Archive for
February, 2010

Karadzic “Regularly” Boycotts Trial

by Kevin Jon Heller

At least according to Dominic Hughes, a BBC reporter who obviously can’t be bothered to know what he’s talking about:

Perhaps not surprisingly Radovan Karadzic has been a reluctant participant in this trial.

The former leader of the Bosnian Serbs has appeared just a few times, regularly boycotting the process.

Apparently, “once” now qualifies as “regularly.”  Good job, BBC!

ADDENDUM: Hughes also claims that “[p]rosecutors have recently narrowed down the range of charges and specific instances in an effort to speed up the process.”  In the real world, of course, the prosecutors refused to narrow the charges, limiting themselves to reducing the number of municipalities at issue in the trial.  Apparently Hughes can’t be bothered to read, either.

Predators over Pakistan …

by Kenneth Anderson

My new Weekly Standard essay – although “polemic” is probably closer to it.  And thanks, Julian, for the plug below! Well, regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Opinio Juris and at Volokh Conspiracy.  I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently.  Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010).  It is also very, very long, at some 8,000 words — for which I am deeply grateful to the WS’s editors but you perhaps will not be — and so you might find it easier to read a pdf of the print edition at SSRN.

I have been meaning to add, though, that several positions are emerging in new scholarship coming out on this topic.  I’m not the only person defending “self defense” as the correct paradigm, for example.  Jordan Paust has an important new paper on this, and although we come to very different conclusions as to what and how self-defense does things for you, we share a foundation in international law of self-defense.  Mary Ellen O’Connell also has a well known position, ably set out in this book chapter, and which I criticize in passing in the WS.  John Radsan and Richard Murphy stake out an interesting position that calls for some form of judicial review of targeted killing, in this new Cardozo paper.  And, of course, the Ur-Text on the subject (even when I disagree with it!) Nils Melzer’s treatise, Targeted Killing in International Law (Oxford 2008), which I see is now out in paperback at $50 (but no Kindle edition).  I will come back in a separate post both to comment on some things from the WS essay at a less political level, and also to give a better sense of where my position sits in relation to others in the international law community.  Finally, I’d like to thank and congratulate the Harvard National Security Journal for its upcoming symposium on robotics, drones, and related topics this week – it promises to be very interesting, and I believe the journal might post some account of it or perhaps some video of the program.

New International Law Blog: McGill’s Legal Frontiers

by Chris Borgen

McGill University law students have started a new blog about international law, Legal Frontiers. Their official launch post states:

The goal of Legal Frontiers is to create a scholarly, social network where students interested in International law can identify key issues and challenges; test new theories; and draw attention to important causes, cases or alternative points of view. Having been inspired by a wide variety of legal blogs, we aspire to promote an emerging genre of writing, which we like to call “academic blogging”. We started this project because we believe that it is of the utmost importance to encourage students to actively engage with issues beyond the classroom, develop their own opinions, and learn how to clearly and effectively argue them.

Recent posts include a consideration of Canada’s diplomacy related to indigenous peoples, South Africa and climate change policy, and what the ICJ’s Kosovo decision could mean for the Palestine. It’s great to see law students as active participants in the blogosphere and also their being supported and encouraged by their faculty. Check this blog out.

Welcome to the international legal blogosphere!

Two Mistaken Defenses of Torture

by Kevin Jon Heller

Both Humblelawstudent and Stuart Taylor have criticized my previous post.  Both misunderstand the federal torture statute and the concept of torture in important — and unfortunately all too common — ways, so it is worth explaining their errors in a separate post.

Let’s begin with HLS.  He claims that, contrary to my assertion, “the statute requires the interrogator to actually cause “severe mental pain or suffering,” because “'[t]hreatening’ is only torture where the threat of the ‘infliction of several physical pain or suffering’ causes “severe mental pain or suffering.”  That is incorrect, although the poor drafting of the statute makes it an easy mistake to make.  Again, here is the text of the statute:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(C) the threat of imminent death.

The elements of torture are contained in the first paragraph of s. 2340.  As defined, the actus reus of the crime consists of three elements: (1) an “act”; (2) the commission of that act by a “person acting under color of law”; and (3) the commission of that act “upon another person within his custody or control.”  (1) is a conduct element; (2) and (3) are circumstance elements.  The mens rea of the crime is then the commission of the act with the specific intent to inflict “severe physical or mental pain or suffering.”

Notice what is missing from the crime: a consequence element.  Nothing in paragraph one requires the act to actually cause “severe physical or mental pain or suffering”; to be guilty of torture, the interrogator must simply specifically intend to cause it.  If he specifically intends to cause “severe physical or mental pain or suffering” but fails, he has still committed the crime.

To be sure, it is easy to misunderstand the crime as HLS does, assuming that the second paragraph of s. 2340 means that torture requires the act to cause a particular consequence.  The statute is not well drafted.  But paragraph two simply defines what it is that the interrogator must specifically intend to do — he must specifically intend his act to cause “severe mental pain or suffering,” which is defined as “prolonged mental harm.”  In other words, to be guilty of torture, the interrogator must specifically intend to cause “prolonged mental harm”; whether he actually causes such harm is irrelevant…

ECJ Rules that West Bank Goods are NOT “Made in Israel”

by Julian Ku

The BBC reports:

The European Court of Justice has ruled that Israeli goods made in Jewish settlements in the occupied West Bank cannot be considered Israeli.

This means goods made by Israelis or Jews in the West Bank cannot benefit from a trade deal giving Israel preferential access to EU markets.

At first glance, this seems like the correct result, especially given the existence of a separate EC-PLO trade agreement that is intended to govern such goods.  Moreover, according to the ECJ, Israel never responded to German requests to confirm the origin of these goods.  So Israel doesn’t seem to have much of a case here.

Of course, the result seems of dubious benefit to actual residents of the West Bank, but that is another matter I suppose (see here for an argument on this line). A fuller discussion of the opinion can be found here but I can’t seem to find the full judgment on the ECJ website.  Anyone who has a link should feel free to post it in the comments.

Targeted Killings: the NYT echoes Ken and Demands an Accounting

by Julian Ku

Our own Ken Anderson is one of the most knowledgeable and thoughtful legal scholars on the question of targeted killings by the United States. And he has noted here and the Volokh that he has developed a complex analysis of the U.S. policy toward targeted killings, which grounds such killings in the international law of self-defense rather than the law of war.  And he has criticized the failure of the Obama Administration to provide any legal justification for these killings.

Right on cue, Roger Cohen of the NYT argues for, basically, the same thing, although he is a bit confused in his argument.

Stuart Taylor’s Apologia for Torture

by Kevin Jon Heller

David Luban and Stuart Taylor are having an interesting exchange at Balkinization over whether the CIA’s use of waterboarding qualifies as torture under the federal torture statute, 18 USC 2340.  Luban accuses Taylor of embracing “the fundamental trick used by the torture lawyers: pretending that the legal definition of ‘torture’ is something technical rather than ‘colloquial’,” when in fact there is no meaningful difference between the two concerning torture’s requirement that the interrogator intentionally inflict “severe physical or mental pain or suffering.”  Taylor then accuses Luban of “grossly” misleading Balkinization’s readers about his argument, defending his claim that CIA waterboarding does not qualify as torture as follows (my emphasis):

The statute specifically sub-defines “severe mental pain” as occurring (for purposes of the statute) only if there is (among other things) “prolonged mental harm.”

Even OPR implicitly conceded that “prolonged mental harm” must mean more than a few minutes or hours of severe mental pain when it gave up on challenging the Bybee-Yoo interpretation of that phrase after Attorney General Mukasey’s response had shown OPR’s draft criticism to be an embarrassment to OPR.

And the statute’s specific intent requirement — which Luban conveniently ignores — makes it utterly clear that an interrogator who in good faith believes that neither prolonged mental harm nor severe physical pain would result from his actions cannot have violated the torture statute.

As Margolis found, 10,000-plus SERE trainees have almost unanimously reported that waterboarding caused no severe physical pain and no prolonged mental harm. This is dispositive as to “physical” and — together with the specific intent requirement — almost dispositive as to “prolonged,” given the assumptions that the CIA gave Bybee and Yoo about how waterboarding would be done and would be limited.

This sounds convincing — until one realizes that Taylor has conveniently ignored part of the torture statute:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(C) the threat of imminent death

As sec. 2340(2)(A) makes inordinately clear, an interrogator does not have to actually cause “severe mental pain or suffering” to be guilty of torture; he is equally guilty if he merely threatens to cause “severe mental pain or suffering” or “imminent death.”  That is a critical distinction, because it indicates why Taylor’s reliance on SERE waterboarding is anything but “dispositive”: even if we accept that SERE waterboarding and real waterboarding actually inflict the same amount of physical pain, they clearly do not threaten to inflict the same amount of physical pain.  SERE trainees know full well that they are not going to be waterboarded to death.  Detainees have no such guarantee, which is what makes waterboarding so terrifying.

And, of course, creating such terror is the entire point — the “specific intent” — of actual waterboarding.  There is a reason that interrogators want to make the detainee fear that he will be drowned if he does not cooperate: it is that fear that is supposed to convince the detainee to talk.  For waterboarding not to be torture, therefore, we have to assume that interrogators believe that detainees will talk even if they don’t fear being seriously injured or killed by the waterboarding.  But that is absurd: people like Taylor want to use waterboarding precisely because they believe lesser forms of interrogation are not “convincing” enough to crack hardened and highly-trained terrorists.

