, we show how the WTO panel faced a number of interpretive choices in the GMO case, having distinct institutional implications, and thus ultimately affecting “who decides.” As a side note, we point out that our assessment of the governance tradeoffs in these institutional choices aligns us with the “global administrative law” perspective associated with Benedict Kingsbury and Richard Stewart at NYU.

Evolutionary vs Revolutionary Changes from Hard-Soft Law Interaction.

A third interesting challenge to our conceptualization of hard and soft law as antagonists comes from Margaret de Guzman. In a colloquium discussion of the book at Temple Law School, Meg questioned our distinction between the “complementary” and “antagonistic” use of hard and soft law. In our view, states and other actors in the GMO case, and in other cases such as intellectual property rights and the protection of cultural diversity, deliberately employ soft-law instruments in an effort to undermine or modify the interpretation of existing hard-law rules. This, we argue, is a distinctive use of soft law that is not captured in existing accounts, where soft law is depicted as elaborating, specifying, and “progressively developing” existing hard law. (Again, see our article for our typology of the existing literature as legal positivist, rational choice institutionalist, and constructivist).

Meg and others point out that much of the so-called “progressive development” of international law, and especially customary international law, begins with states undertaking practices or putting forward legal interpretations that to some extent are at odds with existing understandings of law. Of course, to the extent that other states accept these actions and the legal understandings behind them, customary international law “progressively develops” (although the use of the term “progressive” is problematic to many). The point is that some degree of “antagonism” seems inherent in this process.

This contention calls to mind Larry Helfer’s excellent discussion of what he calls “counter-regime norms.” Like us, Larry believes that states frequently put forward soft-law proclamations designed to weaken existing laws. In doing so, Larry distinguishes between “evolutionary” and “revolutionary” counter-regime norms. As he writes:

“How such challenges unfold depends in part on the degree of dissonance between established and emerging legal prescriptions. Disadvantaged actors may articulate counterregime norms that only incrementally modify existing rules but leave uncontested the broader principles from which those rules emanate. A state or an NGO might, for example, object to treaty obligations that require recognition of specific types of patentable subject matter or that narrow the exceptions to a patentee’s exclusive rights without questioning the broader innovation objectives that a patent system serves. In other instances, counterregime norms may be revolutionary rather than evolutionary, posing more fundamental challenges to underlying principles. Actors who question the economic and social benefits of granting intellectual property rights to foreign creators and inventors are asserting norms that fall into this latter category.” (Laurence R. Helfer, “Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking,” Yale Journal of International Law, Vol. 29, No. 1, at pp. 1-83, at 14-15).

In our view, most of the existing literature on hard and soft law presupposes an “evolutionary” relationship between hard and soft law, with the latter elaborating and filling in the blanks of the former. This is indeed often the case, we argue. However, where states have sharply differing views and multiple fora in which to express them, soft-law instruments may indeed pose “fundamental challenges” to the “underlying principles” of existing international law. There is of course not a clear line between “complementary” and “antagonistic” legal norms (to use our terms) – or “evolutionary” and “revolutionary” counter-regime norms (to use Larry’s terms). Yet we believe that, under certain conditions, the latter are more common and more important than the existing literature suggests, and can lead to stalemates that are quite persistent over time.

An Initial Response: Framing Biases and the Role of International Law in Dispute Management

by Greg Shaffer and Mark Pollack

We are grateful for the praise and the criticisms of our book from distinguished scholars like Sungjoon Cho, Rebecca Bratspies, and Tomer Broude. We are particularly pleased that all three appreciated our efforts to engage in an interdisciplinary and multi-level analysis, to do empirical justice to the complexities of the GMO dispute, and to identify the broader implications of the case for the study of international law and politics. We address three issues in particular that deserve a response: our biases in the US/EU dispute; the question of how the dispute might be managed while respecting both sides’ interests and normative frameworks; and the question of how hard and soft law interact in this case and in others. We will deal with the first two here and the other one on hard-soft law in a separate post.

Where Do Our Sympathies Lie?

Our primary aim in When Cooperation Fails is analytic – to understand the roots of the dispute, the various failures to resolve it through bilateral and multilateral cooperation, the international law that has arisen from it, and the impact of that law, in particular of WTO dispute settlement. In doing so, we reveal one explicit normative bias, namely in favor of careful and realistic dispute management, which recognizes the limits of cooperation and respects the democratically adopted regulatory frameworks of the two sides, yet also encourages both sides to take into account the effects of their policies on third parties – and, in the process, to avert a mutually harmful trade war. Even here, however, we have kept our own normative views in the background, choosing instead to highlight our positive analysis of the obstacles to successful cooperation and to any reform of deeply entrenched domestic regulatory frameworks.