Taylor has no convincing objection to this analysis — which is no doubt why his response to Luban simply ignores the “threat” prong of the federal torture statute.  His only possible response is that the mental harm caused by real waterboarding’s inherent threat of death does not qualify as “prolonged.”  Once again, though, it is easy to see that the SERE analogy is inapposite: SERE waterboarding does not cause “prolonged mental harm” because the trainees know that, no matter how often they are waterboarded, they will not be killed.  A detainee, by contrast, necessarily suffers “prolonged mental harm” because, having been intentionally made to fear for his life once, he has no guarantee that he will not be waterboarded again — this time to death.  It thus makes no difference whether the detainee is only waterboarded once or, like Khalid Sheikh Mohammed, 183 times.  From the very first moment he is waterboarded, he suffers ongoing — prolonged — mental harm.

Taylor closes his reply to Luban by claiming “thus does Luban descend from weak, to weaker, to weakest, while consistently misleading readers throughout.”  That’s an ironic claim, given Taylor’s selective discussion of the federal torture statute.

YJIL Online Symposium: Glennon’s “The Blank-Prose Crime of Aggression” and Blum’s “The Laws of War and the ‘Lesser Evil'”

by Julian Ku


This coming Monday and Tuesday, Opinio Juris will be hosting its fourth online symposium in partnership with the Yale Journal of International Law. Each day, we will be hosting a series of posts revolving around Articles published in YJIL’s most recent Vol. 34-2, which is available for download here.

On Monday, Michael J. Glennon of the Fletcher School of Law and Diplomacy will be leading a discussion around his timely Article The Blank-Prose Crime of Aggression. In his Article, Glennon addresses the draft definition of the crime of aggression that was released in early 2009 and is set to be voted upon by the Assembly of States Parties to the International Criminal Court (ICC) this coming May. This crime has remained undefined since being included in the ICC’s underlying Rome Statute, for what Glennon maintains are good reasons. He argues that the crime of aggression is subject to too much disagreement among strong and weak states to reach the level of specificity necessary for imposing individual criminal liability. As a result, the draft definition is ambiguous, overbroad, and inconsistent with the Rome Statute’s own requirement that the court act consistently with internationally recognized human rights. Given these difficulties, Glennon argues that efforts to criminalize aggression along these lines be dropped. Anthony Clark Arend of Georgetown University and Larry Johnson of Columbia Law School will both provide responses.

On Tuesday, Gabriella Blum of Harvard Law School will be presenting her Article The Laws of War and the “Lesser Evil”. Therein, Blum notes that the international humanitarian law (IHL) governing armed conflicts often demands outcomes that run counter to our moral intuitions, particularly in situations where a technical violation of IHL may seem to be out scaled by significant humanitarian returns. By systematically addressing those arguments frequently leveled against shifting standards in such situations, she argues in favor of a humanitarian necessity justification for IHL violations, and attempts to design an effective and workable legal standard for implementing this justification in both IHL and international criminal law. She ultimately presents a standard that would exempt an actor from criminal liability for their conduct where that conduct was designed to minimize harm done to parties other than the actor’s own compatriots, those actions could reasonably be expected to be effective, and there were no less harmful alternatives under the circumstances to produce a similar humanitarian outcome. Matthew Waxman of Columbia Law School will respond to Blum’s argument.

We hope you enjoy the lively discussion that will no doubt arise around both pieces. And please be sure to make your own contributions in the comments sections!

The ECHR is Drowning in Cases

by Julian Ku

I’ve heard that the docket for the European Court of Human Rights is out of control, but a backlog of 120,000* cases is a little ridiculous.

There is no doubt about the seriousness of the situation in Strasbourg. Jean-Paul Costa, president of the European Court of Human Rights, has referred to it as extremely disturbing. The parliamentary assembly of the Council of Europe, which is responsible for the institution, has said the court threatens to suffocate.

A count late last year showed ‘Strasbourg’ has a backlog of over 119,300 cases, all complaints from European citizens who feel their human rights have been in some way violated. They did not get their way in their home countries and decided to plead their case at a higher level. Strasbourg is their last resort.

Reforms are planned. But given the size of the backlog, serious reforms are needed.

*Corrected from original post, which said “140,000”.

Drones as Strategic Airpower and the Light Cavalry?

by Kenneth Anderson

David Rittgers, a Cato legal analyst and former Special Forces officer, has an excellent op-ed in today’s Wall Street Journal on the use of Predator drones.  He cautions, on the one hand, against reflexively regarding drone attacks as nonjudicial execution or, really, functionally different from other weapons that soldiers might use — as well as cautioning against the idea that Congress or courts could somehow micromanage the use of these weapons.  On the other hand, he cautions against thinking that the problem of drones is that the US should be seeking to capture rather than kill because of the loss of intelligence; he notes that operationally, there are many reasons why capture is very often infeasible.  It’s a good piece, measured and sensible, and I highly recommend it.

I’ve been quiet around here in the last little while as I, too, have been writing about Predators and targeted killing — expanding and moving beyond my book chapter from last year  on this topic.  Barring some big news on health care or some such, the Weekly Standard will be running a piece from me next week arguing something I’ve developed at Volokh Conspiracy and here at OJ blog:  first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants. Continue Reading…

Commercial Whaling Makes a Comeback

by Julian Ku

It is amazing how much effort has been expended in countries like Japan and Australia to argue about whaling.  It is fascinating from say, a realist perspective, since it is hard to imagine that either side has any real meaningful national interest.  And as far as I can tell, Australia’s government is acting on essentially moral grounds, which is er, unusual to say the least.

Japan is ready for them, though.  In fact, they have apparently maneuvered the International Whaling Commission to consider lifting the ban on commercial whaling. They may even have the votes. And if they don’t, it is not clear to me why Japan could not simply withdraw from the IWC and start commercial whaling.  The International Whaling Convention (see Article XI) certainly doesn’t prevent a withdrawal and I am not aware of what other legal obligations regulate whaling in international waters.  The question for Australia, then, is whether it is worth trading the continuation of the IWC regime for the acceptance of commercial whaling.  This seems problematic as a matter of domestic Australian politics, although it seems like a fair compromise.

Americans Hate the UN Slightly Less, Gallup Poll Says

by Julian Ku

The invaluable “Turtle Bay” Blog points me to this recent Gallup poll on the U.S. public’s view of the United Nations.

I’m a bit surprised the UN polls so badly (26 percent is pretty low).  Then again, Americans are a tough lot. Congress rates even lower, and President Obama is heading in this direction.  So the UN is actually doing quite well…

Inching Toward Peace in Sudan

by Julian Ku

Despite all the grumbling from NGOs, there does appear to be some modest progress toward more peace and stability in Sudan.

Sudanese President Omar al-Bashir has signed a framework ceasefire deal with one of Darfur’s main rebel groups, the Justice and Equality Movement (Jem).

The power-sharing agreement in Qatar is seen as an important step towards peace, though the other main rebel group has refused to enter talks.

This is hardly peace in our time, but it is better than what we had before.  And let’s remember, as awful as Bashir, it is “war criminal” Omar al-Bashir who made this deal, and who will probably be re-elected later this year.  I suppose it would have no effect on this fragile peace deal if he was arrested now. None at all…

Falklands War Redux? Or Perhaps Its Time to Head to ITLOS

by Julian Ku

Emerging disputes over oil drilling and natural gas exploration in the Falklands should provide an ideal test case for international dispute resolution. Argentina appears to be ready to contest UK drilling for hydrocarbons in the Falklands’ exclusive economic zone.

Britain rejected Argentine objections to oil exploration off the disputed Falkland Islands on Tuesday, saying the drilling was within international law.

Argentine President Cristina Fernandez said Latin American leaders backed her objections to exploration off the Falklands, known in Spanish as Las Malvinas, as drilling began on the first well on Monday

I would not be surprised to see a submission to ITLOS or the ICJ here, as both countries are party to the UN Convention on the Law of the Sea and this appears to be a continental shelf issue. It sure beats a war.  I haven’t heard any threats of litigation yet, which suggests that Argentina has a pretty weak case.

Osiel on “Rethinking the Law of War Crimes”

by Kevin Jon Heller

The following is a guest-post — actually a short book-proposal — by my friend Mark Osiel, the Aliber Family Chair in Law at the University of Iowa.  I have agreed to post it despite the inordinate jealousy I feel toward his remarkable productivity.  Mark would greatly appreciate comments and criticisms, especially examples and counter-examples of what he is trying to get at.

Rethinking the Law of War Crimes: “Collateral Damage”and “Distinction”

Current law on war crimes is deeply disappointing to most people – public and legal professional — who pay it any attention, notwithstanding many prosecutions for mass atrocity by new international courts in recent years. Observers on both the Right and Left agree that the law’s expectations in this area depart radically from those of morality, that is, from any defensible conception of what a truly “just war” would look like, how it would be fought. Most concur that the relevant rules are far too generous to fighters at some points, too demanding of them at others; too weak in protecting innocent civilians, too indulgent of violence by other civilians. Wide agreement also exists that obvious aggressors would, in a genuinely just law of war, enjoy less legal protection than their aggrieved victims. The law will have nothing of this.

Those on the Left, especially, insist that a just law of war crimes would preclude the cynical invocation of “collateral damage” to excuse the eminently foreseeable killing of many innocents that has occurred in several recent confrontations. Many on the Right, particularly, proceed to denounce the habitual exploitation of civilian status and its protections by those organizing large-scale terror attacks on population centers while deploying their own civilians to “shield” military installations from counter-attack. Both ends of the political spectrum, as well as many people in between, concur that the disjuncture between law and justice has grown so great that longstanding international rules of war no longer merit respect or adherence. It is no exaggeration to describe the current situation as something of a crisis, one that – given its moral magnitude — should concern any conscientious citizen of the world.

How did the respective demands of law and morality in war apparently come to deviate so profoundly? Might anything be done to realign them?

The conventional account of law’s failings accusingly points to the world’s military powers who, immersed in the anarchy of global politics, find it necessary to make hard-hearted calculations of national self-interest in ways that severely limit the moral ambit and aspirations of international law…

Gloves are Sexy, But Are They Sexist?

by Roger Alford

That’s the question, sort of, raised in Totes-Isotoner v. United States, the most interesting tariff classification case you will ever read. Under the Harmonized Tariff Schedule, men’s glove have a tariff rate of 14 percent whereas gloves “for other persons” have a rate of 12.6 percent. An importer of gloves, Totes-Isotoner, argues that these duties unconstitutionally discriminate on the basis of sex.

The government raised several handy little arguments which the Federal Circuit quickly rejected. It argued that Totes lacked standing because every glove importer pays the same duty rate, and therefore Totes has suffered no injury-in-fact. Discriminate equally and there’s no discrimination! As long as you refuse service to every black customer, no black customer has room to complain. The Court described this argument as “frivolous” noting that “equal protection requirements still apply even though everyone in the targeted group is targeted equally.”

That conclusion went hand in glove with the next, which addressed whether discriminatory duties on gloves raised a political question. Imagine the embarrassment if we have multifarious pronouncements on the duty rate of gloves! The Federal Circuit rejected the argument out of hand, finding that “none of the cases cited by the government remotely holds or even implies that the federal courts are barred by the political question doctrine from reviewing federal statutes for compliance with equal protection guarantees.”

As to the key question of whether the duty rate on gloves unconstitutionally discriminates against men, the Court of International Trade said no because everyone cross-dresses these days anyway: men buy women’s gloves and women buy men’s gloves. “This … entirely misses the point,” said the Federal Circuit. “There is no serious dispute that men’s gloves are typically purchased for use by men and women’s gloves, for women.”

In the end the key question was not whether the differential duty rate had a disparate impact on men, but whether “Congress intended to discriminate against men in the tariff schedule.” Totes, of course, did not allege facts sufficient to infer a government purpose to discriminate against men. I’m not sure exactly what evidence that would be: a searching inquiry into the minds of government bureaucrats who write the tariff schedules to determine if they have special animus towards men, or men’s hands?

So men everywhere will continue to suffer in silence, going gloveless or paying an offensive and invidious 1.4 percent more on their beloved gloves. Meanwhile women will don their gloves at discriminatory prices, and continue to enjoy the kid glove treatment.

Obama Reduces the “Freedom of Religion” to the “Freedom of Worship”

by Julian Ku

So says Ashley Samuelson of the Becket Institute.  I’m not sure there has been a policy shift yet, but it is worth watching.

“Freedom of worship” first appeared in a high profile speech in Obama’s remarks at the memorial for the victims of the Fort Hood shooting last November, a few months after his Cairo speech. Speaking to the crowd gathered to commemorate the victims, President Obama said, “We’re a nation that guarantees the freedom to worship as one chooses.” Given the religious tension that marked the tragic incident, it was not an insignificant event at which to unveil a new way of referring to our First Freedom.

Shortly after his remarks at Ft. Hood, President Obama left for his trip to Asia, where he repeatedly referred to “freedom of worship,” and not once to “freedom of religion.”

Not long after his return, “freedom of worship” appeared in two prominent speeches delivered by Secretary Clinton. In her address to Georgetown University outlining the Obama Administration’s human rights agenda she used “freedom of worship” three times, “freedom of religion,” not once. About a month later, in an address to Senators on internet freedom at the Newseum, the phrase popped up in her lingo once again.

To anyone who closely follows prominent discussion of religious freedom in the diplomatic and political arena, this linguistic shift is troubling.

The reason is simple. Any person of faith knows that religious exercise is about a lot more than freedom of worship. It’s about the right to dress according to one’s religious dictates, to preach openly, to evangelize, to engage in the public square. Everyone knows that religious Jews keep kosher, religious Quakers don’t go to war, and religious Muslim women wear headscarves—yet “freedom of worship” would protect none of these acts of faith.

At Least One British Prime Minister Faces ICC Charges…

by Kevin Jon Heller

Sure, it’s in Roman Polanski’s new film, The Ghost Writer.  But it’s still cool — especially when the Prime Minister, played by an excellent Pierce Brosnan, is charged with war crimes and crimes against humanity for aiding and abetting torture by the United States!

I have to admit, I never thought I’d live to see Article 25(3)(c) of the Rome Statute — the aiding and abetting provision — read word-for-word in a film.  And that’s not all: not only does the film properly invokes Article 7 and Article 8 as covering crimes against humanity and war crimes respectively, the scenario it depicts could actually result in an ICC prosecution.

That said, the film does make two errors — one blatant, one subtle.  The blatant error is that it refers to the “Special Prosecutor” of the ICC.  The subtle error (minor spoiler alert!) is that it implies that an unwilling witness could be required to testify, when the ICC lacks subpoena power.

On the bright side, the “Special Prosecutor” in the film is a woman.  We all know that would be an improvement over the current one…

Who Needs the State Department?

by Julian Ku

The usual meeting of U.S. governors this year has an added wrinkle: the participation of premiers from Canadian provinces.

Provincial leaders wrapped up three days of meetings with U.S. governors in Washington, D.C., on Sunday and Manitoba Premier Greg Selinger said the unprecedented get-together paves the way for improved relations between Canada and the U.S.

“It’s the first time the governors and premiers as a group have met together,” he said. “It was a very positive tone and a welcoming tone.”

It wasn’t just for show. Serious talks between governors on border water sharing issues were discussed. A trend that I am sure will continue, as I predicted here.

The President Takes a Ruler to the Registry — Again

by Kevin Jon Heller

I am sitting in the Indianapolis airport as I write this, heading home from a conference on the Milosevic trial.  The conference was easily the most enjoyable I’ve ever attended — I vastly prefer small, specialized conferences to mega-events like the AALS or ASIL.  The attendees were a superb mix of academics, former OTP investigators and analysts, and defence attorneys.  I enjoyed their company immensely, especially that of a brilliant and feisty young Hegelian with whom I could have spent countless more hours bickering.  (Marx totally kicks Hegel’s butt.)

Not surprisingly, I was asked dozens of questions about Dr. Karadzic’s trial.  I couldn’t answer most of them, for obvious reasons, but I can happily report that the President of the ICTY has reversed yet another attempt by the Registry to punish Dr. Karadzic for exercising his right of self-representation, this time concerning funding.  The Registry has consistently sought to undermine Dr. Karadzic’s defense by relying on absurd interpretations of its Remuneration Scheme.  Most recently, it has insisted (1) that the defence team is entitled to only 250 hours of paid legal assistance per month during the adjournment phase (which will end on March 1), despite the fact that the Prosecution has disclosed another 300,000 documents since the beginning of the adjournment; (2) that the defence team is entitled to only 150 hours of paid legal assistance per month during trial, even though that would force Dr. Karadzic to dismiss seven of the eight members of his defence team before trial, leaving him with only one legal associate and no investigators or case managers; and (3) that Peter Robinson would continue to be paid 25 euros per hour, despite the fact that he will have more responsibility once trial begins, because the Trial Chamber has granted him the right to make legal submissions during trial.

To our great relief, the President reversed all three of those funding decisions….

LA Times Op-Ed Contributors on Targeted Killing and Presumed Mossad Hit

by Kenneth Anderson

Over at the Los Angeles Times opinion page today, Sunday, February 21, 2010, Marjorie Miller has lined up various folks to opine on targeted killing and the presumed Mossad hit in Dubai.  The offerings are very short — a hundred or so words each — but I had no idea when approached I would be in such exalted company, including Philip Alston, Amos Guiora, David Kaye, Vicki Divoll, and Michael Walzer.

The Ethics and Economics of Asteroid Mining (and the Role for Law)

by Chris Borgen

Over at, Brian Lamb reports on a lecture by Brother Guy Consolmagno, SJ, an American Jesuit who is a research astronomer for the Vatican Observatory (and has archived blog posts here). On the issue of asteroid mining (which we tangentially touched upon in this discussion on legal issues related to mining the Moon), Lamb describes the opening of  Brother Consolmagno’s argument:

Can you put a price tag on an asteroid? Sure you can. We know of roughly 750 S-class asteroids with a diameter of at least 1 kilometer. Many of these pass as near to the Earth as our own moon — close enough to reach via spacecraft. As a typical asteroid is 10 percent metal, Brother Consolmango estimates that such an asteroid would contain 1 billion metric tons of iron. That’s as much as we mine out of the globe every year, a supply worth trillions and trillions of dollars. Subtract the tens of billions it would cost to exploit such a rock, and you still have a serious profit on your hands.

Let me interject here on the economic incentives of asteroid mining. A 1997 review of a the book Mining the Sky by John S. Lewis (then-co-director of the NASA/University of Arizona Space Engineering Research Center ) noted that Lewis estimated that the main asteroid belt contains about:

825 quintillion (a billion times a billion) tons of iron – enough to build shells around planets, gigantic cities in space, and starships carrying entire civilizations. How much is this iron worth? Lewis performs a fanciful calculation: At present prices of around $50 a ton [that was in 1997], the asteroids yield $7 billion of the metal per person for everyone alive today, or an affluent standard of living for a population far larger. Moreover, iron is merely one element found in the Main Belt, which also contains gold, silver, copper, manganese, titanium, uranium, and much else.