By contrast, we have tried hard to avoid taking sides in the normative dispute between the US’s more permissive (or “science-based” – a term we deliberately insert in quotations) approach and the EU’s more precautionary approach. One of us (Pollack) is primarily a scholar of European Union politics, while the other (Shaffer) undertook much of his research for the book in Brussels, Geneva, and Rome, visiting the headquarters of various international institutions. As a result, we believe that we understand the EU approach and position at least as well as the American. We do not assume that the more precautionary European approach to GMOs is either protectionist or irrational, and we agree with scholars like Jonathan Wiener and Michael Rogers who note that the United States is strongly precautionary in other areas such as the regulation of carcinogens and nuclear power. We also do not advocate the convergence of the EU regulatory framework on the US model (or vice versa), nor do we believe that such convergence is likely anytime in the near or medium-term future.

That being said, we do not contest that any piece of scholarship frames issues, and that such framings have implications for normative position-taking. To the extent that we do, as Rebecca suggests, adopt language that appears tilted in favor of the US approach, we suspect that this reflects in large part our focus on the role of international trade law, which as we note in the book is more congenial to the US approach due to its emphasis on scientific risk assessment and its silence on other socioeconomic or normative criteria that public officials might wish to take into account when regulating GMOs.

Regarding the reference to the EU regulatory system as a Potemkin village (261), this is indeed a widespread complaint among foreign stakeholders, and also among European biotech firms such as Bayer Cropscience, which have seen their applications stalled for years in the EU regulatory process with no substantive engagement. We frankly have some sympathy with this view, but we see it not so much as a bias in favor of the United States position, but rather an observation that the letter of EU law often masks a regulatory practice which is guided less by scientific risk analysis or policy deliberation than the EU’s own directives, regulations and policy statements might lead one to believe.

As regards the statement in quotes that “states have the right to be irrational,” that quote is from a European theorist of deliberative democracy applied to the GMO debate, not from us. Our point in the passage (209) was to note the tensions between the statement of a “right to irrationality,” on the one hand, and the very notion of deliberative democracy, on the other, as well as the fact that the statement ignores the impacts of EU measures on others, including on investment in technological developments in less developed countries, which we address in the book’s final chapter.

In any event, we hope, and believe, that none of our analysis in the book relies in any way on a preference for one or the other regulatory framework, both of which appear to be here to stay with only minor, path-dependent changes at the margins.

Managing, if Not Resolving, the Dispute

A common theme of all three commentators is an appreciation of our claim that neither traditional cooperative efforts nor WTO litigation is likely to settle the dispute definitively and force convergence of the two very different regulatory frameworks.

Nevertheless, the period since the adoption of the WTO panel ruling in December 2006 has been striking in terms of the relative peace between the two sides, with the United States agreeing to hold off on withdrawing trade concessions from the EU pending compliance, and indeed with Canada settling its dispute with the EU over the issue. To some extent, we argue in the book, this is due to market developments in the US, where farmers and biotech firms have grown increasingly skittish about adopting new biotech crops prior to approval of those crops in major export markets such as the EU.

In addition, however, a major element in the ongoing truce between the two sides has been the sophisticated (if sometimes thankless) strategy employed by the European Commission to defuse the conflict while retaining the essential features of the EU regulatory system. Immediately following the issuing of the WTO panel decision, the Commission attempted to overturn national safeguard bans on the importation and cultivation all GM crops that had been judged safe by the EU’s own food safety authority, only to see those efforts rejected by majorities in the Council of Ministers.

Since then, the Commission has adopted a more moderate approach, tacitly accepting member states’ deep-seated opposition to cultivation of GM crops on European soil. Instead, the Commission has focused its approvals, and its challenges to national safeguard bans, on a limited number of products that are economically important to US and Canadian farmers and biotech firms. In our view, the Commission’s strategy is interesting in terms of the interaction of domestic and international law and politics. By focusing on the sale (as opposed to the cultivation) of a limited number of GM crops that Canadian and US farmers actually care about, the Commission may succeed in defusing, if not eliminating, the long-standing transatlantic GMO dispute – and in so doing, reduce the international legal pressure on the EU to reform or weaken its own rules.

The Commission strategy has indeed already paid off with Canada, which withdrew its WTO complaint against the EU in July 2009 after the Commission pushed through approval of the GM flax that Canada seeks to export to the EU. At this writing, the limited number of EU approvals has not yet satisfied the US, but even the US has so far agreed not to impose trade sanctions against the EU, as it is legally entitled to do, while the Commission continues its efforts to approve particular GM foods, such as various corn varieties that are commercially important to US farmers, and which are of often used in animal feed.

D.C. Circuit Speaks on Gitmo Habeas Merits

by Deborah Pearlstein

Cross-posted at Balkinization

The new year starts with no shortage of Gitmo-related matters to blog about, starting with today’s important decision from a panel of the D.C. Circuit Court of Appeals ruling (for the first time) on the merits of one of the few dozen decided Gitmo habeas petitions. The ruling, affirming the lower court’s decision to deny habeas to a Yemeni detainee, is here.

There a host of interesting holdings here – both on the question of who may be detained under the 2001 Authorization for the Use of Military Force (AUMF), and to what procedures they are entitled in determining their status. But the panel’s ruling on how to interpret the AUMF – namely, that the meaning of the AUMF is not constrained or apparently informed by the international law of war (IHL) – is one of the most troubling highlights.

Before embarking on its analysis of who may be detained under the AUMF, the panel majority writes: “The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” While “the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks …, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

Not entirely clear exactly what this means, but let’s start with what this says about the state of judicial deference to executive interpretations of international law. The Obama Administration, after all, had squarely taken the position in briefing the Gitmo cases that IHL directly informs the interpretation of the AUMF. (The Administration also just succeeded in persuading Congress to delete from the latest version of the Military Commissions Act language from the Act’s 2006 version that prohibited so much as the invocation of the Geneva Conventions as a source of law in any U.S. court.) Given how much time courts – especially the D.C. Circuit – have devoted historically to explaining how the President is entitled to deference by the courts on matters of foreign affairs and national security, curious at least that the Administration’s view of this particular question evidently merited no such attention.

Then there’s the matter of the accuracy of the panel’s sweeping – and gratuitous – statement that the international laws of war are not a source of authority for U.S. courts. Set aside the fact that the executive disagrees. And the fact that a majority of the Supreme Court justices in Hamdi also thought international law informed the AUMF’s interpretation. Even the Supreme Court’s recent Medellin decision – with its suspect and starkly limited understanding of the effect of treaties in federal court – seemed to understand that whether or not a treaty is “self-executing” or not (i.e. whether it is a source of authority in U.S. courts) depends not only on the particular treaty but also on the particular provision within the treaty. The D.C. Circuit panel doesn’t pretend to undertake any such analysis. Rather, it finds simply “no occasion… to quibble over the intricate application of vague treaty provisions and amorphous customary principles.” It may be true that IHL ultimately provides inconclusive guidance in settling the legality of detention in a particular case. But the panel here reached out far beyond that in waving aside the Geneva Conventions – and any other source of international law – in their entirety. Poorly done. And rich fodder for appeal.

Firm Whites and Runny Yolks in WTO Law

by Tomer Broude

[Tomer Broude is a Senior Lecturer, Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem; the following post continues our conversation on Shaffer and Pollack’s <em>When Cooperation Fails</em>]

Mark Pollack and Greg Shaffer well deserve the praise that the previous commentators have given them for their study of the transatlantic law and politics of GMOs, “When Cooperation Fails”. Empirically, the book is a model of qualitative research, in some parts following the lines of Greg’s superb <a href=”http://www.amazon.co.uk/Defending-Interests-Public-Private-Partnerships-Litigation/dp/0815778317″>Defending Interests</a>. The theoretical dimensions of the book masterfully bridge between different IR and IL discourses, especially the legalistic problem of regime fragmentation and the political question of regulatory cooperation. Most importantly, the authors are not wedded to a particular theoretical framework; they use the full toolbox, not just a hammer.

For non-specialists, one of the most interesting issues dealt with in the book (in chapters 4 and 5) is the interaction between ‘hard’ and ‘soft’ law. In theory, Greg and Mark eschew the binary connotations of these terms, arguing instead that hard and soft law form a continuum. Nevertheless, in practice they do tend to treat WTO law as remarkably hard, in contrast to the ‘soft’ law OECD and Codex Alimentarius Commission’s (CAC) normative outputs, and this colors their analysis. In this respect, I prefer their theoretical statements: WTO law is not as hard as it appears; in many areas, it is a bit like a medium-boiled egg (GM or otherwise), with a firm white but runny yolk. Let me focus on this point here.

In dynamic terms, Mark and Greg convincingly show that the soft law of the Codex Alimentarius Commission has been hardened through direct incorporation of standards into the WTO’s SPS agreement and through WTO jurisprudence. I think that this is a relatively uncontroversial point. What I found much less convincing is the author’s symmetrical contention that the WTO’s ‘hard’ law, especially its dispute settlement system, has somehow been ‘softened’ by the GMO dispute. There are a few problems in this argument.

First, was/is relevant WTO law ‘hard’ to begin with? The SPS is undoubtedly a ‘hard’ law instrument, but it has significant islands of ambiguity, constructive and otherwise. The GMO panel may have leveraged the imprecision of the SPS, but it did not invent it, the parties did.