So there may be substantial economic incentives to investing in asteroid mining. But, picking up now with Lamb’s precis of Brother Consolmagno’s lecture: Is it ethical? [More after the jump…]

Yale Journal of International Law Conference on Government Lawyering and International Law

by Julian Ku

The release of the final report on the Yoo/Bybee “torture memos” reminds us of how government lawyering can intersect with the interpretation of international law.  And so just in time, the Yale Journal of International Law will be hosting a conference next Friday, February 26, on “Government Lawyering and International Law.” Harold Koh, John Bellinger, and lots of other less famous but no less important and experienced folks will be participating. I don’t think I can make it up to New Haven this Friday, but I encourage those of you who can to attend.

David Margolis’s Whitewashing

by Kevin Jon Heller

I don’t have much time, but it’s important to note that although David Margolis may be a career attorney, he has made a career out of preventing government officials from being held accountable for their misconduct.  From Scott Horton:

But “Yoda” Margolis also knows the “dark side” of political intrigue. He was long the man to whom political appointees could turn for protection and guidance when the going got rough, in both Democratic and Republican administrations. For instance, Bloomberg reported that both Kyle Sampson and Monica Goodling turned instinctively to Margolis for protection and support when the U.S. attorney’s scandal erupted.

What this means in practice can be seen in dozens of cases involving seriously unethical conduct by political appointees. Margolis has a one-size-fits-all solution for these cases: sweep them under the carpet.

In “Prosecutorial Ethics Lite,” I reviewed what Margolis did when confronted with a case in which a U.S. attorney used all the powers she could assemble to destroy an insurance executive who had commenced a law suit against her husband. Ethics rules clearly required her recusal. But in the face of a compelling mass of evidence, Margolis concluded that everything was just fine. He allowed the U.S. attorney to pass nominal control of the matter to the head of her criminal division. The abuse of office pressed forward, with Margolis’s blessing.

Justice Department insiders also note that Margolis single-handedly blocked efforts to secure a meaningful review of the prosecution of former Alabama Governor Don E. Siegelman, after more than 90 attorneys general from around the country advised the Justice Department of a series of gross irregularities. Instead, with Margolis’s apparent knowledge, the Department fired a member of the prosecution team who had blown the whistle on some of the misconduct. (“What the Justice Department is Hiding.”)

Jeff Kaye collects a number of other occasions on which Margolis’s machinations have made their way into the media.

In a July 6, 2008, Los Angeles Times story, Margolis is cited as leading an effort to avoid publication of the Department’s internal ethics reviews. Margolis told the Times that his opposition to publication of OPR reports was driven by concerns about “unnecessarily or gratuitously… publicly humiliating our line attorneys as individuals.” But it may well be that Margolis’s desire to keep his own role in those cases secret was a more pressing concern.

There is little mistaking Margolis’s brief in all these matters. None of his critics fault Margolis’s own conduct as a lawyer. But they express concern that he is too quick to let political appointees off the hook and note that this has severely damaged the culture of the Justice Department. Ironically, Margolis is clearly driven by a desire to protect the Department’s reputation.

Margolis’s decision to override the OPR’s lead investigator is just more of the same.

P.S. For a nice critique of Margolis’s conclusion that Yoo did not act recklessly, see Brian Tamanaha’s post here.

The End of the War Over the Torture Memos?

by Julian Ku

After five years, the U.S. Department of Justice has finally released its report of its internal investigation into the legal advice provided by its attorneys that became known as the “Torture Memos.”  The lead investigator was the Office of Professional Responsibility (OPR) which issued a report recommending referring John Yoo and Jay Bybee to their state bars for disciplinary proceedings.  But this recommendation (which was not officially made until December 2008), has been soundly and completely rejected by David Margolis, the Associate Deputy Attorney General empowered by the DOJ to decide whether to accept the OPR recommendations.   All of the relevant documents have been posted on the House Judiciary Committee website.  I’ve only scanned them, but here is the bottom line: Yoo and Bybee’s work on the torture memos is called “poor judgment” and “flawed” but there is no evidence that this advice reflected any professional misconduct.

The decision memo by Margolis (who is a career attorney, not a political appointee) is tough on John Yoo’s work, but it is even tougher (and at times contemptuous) of the work done by the OPR.  The OPR report is rejected in every single way possible.  (Indeed, I wondered at times whether the OPR attorneys are going to be investigated for professional misconduct themselves).

Does this mean the end of the war over the “torture memos”?  Uh, hardly. Congress is going to go over these memos again.  But it is the beginning of the end. The chance of a criminal prosecution of the Bush attorneys in the U.S. is now, effectively, zero. (I argued this point in this essay here and I am glad that I will be proven right)  Civil suits are going to face some serious problems, if the analysis in these documents is accepted.  Even international prosecutions are going to have to take seriously the fairminded analysis in the Margolis memo, which drew tough but persuasive distinctions between good faith legal analysis and professional misconduct.  It would be odd for something that wouldn’t even qualify as an ethics violation in the U.S. to be the basis for criminal liability under a theory of universal jurisdiction.  But then again, I’m not Judge Garzon.

Whale Wars: Australia Gives Japan One More Chance to Settle

by Julian Ku

I had almost forgotten about this ongoing dispute between Australia and Japan over whaling, which has been going on for years (and which I first noted on this blog way back in 2005).  The Australian Prime Minister warned Japan yesterday that if whaling doesn’t stop by November, Australia will take Japan to court, either the ICJ or the International Tribunal for the Law of the Sea.  Australia seems ready to go. It has its evidence lined up and appears to have James Crawford on board to argue its case before either the ITLOS or the ICJ.  I wouldn’t hold my breath on a quick decision on this, but it would be an interesting case nonetheless. As far as I know, Japan has never faced a case in the ICJ. I wonder what its reaction would be.

Harold Koh Discussion with John Bellinger at ASIL Event

by Kenneth Anderson

Julian mentioned, in his first post on Sarah Cleveland’s UVA talk below, that Harold Koh, legal adviser to State, held an informal public discussion with his predecessor from the Bush administration, John Bellinger.  This was an ASIL event, held at John’s law firm, Arnold & Porter, and moderated by my old friend and ASIL’s Treasurer, Nancy Perkins, also of Arnold & Porter.  CSPAN covered it, and the video is now available:  The Obama Administration and International Law, February 17, 2010.  (If I can find a youtube version from ASIL, I’ll see if I can embed it.)

I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event.  My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments – and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public.  While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance here at OJ that was very well received.  Harold Koh has also been doing some out of the box engagements, and this kind of unscripted, informal discussion is an outstanding example of that.

(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on.  So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully – but less informatively – phrased.  So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion.  To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.)

The conversation ranged across a wide variety of issues, including something that Julian flagged below with respect to Sarah Cleveland’s UVA speech – the pace of treaty exchanges.  John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (90!) than at any point in American history.  On the broad question of whether the Obama administration’s international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren’t, they were being changed.  But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn’t very easy. Continue Reading…

The “Obama-Clinton” Policy on Treaty Submissions

by Julian Ku

One small followup on Sarah Cleveland’s articulation of an “Obama-Clinton” approach to international law. In her UVA address, she notes that more treaties have been deposited and ratified in the past year than in any other year in U.S. history.  This is no doubt true, but it is odd that she (or the Obama-Clinton Administration) would take credit for it.  After all, these treaties were all submitted by that guy who was in the presidency before Obama (what was his name?) and his State Department.

In fact, the Obama Administration has been pretty slow to submit treaties to the Senate.  Granted, it’s only been one year and the Koh-Cleveland regime has only been in office since September.  But it is worth noting that they’ve only submitted three treaties to the Senate so far and all of them were protocols to existing and largely unimportant treaties.   Granted, every first year of an administration is slow. But there is no reason to think this administration is particularly fast.

I should also add that for all the concerns raised about the “radical transnationalist” Harold Koh, there is little evidence of this so far, or in the articulation of his approach to international law voiced by Sarah Cleveland.

Dershowitz Defends Israeli Assassinations in Dubai

by Julian Ku

Alan Dershowitz has a very short but persuasive assessment of the legal issues arising out of the alleged Israeli assassinations of a Hamas leader in Dubai.

So if the Israeli Air Force had killed Mabhouh while he was in Gaza, there would be absolutely no doubt that their action would be lawful. It does not violate international law to kill a combatant, regardless of where the combatant is found, whether he is awake or asleep and whether or not he is engaged in active combat at the moment of his demise.

But Mabhouh was not killed in Gaza. He was killed in Dubai. It is against the law of Dubai for an Israeli agent to kill a combatant against Israel while he is in Dubai. So the people who engaged in the killing presumptively violated the domestic law of Dubai, unless there is a defense to such a killing based on international principles regarding enemy combatants. It is unlikely that any defense would be available to an Israeli or someone working on behalf of Israel, since Dubai does not recognize Israel’s right to kill enemy combatants on its territory.

There is an additional wrinkle here that Dershowitz doesn’t talk about, which is whether the presumptive assassins from Mossad are privileged combatants authorized to kill in an armed conflict.  This is the same problem faced by CIA officers directly involved in drone assassinations in Pakistan. Still, the bottom line seems right: There is no legal defense for the assassins under Dubai law and if caught there, they would likely be convicted.  If it is proved that the Israeli government ordered the killing, then the State of Israel is on the hook here for violating Dubai’s sovereignty.

So I wouldn’t look to see a legal defense offered by Israel here. There is no serious legal defense.  But the moral defense seems relatively powerful, as Dershowitz goes on to explore.

Those Anti-Whaling Pirates

by Julian Ku

My former law firm colleague Natalie Klein (now a law prof at Macquarie) calls out aggressive anti-whaling protesters, suggesting they could be liable for piracy.

WHEN Sea Shepherd Conservation Society member Pete Bethune climbed from his jet ski on to Japanese whaling ship the Shonan Maru 2 and presented a demand for money following weeks of hostile encounters between the whalers and Sea Shepherd, the environmental activists finally crossed the line from protesters to pirates.

Read the whole thing here.  Not quite pirates, but surprisingly close.

Sarah Cleveland Defends the “Obama-Clinton” Approach to International Law

by Julian Ku

I had the good fortune of participating in a symposium last week sponsored by the University of Virginia Law School’s John Bassett Moore Society.  Entitled “The Obama Impact”, the symposium explored the impact of the new administration on international law and policy.  I have already shared my views on this subject here and I took the opportunity during my visit to rebut the United Nations’ claim to “indispensability.”  But the main action at the symposium was the keynote address by Sarah Cleveland, Counselor on International Law in the U.S. State Department’s Office of the Legal Adviser.  Cleveland, who is also a Columbia Law School professor, offered one of the most forthright and clear explanations of the new administration’s approach to international law.  A summary can be found here, along with a recording of her address.  But below is a key excerpt:

“I would say that the administration has articulated an Obama-Clinton doctrine, a vision that reflects commitments to four elements,” Cleveland said. “The first is multilateral engagement. This was a consistent theme of the president’s campaign and has been a consistent theme of his first year in office.”

Other elements of the doctrine are universality, or the idea that all men are created equal, and the legitimating force of law, which suggests that law gives strength and legitimacy to government action.

“Finally, these goals are to be achieved through a principled pragmatism and the exercise of smart power: the intelligent use of all means to our disposal, including diplomacy, promotion of democracy, development and human rights,” Cleveland said.

Cleveland’s framework is interesting, but I’ll note simply that few of the things she describes are substantially different from things that Condi Rice and John Bellinger would have said.  The devil is in the details, and so far there is not as much a difference as some of the campaign rhetoric suggested.  (Not that this is a bad thing).
UPDATE: Her boss, Harold Koh, shared a few thoughts with John Bellinger today as well.

D’Amato Sues Hungarian Railways for Holocaust-Era Complicity

by Julian Ku

I don’t know about this lawsuit, presumably filed under the Alien Tort Statute, but it should be interesting.*

A Northwestern University law professor has sued the Hungarian State Railways on behalf of Jews deported to camps during World War II.

Anthony D’Amato, who teaches international law, is seeking compensation for property stolen from Hungarian Jews, the Chicago Tribune reports. In a brief filed last week in federal court in Chicago, D’Amato said the state railways were complicit in the Holocaust and that Jews leaving Hungary for Auschwitz and other concentration camps had to leave their suitcases behind when they were loaded into boxcars.

My prediction: this suit goes nowhere. But maybe I should take a look at the complaint first. Does anyone have a copy by any chance?

*UPDATE: Thanks to reader C. Jenks for a copy of the complaint here.  It is pretty well done (it even includes photos). But it faces some serious obstacles.  One interesting problem: the lawsuit is against a state-owned corporation, and the idea is that this state-corporation’s immunity has been waived by the Foreign Sovereign Immunities Act. This is a tricky argument, and I expect this to be the main focus of the dissent.

Here Comes the Convention on Cluster Munitions

by Julian Ku

The Convention on Cluster Munitions, which bans “cluster bombs,” received its 30th ratification yesterday when Burkina Faso and Moldava deposited their ratifications.  The treaty, which was signed back in 2008, set 30 as the number of nations needed for it to go into effect.  It will now become active on August 1, 2010.  Apparently, this treaty was spearheaded by New Zealand and has been signed by 104 nations.

One problem with this treaty, like the Land Mine Treaty, is the non-participation of states, few in number, but by far the most important users of a particular weapon. The U.S. is not a party, and will likely not become a party, to this treaty. Nor will China, Russia, India, Israel, Pakistan, and Brazil.  In other words, it seems highly unlikely that New Zealand, Norway, or Spain would need cluster munitions (not to mention Burkina Faso), so their signatures are not exactly crucial or reflective of an international consensus.  But the next time a cluster bomb is used, expect the claims that it violates international law to rely on this treaty.

Maybe Joining the UN Human Rights Council is Paying Off

by Julian Ku

Conservatives and human rights groups have rightly pummeled the new UN Human Rights Council as a deeply problematic institution, characterized by a strange obsession with Israel.  But the Obama Administration joined anyway, despite criticism, and they won a small payoff this week in Geneva.  The HRC finally got tough (well, at least they focused on) someone other than Israel.  The target on Monday? Iran.  The NYT reports:

Michael H. Posner, an assistant secretary of state, told the council that since disputed presidential elections in June, Iran had suppressed the protests of millions of Iranians, “often resorting to violence,” resulting in detentions, injuries and deaths. Mr. Posner, the top United States official for human rights, also condemned growing restrictions on freedom of expression and called for immediate action by Iran to end torture.

The benefit to the HRC going after Iran instead of the US alone going after Iran is obvious.   The downside of course is that the UN HRC won’t do much (it can’t), and it may well elect Iran to its membership next year.  But for the time being, this is a useful forum to convince third-parties (read: Canadian and European allies) that Iran deserves isolation and censure.  Unfortunately, I doubt it will make a difference to Russia and China. But it is a (small) achievement of the new Obama policy and deserves to be recognized as such.

Appeals Chamber Treats Dr. K Like Josef K

by Kevin Jon Heller

What a shock: the Appeals Chamber has upheld Richard Harvey’s appointment as stand-by counsel.  I would engage in a detailed account of its reasoning, but the short decision — 16 pages, only five of which are analysis — provides none.  Here, for example, is the AC’s response to the heart of Dr. Karadzic’s challenge, the irrationality of the procedures the Registrar used to select Harvey (para. 34):

Karadzic fails to establish that the Trial Chamber inappropriately applied the Kvokca test.  In selecting Harvey as standby counsel, the Registrar considered a number of factors, including (i) conflicts of interest; (ii) availability for appointment as standby counsel; (iii) counsel having no reservations about being imposed; (iv) previous experience before the Tribunal; and (v) geographic proximity.  None of the specific examples of allegedly unfair  or arbitrary reasoning Karadzic  raises demonstrate that the Trial Chamber abused its discretion in finding that the Registrar appropriately exercised his discretion.  More specifically, the Appeals Chamber is satisfied that the Trial Chamber acted within its discretion in concluding that the Registrar’s application of pre-screening neither contravened any legal requirement nor was unfair or nonsensical.

That’s it.  That’s the “analysis.”  No attempt to respond to any of Dr. Karadzic’s arguments, just brute force claims that everything is fine.  We’re the Appeals Chamber, we can do what we want.  Deal with it.

That’s appalling, but I guess it’s also unsurprising.  After all, it’s not like the Appeals Chamber could have defended the procedures.  Indeed, I pity the poor judge who tried to actually explain how the Registrar’s conflict of interest requirement was neither “unfair or nonsensical,” even though the Registrar used it to exclude numerous barristers who did not have actual conflicts (because the requirement did not require actual adversity) and include one, Colleen Rohan, who did.  Were I the judge, I would have said “screw it, let’s just claim it all makes sense,” too.

The Appeals Chamber should be embarrassed by its latest “decision.”  And anyone who cares about the legacy of the ICTY, no matter how they feel about Dr. Karadzic, should be ashamed that this is what now passes for “analysis” in the Tribunal’s final and most important case.  The stain that Judge Hunt decried years ago spreads ever wider with each passing day.

Bush = Obama on International Law

by Julian Ku

John Bellinger makes a solid observation in the NYT on the Obama Administration’s general approach to international law.  The bottom line: Obama is basically the same as Bush (at least during the second term) on international law.

Last month marked the one-year anniversary of President Obama’s first signature foreign policy initiative: the issuance of three executive orders ordering the closure of the detention facility at Guantánamo Bay, the suspension of the C.I.A. interrogation program, and the review of all U.S. government detention policies and legal positions. The orders met with wide acclaim in Europe and were heralded as the return of the U.S. commitment to international law.

But one year later, the Obama administration is having difficulty implementing all three directives and has continued many of the Bush administration’s other counter-terrorism policies, including many that are highly controversial with America’s allies. In other areas, such as engagement with the International Criminal Court and compliance with rulings of the International Court of Justice, the administration has so far been less supportive of international legal institutions than its predecessor.

These realities show that the Bush administration demonstrated a greater commitment to international law in its second term than is generally acknowledged abroad, particularly in Europe, and that there are bedrock domestic political constraints in the U.S. that may prevent the Obama administration from living up to expectations.

This is a point worth making. The shape of U.S. foreign policy, and its policy toward international law, is not entirely the creature of the occupant of the Oval Office. Obama is proving this point as each year of his administration passes.

A Lucid Statement of the Greek-Eurozone Conundrum

by Kenneth Anderson

Not everyone in international law is quite so fascinated as I with CDS spreads on Greek sovereign debt.  However, the issues raised by the Greek debt difficulties and the urgent discussions in the Eurozone over a possible bailout, attendant moral hazard, and the like are far more than merely fiscal or monetary questions.  Rather, this crisis is one of those instances in which the deep economic and financial problems directly reflect the questions of founding political design.  Political economy in its purest sense.  Regardless of what one thinks the right policy for the EU, Germany, Greece, and others, is at this moment, economist Otmar Issing’s Financial Times comment today (Tuesday, February 16, 2010) lays out a lucid statement of the foundational political issue of monetary union without political (or fiscal) union:

It seems that quite a number of observers have forgotten what Emu is, and what it is not. The monetary union is based on two pillars. One is the stability of the euro, guaranteed by an independent central bank with a clear mandate to maintain price stability. The other is fiscal solidity, which has to be delivered by individual member states. Member countries are still sovereign. Emu does not represent a state; it is an institutional arrangement unique in history.