Second, the authors relate to the GMO panel’s emphasis on procedural and formal questions, with the implication that by avoiding making rulings on the substance, the panel softened WTO law relating to GMOs – seemingly a classical case of issue avoidance through procedure. But while I would agree that the panel’s formal/procedural approach is a flight from politics, I am not sure that it is a flight from law; in other words, it is less than clear that if the panel had overcome the temptation to focus on procedural questions, it would have found solid and precise (or ‘hard’) substantive law to apply.

Third, even if the GMO dispute shows a ‘softer’ side of WTO law, this specific ‘softness’ does not seem to have had any special impacts on the regime as a whole. In this context, it is particularly interesting that the US and EU chose not to appeal the panel report, relegating it to that category of WTO jurisprudence that has much lesser effect on the development of WTO law. In other words, the international legal expression of the GMO dispute has, at least, so far, ended with a (1300 page long) whimper, rather than with a bang. In any case, I would at least like to think that the GMO panel is far from a representative example of WTO jurisprudence, in more ways than one.

Fourth, it is important to note that even if the GMO panel report reflects any ‘softening’ of WTO law, it is not the result of an interaction with soft law, but an endogenous weakness of WTO law itself, in a particular context.

Overall, the analysis left me with the feeling that the distinction and terminology of ‘hard’ and ‘soft’ law, although interesting in theory, might not be as useful as we sometimes like to think.

A Failure of Cooperation or Cooperation of Failure?

by Sungjoon Cho

In their recently published book (“When Cooperation Fails”), Mark Pollack and Gregory Shaffer provided a rare panoramic view of one of the most intractable trans-Atlantic regulatory disputes, i.e., the regulation of genetically modified (GM) foods. One may discover the richness of their thorough study mainly in two aspects. First, the methodology which they employ is not only interdisciplinary but also “multi-disciplinary,” featuring a disciplinary pool of international law, political science and even sociology. Varying insights from such a multidisciplinary approach tend to offer readers a more complete picture of the trans-Atlantic GM saga. Second, the issues or topics addressed by the authors in relation to the GM dispute are all-encompassing. Yet they spell out these impressive details not in a linear but in a cubic fashion so that readers can obtain a vivid understanding of what is truly at stake in the dispute.

 

In this kind of dispute, which concerns a clash of two different regulatory regimes, it is quite easy, and tempting, to be “deterministic.” In other words, one might reasonably speculate that what has happened (such as the failure of cooperation) is attributable simply to some kind of “cultural essentialism.” In a most crude form, the GM foods dispute might originate from the fact that Americans are risk-friendly and Europeans risk-averse. However, the authors refused to take such wholesale determinism: instead, they try to present a more subtle thesis in which different institutional configurations have formed an inertia or path-dependency over time as they were shaped by certain contingencies (such as Reagan’s election and the pan-European food scandals). So, according to the authors, the status quo in both sides is “not preordained” by structural factors alone.

 

Nonetheless, the trans-Atlantic divergence (polarization) in the regulation of GM foods does reveal two different “philosophical” or hermeneutical patterns in perceiving (good) biotech “science.” Overall, the mode of scientific knowledge which the U.S. side applies here is a narrow, technical one depending largely on laboratory science (techne or episteme). In contrast, the EU side emphasizes a more common sense approach to biotech science (phronesis) which take seriously ordinary people’s perception of science in a given matter. Therefore, the U.S. side tends to condemn the EU position as a “bias” which must be remedied with enlightenment, while the EU side tends to criticize the U.S. stance as an attempt to “Americanize” the regulation of GM foods. This is a rather sterile condition for any meaningful deliberation. Again, as the authors recognized in a similar context, one should not jump to the conclusion that the U.S. side would always subscribe to techne/episteme and the EU to phronesis. Yet a combination of historical contingencies and institutional configurations somehow made such selective salience in both sides possible.

 

Nowhere but in the controversial Hormones decisions (in 1998 and 2008) under the WTO dispute settlement system could this paradigmatic conflict over science be witnessed. In both 1998 and 2008 decisions, positions on risk science between the panel and the Appellate Body were as contrasting as those between the complainant (the U.S.) and the defendant (the EU). Perhaps the antinomian legacy of the Hormones decision might have led the EC-Biotech panel to avoid, rightly, a substantive mode of adjudication. Dogmatic stances of both sides, whether they were pre-destined or merely fortuitous in their making, tend to advise against any Herculean role of WTO tribunal in delivering its own “right” answer in this type of dispute.