In the 1990s, many economists – I was among them – warned that starting monetary union without having established a political union was putting the cart before the horse. Now the question is whether monetary union can survive without such a political union. The current crisis must be handled in such a way as to produce a positive answer. The viability of the whole framework – nothing less – is at stake.

By joining Emu, a country accepts its rules. Greece, moreover, also knew that adopting a stable currency that was not controlled by its own central bank implied a total break with the past. Devaluation of the national currency and an inflationary monetary policy were no longer options. A single monetary policy is implemented by the European Central Bank and it is the responsibility of each country to adjust its economic policies so that this one size fits all.

The fundamental political problem is a collective action problem – the “responsibility of each country” to adjust its fiscal policies to comport with a single monetary policy.  The collective benefits, including those enjoyed by Greece, of a single monetary union with a currency widely trusted are enormous, starting with a lowering of borrowing costs – lower costs of which, however, could have been used either to lower public debts to put/keep Greece in line with the levels of fiscal policy of the monetary union, or leverage the savings to borrow ever more.  Greece promised the former and went for the latter:

The benefits of joining a stable economic area are greatest for countries that were unable to deliver such conditions before. Thanks to the euro, Greece has enjoyed long-term interest rates at a record low. But instead of delivering on its commitment at the time of entry to reduce public debt levels, the country has wasted potential savings in a spending frenzy. The crisis with which it is now confronted is not the result of an “external shock” such as an earthquake, but the result of bad policies pursued over many years.

I myself believe that the sanitized language of economists on display here hid, below a veneer of sense, a much more palpable ‘sensibility’ of “spend” that went with joining the monetary union.  It isn’t just that Greece and its public saw an opportunity to free-ride on the euro.  I’d say (from experience in Spain and other poorer countries of the “old” EU) that joining monetary union was seen as joining the lifestyle of the richest countries in the EU.  It was a powerful behavioral signal toward living like northern Europe, not toward seeing virtues in lowering the borrowing costs of the public fisc.  My strong impression of what many Spaniards in traditionally poorer parts of Spain thought the EU meant, when I lived there on sabbatical in the mid 2000s was that to “be European” mean to have a “European” lifestyle, based on a Euro income.  And, moreover, that the reason why the EU showered particular regions of Spain with money for so many years was not simply in order to promote economic development or political stability – both of which it did – or to purchase regional loyalty to the EU even over national solidarity – it did that, too – but, from the inhabitants’ view, to make them “European,” which meant, ultimately, to consume like Europeans were supposed to, and did, even if it was financed on debt-fuel.  This is another of those instances in which the sensibility – even though hard to document and measure – is hugely important and perhaps as important as the economic sense.

The EU is, from the standpoint of this sensibility, about equality, and it is unjust that there should be rich regions and poor regions.  Again, from the standpoint of this essentially EU citizenship=consumer sensibility, if you didn’t intend that the EU should be gradually moving not so much closer to political union as egalite, then why on earth did you create a euro, the point of which, from a consumer standpoint, is to put everyone on an equalized playing field?  I realize this sounds strange from the standpoint of economic sense, but that’s not what I’m talking about.  The great sociologist Zygmunt Bauman once remarked, in an essay in Telos in the late 1980s, that the fundamental condition of poverty in our age is not that it is a class as such.  It is that to be poor is to be a “flawed consumer.”

The euro, understood from this sensibility, took poor people who were poor because their countries were poor – a status that described whole national societies – and made them poor people within a unified social environment in which their poverty was no longer the condition of the country, but rather them as individuals who, within Europe, were now “flawed consumers.”  Small wonder, as a matter of sensibility if not sense, that they concluded that the point of the euro was to make them … not poor.  Small wonder that their governments responded in kind.  Which is why the conclusion of this FT article, so economically sensible, lucid and compelling – it gets my complete agreement as a matter of policy – misses the fundamental point from the standpoint of euro-sensibility.

This moment is a turning point for Emu, and for the future of Europe. Most observers point to the high risks – which cannot be denied. However, any crisis also presents an opportunity. This is a big chance – probably the last for Greece, and others – to adapt fully to a regime of stable money and solid public finances.

For Emu, the crisis represents a final test of whether such an institutional arrangement – a monetary union without a political union – is viable for an extended period of time. Lax monitoring and compromises when it comes to observing implementation of rules have to stop. Emu is a club of states with firm rules accepted by entrants. These rules must not be changed ex-post. Governments should not forget what they promised their citizens when they gave up their national currencies.

From the point of view of the sensibility of citizens who define themselves as citizens of the EU – at the Union’s own urging – as consumers, identifying “with” the European Union on the basis of the solidarity of consumption, Greece has not forgotten in the least what it promised its citizens in joining the euro.  It promised to deliver them from the condition of merely “flawed consumers” among the wealthy of northern Europe.

The Politics of Gitmo

by Deborah Pearlstein

Cross-posted at Balkinization

This is a post about politics, not law. How could it be otherwise in engaging the public debate these days over the chronic cluster of post-9/11 terrorist detention, interrogation and trial issues? Demagoguery by Mitch McConnell and his Republican cohort over the Administration’s exactly right and entirely unremarkable decision to bring criminal charges against would-be underwear bomber Umar Farouk Abdulmutallab is, as others have pointed out, well and fully divorced from the facts. (According to the Attorney General’s detailed statement, Abdulmutallab provided detailed and useful intelligence. He will now spend the rest of his life quietly in jail following a trial so fair that it will succeed in increasing the likelihood that our allies will cooperate with us in identifying the next Umar Farouk Abdulmutallab.) The position staked out by Lindsay Graham et al. favoring military commissions over federal criminal trials for the Gitmo detainees we plan to charge with wrongdoing as the “best way to render justice, win this war and protect our nation from a vicious enemy,” is not especially more coherent. Among other things, after 8 years, the commissions have convicted 3 defendants, 2 of whom are already back on the streets. In the same time, according to NYU, the criminal justice system has pursued 800 terrorism prosecutions with a conviction rate of 90%. The new and improved commission process is certain to generate just as much litigation as the last one – and commission defendants will enjoy a host of potentially powerful defenses to their prosecution they won’t have in criminal trials. And odds are not insubstantial that if we decide to “render justice” that way, we’ll still be rendering it another 3 years from now (the next time folks take a good look at the Commander in Chief).

On the other side, proponents of criminal trials have done a nice job of highlighting the many factual – and common sensical – deficiencies in the Republican case. See, e.g., here. They’re getting great at rapid response. But they’ve not mounted much (or any) of a sustained counteroffensive in the political messaging game. In part, one might argue, that’s not the job of advocacy organizations whose endlessly important missions are to promote human rights, protect the rule of law, and defend the persecuted. They serve a critical function, but resources are scarce, and countering fact-free politicking just doesn’t make the cut. (Although as they all know, it’s tough to gain any factual foothold with even the fact-interested members of Congress as long as the political winds are whipping around as fast as they are.) And then there’s the problem of appetite; hard for them to launch a campaign to defend any aspect of what the Administration is attempting to do (viz. some criminal trials) when there are so many things they think the Administration is otherwise doing wrong (viz. some continued detention). In any case, one could imagine the pro-law-enforcement case might be more effectively, more persuasively waged by, say, the enforcement community, the Law & Order folks who should (and it seems are) chomping at the bit to show America and the rest of the world how justice is done. But they have appropriate professional constraints of their own to worry about. Not to mention other jobs to do.

Which brings us to the Democratic administration in office – the group that holds the popular majority, both houses of Congress, the White House, and the dazzling messaging apparatus that goes with it. But it’s hard to have a coherent much less dominating message when talking out of all sides of the mouth. It is not news that the Obama Administration seems to have been struggling for some time with internal divisions on these issues. And to be fair, the number of internal constituencies the President has to deal with is daunting: The Pentagon (which has plenty of smart and rights-interested people in it, along with a deeply vested institutional interest in seeing the next round of military commissions they’ve worked on for 8 years go forward with more earned respect than the last round); the intelligence community (which faces an unimaginably difficult task, which is ever burdened with building a new (intel collection) car while they’re trying to drive it, and whose collective ego has been toughened by decades of being regularly beaten around the head); and the Justice Department/FBI (which undoubtedly has turf interests of its own, but is generally trying, best as I can tell, to prosecute terrorists and get them off the streets).

Then there’s the White House itself, which has seemed to resent having to deal with the current Bush-induced mess so much, they don’t want to talk about it until absolutely forced – forced by an uprising in Congress against bringing any Gitmo detainee to the United States ever, by an about-face by the New York City community it ostensibly consulted, by a sustained political assault by the other side far more coherent and unified than any vision the Administration has put forward. The resentment is both entirely appropriate, and completely beside the point. As it turns out, the I-don’t-want-to-talk-about-it approach has been effective only in ensuring that the Administration has been compelled to spend the year so far talking about it constantly. Trying to shunt these issues off to the side, or address them in a single speech, has not worked. And it won’t work going forward. These issues – terrorism, the threat of terrorism, domestic cases, foreign detentions, actual trials, etc. – are going to be in the news every day from now til the next election, and the opposition has every incentive to ensure that they stay there. An offensive strategy seems in order.

The Administration needs – has long needed – two things: (1) A settled policy on these issues, and (2) An affirmative, consistent, aggressive message on counterterrorism security that is understood and embraced by the whole Administration team (DOJ, DOD, CIA, WHO). On the first, and despite the unbelievable complexity of all this, the Administration has been lining up the decisions and knocking them down. I was very much in favor of the new Administration thinking things through carefully with the task force process, and I am far less critical than many about its plan to resolve Gitmo by some combination of trials, releases, and (in a small number of cases, we’re not yet able to evaluate which) continued detention. I haven’t, and I’m sure I won’t agree with every move, but criminal trials are obviously the right course whenever it’s possible. Have them in some distant hamlet in a different zip code if Manhattan has had enough, but as the President and Eric Holder have said all along, they’re the best bet whenever possible (as it surely is with KSM). Rethinking that now (as, it is reported, is the President, seemingly in response to the pure politics of Lindsay Graham) backtracks on progress made in the painstaking process of policy development.
It also only serves to underscore the Administration’s failure to move forward (or, it seems, in any direction) on the second item – an affirmative message on security, repeated and elaborated daily, geared toward the constituencies that need persuading to make the policy possible (say, the districts of members of the President’s own party), and deployed on a strategically useful playing field (as opposed to one mandated by, say, Dick Cheney’s appearance on TV).

Candidate Obama was characteristically eloquent on the topic of security. He was also relentless: “You don’t defeat — you don’t defeat a terrorist network that operates in 80 countries by occupying Iraq…. If John McCain wants to follow George Bush with more tough talk and bad strategy, that is his choice, but that is not the change that America needs. We are the party of Roosevelt. We are the party of Kennedy. So don’t tell me that Democrats won’t defend this country. Don’t tell me that Democrats won’t keep us safe. The Bush-McCain foreign policy has squandered the legacy that generations of Americans, Democrats and Republicans, have built, and we are here to restore that legacy.”

As messages on Gitmo go, that seems like a fine place to start.

How’s that UN Hariri Tribunal Doing? Not Well

by Julian Ku

The UN special tribunal to investigate the murder of Lebanese leader Rafik Hariri seemed like a good idea at the time it was established, back in 2005.  Some folks claimed it vindicated the role of the UN in resolving this kinds of delicate political disputes.  But the opposite has turned out to be the case.

Half a decade later, however, the Hariri case has made little progress toward justice. Lately, Syria has reasserted its power in Beirut after years of trying to destabilize a government dominated by its political foes. In December, Saad Hariri, Lebanon’s prime minister and Rafik’s son, met with Syria’s president, Bashar al-Assad, acceding to the reconciliation between his own political sponsor, Saudi Arabia, and Damascus — making Lebanon less likely to point the finger at Syria for the killing.

But the more significant problem actually lies within the United Nations investigation itself. While it has been upgraded to a special tribunal, sitting near The Hague, it has suffered from questionable leadership, lost key members and last year had to release suspects for lack of formal indictments.

I don’t know if some other international or national mechanism could have done better, but they could scarcely have done worse.

Come Work in the World’s Third Most Livable City!

by Kevin Jon Heller

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The Economist Intelligence Unit has just released its annual list of the world’s most livable cities — and my adopted home of Melbourne ranks third, behind only Vancouver and Vienna.  It thus seems like an appropriate time to mention that Melbourne Law School is looking to hire new faculty at all levels, from Lecturer to Professor:

This year we are particularly interested in, and encourage, applications from scholars researching and teaching in the fields of administrative law; criminal law and evidence; media and technology law; and private law, in particular remedies and torts.

We continue to seek new colleagues at all ranks (levels B to E) and across all sub-disciplines who share our commitment to a highly collegial, research-intensive professional life. We specifically encourage applications from current or aspiring academics with a clear understanding of the value of cross-disciplinary and comparative analysis, who are able to integrate teaching with research and knowledge transfer activities, and who are prepared to contribute to the vibrant communal life and culture at the Law School and within the University of Melbourne as a whole.

Salaries are quite competitive with the US market, particularly with the Australian dollar hovering around $.92. The Lecturer range is AUD $73,863 to AUD $87,710; the Senior Lecturer range is AUD $90,480 to AUD $104,329; the Associate Professor range is AUD $108,946 to AUD $120,025; and the Professor range is AUD $140,335 and above.  Salaries also include a fantastic 17% superannuation — 17% of your salary paid directly to your retirement fund each year, on top of the salary itself.

Potential applicants should be aware that it is very unlikely we will be hiring any pure international-law scholars — we already have more than a dozen on the faculty.  But I am confident that we would be delighted to hire someone who is genuinely committed to teaching one or more of the subjects identified above whose work is also international, transnational, or comparative in focus.  I was hired, for example, as a comparative criminal-law person; I teach two or three streams of Australian criminal law each year in addition to ICL.  (And love doing so.)

I can’t say enough good things about Melbourne as a city or Melbourne Law School.  It would be an exciting time to join the faculty, as we are about two years away from becoming a graduate-only law school — Australia’s first.

If anyone is seriously interested in applying, feel free to drop me a line with any questions: kheller [at] unimelb [dot] edu [dot] au. More details on the vacancies are available here.

The Elephant in the ICC’s Case Against Bashir: Head of State Immunity

by Julian Ku

Dapo Akande, who seems to know more about head of state immunity than anyone else, has an interesting post on the recent ICC Appeals Chamber non-decision decision in the case against Sudan’s President Bashir.  He points out that the Appeals Chamber failed to even mention the question of head of state immunity, which is important in this case because as a non-party to the ICC, Sudan has a pretty good argument that Bashir still has head of state immunity. It is at least a non-trivial argument which would undermine every other issue in the case against Bashir, if resolved in Bashir’s favor.  How could it not be addressed?  And when will it ever be addressed? I suppose if Sudan or Bashir ever show up to defend themselves.  It would be embarrassing if, after all of this, the ICC managed to arrest Bashir only to have its Appeals Chamber decide that he had immunity after all.

Criminal Libel for Publishing a Critical Book Review? Seriously?

by Kevin Jon Heller

That’s the allegation made by Dr. Karin N. Calvo-Goller, a senior lecturer at the Academic Center of Law & Business in Israel, against Joseph H.H. Weiler, a professor at NYU who is the Editor-in-Chief of the marvelous European Journal of International Law.  In 2007, (GLB), a book-review website associated with EJIL that Professor Weiler also edits, published a negative review of Dr. Calvo-Goller’s book The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precedents written by Professor Thomas Weigend, who is the Director of the Cologne Institute of Foreign and International Criminal Law and currently the Dean of the University of Cologne’s Faculty of Law.  Dr. Calvo-Goller responded by writing a letter to Professor Weiler in which she claimed that Professor Weigend’s review was libelous and demanded that Weiler remove the review from the GLB website.  Professor Weiler patiently addressed each of Dr. Calvo-Goller’s criticisms of the review and — not surprisingly — refused to remove it.  He did, however, offer to publish Dr. Calvo-Goller’s response alongside Professor Weigend’s review.

More than a year later, Dr. Calvo-Goller filed a complaint in a French court accusing Professor Weiler of criminal libel.  As a result, Professor Weiler is scheduled to stand trial on June 25.  The fact that he will stand trial does not mean that the court has found Dr. Calvo-Goller’s complaint meritorious; according to Professor Weiler, the Examining Judge explained to him that “unlike other areas of the criminal law she had no discretion to examine the merits of the complaint…  [I]n libel cases, all investigations of the merits of the case are exclusively reserved for the Criminal Court itself and, therefore, as a direct consequence of the complaint being filed, it was necessary that I be referred to the Court for trial.”

With due respect to French law, it is shocking that a defendant can be forced to suffer the time, expense, and emotional strain of a criminal trial based solely on an unexamined libel complaint.  But it is even more shocking — and completely indefensible — that Dr. Calvo-Goller would submit the complaint in the first place…

A Response to C. Ford Runge by Mairon G. Bastos Lima

by Melbourne Journal of International Law

I thank Professor C. Ford Runge for his comment on my article and agree with his analysis that places biofuels within a larger picture. From the Brazilian perspective, such heavy subsidies used by the United States and the European Union constitute the very “Gordian knot” of the negotiations in the Doha Development Round of the World Trade Organization. Naturally, that does not apply only to Brazil, but to all developing countries whose agricultural exports are heavily taxed. Ethanol from Brazil is just the newest product to face that barrier — currently circumvented, in limited amounts, through the Caribbean Basin Initiative, an agreement whereby Caribbean countries, who receive Brazilian ethanol, can export it into the U.S. duty free.

There is much debate and controversy regarding who would benefit from further world trade liberalization. However, even at current levels (of market openness), biofuels are expanding fast enough to consume many resources, take up substantive amounts of land, and raise social and environmental issues that we had better not abandon to market forces only. As Professor Runge correctly points out, a multilateral governance framework engaged on such issues seems necessary. The environmental and socio-economic effects of expanded biofuel production (e.g. on forests, climate, global food security) cannot be tackled by individual countries alone. Both the market forces and the political impetus for producing more biofuels are also very much internationalized (the EU-Africa energy partnership, whereby African countries are being incentivized by Europe to produce biofuels, is an illustrative case) (see Charles et al, 2009). If governments the world over are investing taxpayers resources and policy efforts into the expansion of biofuels, they should well engage in cooperative efforts to address biofuels’ sustainability issues, too.

But Europe and North America must realize that large-scale biofuel production and its global trade (and their impacts) may well expand without them. The European Union is currently relying on its own unilateral sustainability criteria for biofuels. But South-South trade is increasing and, for instance, Asia is becoming an ever larger importer of South American agricultural goods — biofuels included. The multi-polar world of today requires that efforts to govern for sustainability also be multilateral. The alternatives are many, from the creation of a World Environment Organization capable of securing that, as mentioned, to the development of a biofuel governance framework within the scope of the UN-Energy interagency mechanism or of the Food and Agriculture Organization (FAO). Each alternative would naturally have advantages and difficulties to overcome, and these would need to be carefully thought out (see Bastos Lima and Gupta, 2009). In the end, how we will deal with these increasing issues of biofuel expansion, and whether that will prompt us to better collaboration on other energy and agricultural issues, remains to be seen.