 

In closing, I agree with the authors that this dispute is something to be “managed” with patience, rather than “settled” once and for all. Managing the trans-Atlantic tension on GM foods regulation starts with the “fidelity to openness,” which pushes both sides to learn more about the other party’s position, including its policy rationale, context and tradition. Perhaps both sides should stop trying to “control” the situation: they should instead endeavor to “communicate” with each other. It may take a good deal of time before such communication bears any genuine trans-Atlantic regulatory breakthrough, be it soft or hard. Until then, both sides should learn to live not with the failure of cooperation but with the cooperation of failure.

Who Decides and Why?

by Rebecca Bratspies

I want to congratulate Mark Pollack and Gregory Shaffer for their recently published book When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford 2009). Using the WTO proceeding  as a focal point, When Cooperation Fails explores the vexing question of why multiple international and bilateral initiatives have failed to resolve the transatlantic GMO dispute. The book offers a clear and detailed tour of “the difficulties, limits, and outright failures of international cooperation” (pp. 3, 280) for regulating GMOs. It also details the success that international institutions and legal frameworks have had in channeling and managing the dispute in a fashion that has so far prevented a trade war.

Overall, the authors manage to inject some much-needed nuance into a discourse that is typically far too polarized and polarizing. In particular, I appreciated the book’s explicit dismantling of essentialist claims about an inherently “European” or “American” approaches to regulation. Instead, Mark and Greg meticulously detail something akin to a founder’s effect, with serendipitous first moves creating path dependencies that ultimately produce starkly different regulatory regimes.

Despite its narrow focus on GMOs, the book aspires to be much more than an account of a particular trade dispute, and to a large degree it succeeds in using the GMO dispute to test theories about transnational networks, epistemic communities and deliberative democracy. The theories emerge a bit battered, but perhaps also a bit more solidly rooted. In their articulation of what international law and institutions can achieve with regard to deeply politicized issues, Mark and Greg walk a careful line between so-called realism, which focuses solely on power; international relations theory, which focuses on convergences within networks of shared interests, and Habermasian deliberation. They offer valuable insights about the relationship between deliberation, distributive costs, and regime theory, and by highlighting the intersection points between theories that are too often considered in isolation they add a gloss to the international discourse. Indeed, their skillful treatment of this point is a key contribution to the literature.

Mark and Greg also do an admirable job of teasing out the complex dance between hard and soft law instruments in the context of agricultural trade. They are particularly successful at documenting how the GMO dispute has, at the same time, hardened some soft law instruments while also softening some hard law. This insight alone would make the book worth reading. Where the book falls down a bit is in exploring a central question embedded in this insight—whether it is appropriate for the WTO’s dispute resolution process to dramatically expand the reach of trade law into erstwhile domestic environmental, consumer and food safety law questions via broad application of the SPS Agreement premise that regulation must be based on scientific risk assessment.

It was here that found myself wishing for more. The book was far too willing to credit United States claims of “scientific” regulation, and to dismiss the European approach as invalid. For example, at one point the European position gets reduced to the argument that “states have the right to be irrational.” (p. 209). This framing hardly does justice to the European position. It is not irrational to conceive of risk assessment as a combined political and scientific question, one that captures both the acceptability and the magnitude of a risk. Nor is it irrational for domestic regulators to incorporate consumer protection, biodiversity and ethics in order to develop a holistic strategy for getting ahead of risk when making regulatory decisions about GM crops. Such an approach is certainly different from the one that has held sway in the United States, but it is perfectly reasonable. Nor is it irrational for states to respond to concerns that their citizens have repeatedly identified as a priority. These concerns instead represent a different vision of risk regulation, based on a unique set of experiences, and a different prioritizing of the questions and issues surrounding production of food.

Although the book nominally addresses the possibility of change within both regulatory systems, the thrust is on bringing the “political” European system in line with the “scientific” United States approach. Their sympathy for the US approach was patent, and at times that interfered with dispassionate analysis.

There is nothing wrong with taking a normative position that the United States has the better of the argument with regard to regulation of GMOS. GMOs are a fraught topic and it would be next to impossible to work in this area without developing sympathy toward one side or the other. I have often written about the tendency of pro-GMO and anti-GMO camps to talk past each other. For this reason, I appreciate the temptation not to take an explicit position in the hopes of getting the attention of all sides of the dispute. But, particularly when writing about a subject with ideological minefields, failing to openly acknowledge a normative position jeopardizes the authors’ credibility.

For example, it just doesn’t ring true to put the criticism of the EU regulatory system as a “Potemkin village” (p. 261) in the mouth of “many non-European farmers and traders.” (id.) Again, there is no reason the authors should not make this critique, but it seemed inauthentic to do so through invoking unnamed others who apparently view EU regulation as “lots of costly show . . masking a deeply politicized process. . . . “

Much of the book focuses on the central problem before the WTO: “who decides” and Mark and Greg do an admirable job of offering different theoretical windows on how this question might be answered. But again, I wanted a bit more engagement with first principles—in this case to explore more fully the rationale for allowing international trade law to dictate a common matrix for assessing risk, even when different domestic constituencies have dramatically different perceptions of risk and there is no allegation of discrimination against foreign producers. What is gained and what is lost by this particular hardening of soft law? This part of the WTO’s jurisprudence creates such widespread consequences that it calls out for a more rigorous exploration. The authors detail how WTO decisions harden soft law, but do not really confront the normative consequences.

Despite these criticisms, which are in many ways quibbles, I highly recommend When Cooperation Fails. The book is well-written and well-researched. It does an admirable job of explaining the WTO’s GMO decision (no mean feat given the length of the decision) and then effectively uses that decision as a lens for exploring some of today’s most important international law theories.

The Interaction of International and Domestic Law: Lessons from the Conflict over Genetically Modified Foods

by Greg Shaffer and Mark Pollack

As its title suggests, When Cooperation Fails has two distinct aims.  The specific empirical aim is to provide a definitive and theoretically informed account of one of the most bitter and politically charged international disputes of the past two decades, between the United States and the European Union over the regulation of genetically modified foods and crops.  Our theoretical aim, however, goes far beyond the specifics of the GMO case:  indeed, we seek to contribute to literatures in international law and international relations that identify the sources of international regulatory and trade disputes, the obstacles to successful cooperation, the interaction of hard- and soft-law international regimes, and the role of WTO dispute settlement in managing conflict.

Our approach is interdisciplinary, drawing from international law and political science, and multi-level, examining the recursive interaction of domestic and international law and politics over time.  We start by inquiring why the US and EU systems for risk regulation are so different in this area, then examine failed efforts to bridge these differences through transgovernmental networks and various multilateral regimes, and finally investigate how international law developments in these fragmented regimes have fed back into domestic legal systems in the US and EU as well as in emerging economies such as China, India and Brazil, affecting the future of genetically modified crops and foods.  Our central arguments can be boiled down to five key points.

First, on the domestic law front, we apply theories of comparative law and politics that attribute differences in domestic risk regulation to differences in organized interests, political institutions, culture and ideas, and contingent events.  We find that the best explanation for the differences lies not in “essentialist” forms of culture or regulatory approaches (such as US and European attitudes toward food, risk, technology or the precautionary principle), nor in institutions alone (such as US specialized agencies compared to European political processes), but in the ability of interest groups to capitalize on pre-existing cultural and institutional differences, with an important role played by contingent events such as the European food-safety scandals of the 1990s.  We contend that the stark differences in the US and EU regulatory systems were not preordained by interest-group, institutional or cultural configurations of the two sides, but were the result of multiple and, to some extent, contingent causes. Nonetheless, we show that the differences have become entrenched over time and are now strongly path-dependent and resistant to change.

Second, turning to the international level, we draw upon a growing body of international relations and international legal scholarship that focuses on the promise of regulation through transnational networks, with a particular emphasis on the prospect of “deliberation” as a form of decision-making in which governmental and non-governmental actors put aside fixed positions and negotiating tactics in favor of a collective search for better understanding and better policy.  We find, however, that the record of transatlantic deliberation on genetically modified organisms (GMOs) has largely been one of failure. Deliberation, we argue, is a hothouse flower that flourishes only under restrictive conditions. The sharp disagreements, intense politicization, and distributive conflicts that characterize agricultural biotechnology have all prevented US and EU policymakers from engaging in a joint deliberative search for the best policy in this area.

Third, we contend that the record of multilateral cooperation (undertaken within overlapping regimes such as the WTO, the Convention on Biodiversity, the OECD, and the Codex Alimentarius Commission), has been similarly limited, characterized largely by strategic maneuvering by both sides to “export” their own standards and their own principles for risk regulation, and to “forum shop” among the regimes most likely to produce each side’s favored outcomes, imposing most of the costs of adapting to new global norms on others. We argue that cooperation has been frustrated in practice by the existence of severe distributive conflict between the two sides, which has given rise to overlapping and (sometimes purposefully) inconsistent regimes for trade, the environment, and food safety. Furthermore, while a growing amount of scholarship has addressed the roles of “soft” law (which is formally non-binding) and “hard” law (which is formally binding and enforceable) as complementary and mutually reinforcing means for international problem-solving, we find that hard and soft law regimes can interact antagonistically.  More specifically, we argue, the interaction of overlapping regimes can serve to “harden” soft-law regimes like the Codex Alimentarius (which become intensely politicized rather than deliberative and technocratic), as well as “softening” hard-law regimes like the WTO and its dispute settlement mechanism (where judicial interpretation is potentially complicated by links to neighboring regimes). The interaction of hard- and soft-law regimes, rather than progressively moving toward a new consensus, may instead perpetuate substantive deadlock over regulatory approaches, especially where conflicts involve powerful states.

Fourth, we suggest that, despite considerable risks, the United States’ complaint before the WTO Dispute Settlement Body has offered the prospect of some clarification and mutual accommodation that had hitherto eluded the two sides in other bilateral and multilateral fora.  More specifically, we apply a comparative institutional analytic framework to examine the radically different institutional implications of the interpretive choices that the WTO judicial panel faced in the EU-Biotech case. We demonstrate how interpretive choices by a WTO judicial body can attempt to allocate decision-making to different institutional processes in which constituencies of different countries, with varying priorities, perceptions, and abilities to be heard, participate to varying and always imperfect degrees. We find that the WTO panel largely took a procedural approach in its decision, refusing to articulate a single substantive standard on GMO regulation, but instead insisting on certain procedural requirements that all states must observe in adopting their own domestic regulations. In the process, we contend, the WTO has empowered domestic political actors (such as the European Commission) with an interest in complying with WTO law, and, as a result, has encouraged regulators on both sides of the Atlantic to operate more transparently, taking into greater account the effects of their actions on third parties.

Fifth and finally, we return to the domestic level to assess whether several decades of discussion, negotiation, and litigation have resulted in significant reform and/or convergence of the two regulatory systems. We demonstrate that, despite some domestic changes on each side, the US and EU regulatory systems for agricultural biotechnology show few signs of real convergence toward a common regulatory model. There has, nonetheless, been some domestic change on both sides of the Atlantic, due at least in part to external pressures from international markets and international regimes. In the EU, the Commission and biotech companies have been somewhat empowered by international developments to resume approvals of new GM varieties after a long moratorium and to challenge member state bans against those already formally approved. On the US side, meanwhile, regulators have increased requirements for trials before the commercial release of many GM seeds so that these varieties, in fact, are treated distinctly from more conventional ones, despite official US proclamations to the contrary. Even in the absence of tightened regulation, moreover, US farmers have demonstrated a reluctance to adopt new GM foods and crops which they fear will be rejected in the EU and other large export markets.  The overall picture, we argue, is one in which the two regulatory systems for GM foods and crops remain essentially polarized, but where key actors on both sides struggle to minimize the economic impacts and political tensions of persistent regulatory differences.

In sum, the story of the transatlantic GMO conflict is largely one of failed attempts at bilateral and multilateral cooperation.  Yet our story is not a counsel of despair, for in addition to examining how and why cooperation fails, we address ways in which states and regimes can facilitate the ongoing management of regulatory conflict, and, over time, together with transnational market forces, influence national regulatory and commercial practices in a (somewhat) more accommodating manner.  System friction between two entrenched regulatory systems is unlikely to be decisively settled in the near future, but the dispute can be managed, with key roles for international law and international institutions.

OUP/OJ Book Discussion — When Cooperation Fails: The International Law and Politics of Genetically Modified Foods

by Duncan Hollis

Tommorrow, Opinio Juris is pleased to host a one-day discussion of the new book by Gregory Shaffer and Mark Pollack, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford, 2009)Sungjoon Cho and Rebecca Bratspies will join us with guest commentary.  For those interested in joining what promises to be a great discussion, here’s the abstract:

The transatlantic dispute over genetically modified organisms (GMOs) has brought into conflict the United States and the European Union, two long-time allies and economically interdependent democracies with a long record of successful cooperation. Yet the dispute – pitting a largely acceptant US against an EU deeply suspicious of GMOs – has developed into one of the most bitter and intractable transatlantic and global conflicts, resisting efforts at negotiated resolution and resulting in a bitterly contested legal battle before the World Trade Organization.

Professors Pollack and Shaffer investigate the obstacles to reconciling regulatory differences among nations through international cooperation, through the lens of the GMO dispute. The book addresses the dynamic interactions of domestic law and politics, transnational networks, international regimes, and global markets, through a theoretically grounded and empirically comprehensive analysis of the governance of GM foods and crops. They demonstrate that the deeply politicized, entrenched and path-dependent nature of the regulation of GMOs in the US and the EU has fundamentally shaped negotiations and decision-making at the international level, limiting the prospects for deliberation and providing incentives for both sides to engage in hard bargaining and to “shop” for favorable international forums. They then assess the impacts, and the limits, of international pressures on domestic US and European law, politics and business practice, which have remained strikingly resistant to change.

International cooperation in areas like GMO regulation, the authors conclude, must overcome multiple obstacles, legal and political, domestic and international. Any effective response to this persistent dispute, they argue, must recognize both the obstacles to successful cooperation, and the options that remain for each side when cooperation fails.

Separatists vs. Pirates!

by Chris Borgen

I know this sounds like the title of a movie franchise, but Brad Roth of Wayne State has alerted me to an op-ed in today’s New York Times that deals with both Somali piracy and unrecognized separatist regions. Jay Bahadur writes:

There might be another way to make greater strides against pirates. However, it would involve allying ourselves with a place that doesn’t exist: the autonomous region of Puntland, Somalia…

Contrary to the oft-recycled one-liners found in most news reports, Somalia is not a country ruled by anarchy. Indeed, it is a mischaracterization to even speak of Somalia as a uniform entity. It is an amalgamation of quasi-independent regions like Puntland, which was founded in 1998 as a tribal sanctuary for the hundreds of thousands of Darod-clan people fleeing massacres in the south. Puntland comprises one-quarter to one-third of Somalia’s total land mass (depending on whom you talk to) and almost half of its coastline…

In any serious attempt to combat piracy, Puntland must play an integral role. Yet it is not recognized as a legitimate actor in the region and has been financially abandoned by the international community, which continues to ignore the reality on the ground in favor of the flimsy transitional federal government, a 550-member parliamentary hodgepodge ruling over a few checkpoints in Mogadishu, hundreds of miles from any real pirate activity…

By contrast, argues Bahadur, the separatist region of Puntland is making efforts at providing coastal security.

Despite Puntland’s limited capacity, Mr. Farole [Puntland’s leader] is committed to taking the fight to the pirates. Indeed, the government of Puntland has been advocating a strict policy of nonnegotiation with pirates since the beginning of the crisis. On those occasions that Puntland’s tiny (and now defunct) coast guard has been given the authority by shipowners to liberate hijacked vessels, the pirates have tended to melt away, content to keep their lives rather than their prize.

Successful land operations in Puntland’s coastal towns have accompanied these marine assaults…

Bahadur argues that financial aid the to Somali federal government is money wasted; a smaller amount of aid to cash-strapped Puntland could significantly increase its ability to undertake such anti-piracy operations.

The U.S. has been exploring increasing ties with Somaliland, another separatist region with aspirations of statehood with which Puntland has had occasional military clashes. These cases show an interesting nexus in regional security initiatives and the politics of recognition. The Somaliland case has had more attention, as Peter Pham wrote, after a January 2008 visit, then-Assistant Secretary of State for African Affairs Jendayi Frazer

was careful to emphasize that the recent flurry of activity did not imply diplomatic recognition was imminent, noting that while “we have said on many occasions that the U.S. will continue to work with Somaliland, in particular, in the strong democratic values which Somaliland has succeeded in implementing,” the issue of recognition should be left to the African Union (AU), while America would “work with the AU and will respect whatever decision it makes on Somaliland’s status.”

Pham also noted that the AU’s report regarding Somailand stressed the uniqueness of the case. The AU report stated:

The fact that the union between Somaliland and Somalia was never ratified and also malfunctioned when it went into action from 1960 to 1990, makes Somaliland’s search for recognition historically unique and self-justified in African political history. Objectively viewed, the case should not be linked to the notion of ‘opening a Pandora’s Box’. As such, the AU should find a special method of dealing with this outstanding case…

So now Kosovo, South Ossetia, Abkhazia, and Somaliland are all “unique” cases…

Anyway, it will be interesting to observe how security policy and recognition issues affect each other.

RIP, Ian Brownlie

by Kevin Jon Heller

I have just been informed that Sir Ian Brownlie, one of the true legends of international law, has died in a car crash in Egypt.  I have no other information, as it has apparently not been reported yet.

Tremendously sad news.  I’m sure we will have much more information in the coming days.

A Newly Improved State Department Website

by Duncan Hollis

Happy New Year to all.  For those of you looking for “new” things in international law this year, check out the newly redesigned website of the Private International Law office in the State Department’s Office of the Legal Adviser (L/PIL for short).  It has links to other relevant websites and resources as well as listings of the status of U.S. treaties on issues of trusts and estates, family law, arbitration and judgments, judicial assistance and commercial law.  The lists are quite useful; they indicate not only which treaties the United States has (or has not) joined, but those where U.S. ratification remains actively under consideration as well as areas of on-going negotiation.  In addition, the site has a “Current Developments” section that provides updates on recent activity by the State Department in these areas.  My only complaint is that readers will apparently only get current development updates quarterly.  I’d prefer it if L/PIL could give more timely updates as they arise, rather than having such a regularized schedule (of course, if that’s too burdensome, L/PIL should just pass the relevant information along to us, and we’ll be happy to publicize it!).