Bastos Lima, M.G. and Gupta, J. (2009). Biofuel and Global Change: The Need for a Multilateral Governance Framework. Paper presented at the Amsterdam Conference on the International Human Dimensions of Global Environmental Change. ‘Earth System Governance: People, Places and the Planet’.

Charles, M.B., Ryan, R., Oloruntoba, R., Heidt, T. von der, Ryan, N. (2009). ‘The EU-Africa Energy Partnership: Towards a mutually beneficial transport energy alliance?’ Energy Policy vol. 37: 5546-56.

A Response to Mairon G. Bastos Lima by C. Ford Runge

by Melbourne Journal of International Law

[C. Ford Runge is the Distinguished McKnight University Professor of Applied Economics and Law at the University of Minnesota.]

Mairon G. Bastos Lima is to be congratulated for his coherent and ambitious proposal to rationalize the governance of biofuels through multilateral applications of the Rio and Good Governance principles. As he correctly observes, biofuels policies are highly nationalistic and lack even a rudimentary multilateral structure. Although he is right in his criticism, and constructive in his proposed alternatives, the analysis should be placed in a larger perspective.

Biofuels are but one of many areas in which excessive subsidies have created now falsely-named “infant industries” that demand protection from competition — both domestic and foreign. By any estimate, biofuels subsidies have grown in OECD countries to hundreds of billion dollars. Apart from the huge diversion of productive resources, and increasing evidence of environmental damages, national governments continue to encourage a patchwork of methods to boost biofuels production, including tax allowances, mandates and tariffs. These may not only be inconsistent within a nation’s borders, but also operate to the detriment of other nations across borders (de Gorter and Just, 2009).

Unfortunately, biofuels policies, especially in the United States and European Union, have been largely spawned from pre-existing agricultural and agribusiness interests. The basic mode in the agricultural sector is to devise methods to transfer income from taxpayers and consumers to producers and processors of agricultural products. In the case of biofuels, these transfers are often misunderstood or unknown to the public at large. In the United States, for example, the “blenders tax credit” to ethanol essentially subsidizes the price of corn. Two other policies: the federal biofuels mandates (now at about 12.9 billion gallons, scheduled to rise to 36 billion gallons by 2022) and a 54 cent-per-gallon tariff on imported ethanol have myriad effects. The mandates created a seemingly safe market for investors in ethanol and biodiesel plants, but have encouraged overinvestment at levels that have bankrupted many. Ironically, the precarious state of the industry has now become a rationale to continue the mandates, which forces consumers to purchase blends of biofuels and petroleum that are more costly and less efficient. The 54 cent-per-gallon tariff protects domestic producers of maize-based ethanol from foreign (mainly Brazilian) producers of much lower cost sugar-based ethanol. If sugar-based ethanol could enter U.S. markets duty free, it would lower costs to consumers, but would threaten the stranded investments in the maize-based facilities. From the point of view of trade policy, the U.S. has taken a product in which it has a clear comparative advantage (maize as feed for poultry, pork and beef) and converted it to a product (ethanol) in which it has an obvious comparative disadvantage of roughly 54 cents-per-gallon vis-à-vis Brazil.

Placed in a larger perspective, biofuels policies reflect many of the distortions and inefficiencies endemic to agricultural policy writ large. And just as agriculture has resisted efforts at multilateral negotiations and rationalization, so biofuels interests and national governments are likely to resist calls for new governance frameworks built on the Rio and good governance principles. One conclusion that I have reached (Runge, 2009) is that attempting to negotiate separate agreements or protocols is problematic without an overarching framework, especially relating to issues of agriculture, environment and trade. This could take the form of a World Environment Organization (WEO) to operate alongside of the World Trade Organization (WTO). Applying the Rio and good governance principles to biofuels would be more likely in the context of such an overarching framework.


de Gorter, H. and D.R. Just. 2009. “The Welfare Effects of a Biofuel Tax Credit and the Interaction
Effects with Price Contingent Farm Subsidies.” American Journal of Agricultural Economics 91(2)(May): 477-488.

Runge, C.F. 2009. “The Climate Commons and a Global Environmental Organization.” In Climate Change, Trade, and Competitiveness: Is a Collision Inevitable? L. Brainard and I. Sorkin (eds.). Washington, D.C., Brookings Institution.

‘Biofuel Governance and International Legal Principles’ by Mairon G. Bastos Lima

by Melbourne Journal of International Law

[Mairon G. Bastos Lima is a PhD researcher at the Institute for Environmental Studies at the Vrije Universiteit Amsterdam.]

I thank the moderators of Opinio Juris for giving me this opportunity to reflect upon my article, entitled ‘Biofuel Governance and Interational Legal Principles: Is It Equitable and Sustainable?‘.

Global climate change, energy insecurity, and the underdevelopment of rural areas have been crucial issues in today’s world. Biofuels appear as a potential and innovative solution for all three problems, and policy-makers have been quick at promoting their large-scale production. Nevertheless, we see now that, if that production is left unfettered, many other issues may arise as a consequence, such as expansion of chemical-intensive monocultures and deforestation, displacement of rural communities, competition for land and water, and impacts on food security locally and globally. Even climate change itself may be enhanced instead of mitigated if the wrong production strategies are pursued. That clearly reveals the need for effective biofuel governance, oriented towards equitable and sustainable development.

A broad basis for that is provided by the Rio Declaration on Environment and Development, signed at the 1992 Earth Summit, as well as by other emerging principles of law, such as the good governance principles. In my article, I analyse those two sets of principles and match their requirements with current biofuel production and governance efforts. I argue that these current activities and efforts still fall short of most needs: the existing governance initiatives remain scattered and make up for a weak framework, failing to ensure the rule of law and the principles of legitimacy, transparency, inclusiveness, equity, accountability, and responsiveness to people’s most urgent needs. As such, the interests of those less powerful actors in society, who also happen to be the most affected (e.g. rural communities, indigenous peoples, the food-insecure) are yet to be duly heeded.

That has also created further North-South inequity. While the North has given most market, policy and political incentives and most of the steering in the international biofuel agenda, Southern countries reveal much more vulnerable to the impacts of large-scale biofuel expansion — as the geography of deforestation, food insecurity, and human rights violations shows. That coupled with lack of participation of the affected populations and inclusion of their views on the issue creates yet another worrisome North-South imbalance.

My article concludes that, without a governance framework that includes the most affected stakeholders and takes on board the multiple existing views on biofuels, there will be no countervailing powers to represent the weaker interests in society, such as those of the rural poor.

The full article can be accessed here.

Ensuring Repair through Reparations: A Response to Hari M. Osofsky by Maxine Burkett

by Melbourne Journal of International Law

Professor Osofsky’s response to my article is convincing and her exploration of the gaps in my earlier discussion of climate reparations is welcome — in fact, it is encouraged. The hope in writing an article on climate reparations was to investigate seriously alternate avenues for remedy for the climate vulnerable and encourage creativity across scales, between novel claimants, and for individuals or billions, in careful response to their current and forecasted environment. It is the first brush stroke on a quite large, and perhaps expanding, canvas. What should not be lost, however, is the unique reason why a reparations approach is imperative.

The greatest value of a reparations effort is to center the moral issues at base and foster the key elements of a just state of affair. Trust and recognition of harm are key steps to reaching that just state of affairs. The global negotiations under the UNFCCC and other parallel processes have been marked by distrust between nations as well key stakeholders. Further, while Professor Osofsky is correct in citing the very real and positive outcomes of climate-related litigation, trust-building is not a core element of the litigation process — in fact, trust is often its first casualty. Regarding recognition, the climate vulnerable have been relatively invisible, with a notable exception being their strong presence within the COP15 negotiation halls and without. Their relative absence in the major modes of climate problem-solving to date, however, makes the threats to their very existence even more haunting now. Reparations for the climate vulnerable would aim to recognise the humanity of each individual subject to the harms of excess emissions, foster civic trust — between large emitters of any stripe and the most vulnerable — and manifest social solidarity. As I have structured it, those are its goal and the test of its success.

Building trust between the greatest emitters and the most vulnerable is a challenge at its most acute in the climate change context. Utilising an alternative mechanism, like reparations, as an instrument of justice can establish or restore civic trust across borders and institutions. The reparative approach is a vital addition because, unlike its necessary counterparts, it can ensure a more complete kind of repair — one that includes a mutual commitment to shared norms and values and lays the foundation for greater collaboration, rather than acrimony and embitterment, as we press ahead in addressing the challenge.

Now, it would be a mistake to believe that this early articulation of a climate reparations framework can guarantee a total panacea. It is, I believe, an important start — one that benefits from critique, amendment, and refinement. The product of a successful reparative approach will be transformative for global communities and for that reason requires serious collaboration.

A Response to Maxine Burkett by Hari M. Osofsky

by Melbourne Journal of International Law

[Hari M. Osofsky is Associate Professor at Washington and Lee School of Law.]

In Climate Reparations, Professor Maxine Burkett makes a compelling case for viewing climate justice problems though a reparative lens. She articulates thoughtfully the barriers to achieving meaningful justice under existing frameworks and proposals, as well as the profound ethical dilemmas posed by the inequities regarding emissions, impacts, and adaptation. Her article makes a helpful contribution to efforts to conceptualize climate justice by theorizing how a reparations model might apply to climate change, and then applying it to a case study of the relationships among small island states and the United States.

My response to Professor Burkett’s article focuses on two future directions for the conversation about climate justice in light of this piece. Specifically, her article raises issues about the role of litigation and about the multiscalar nature of climate change which bear upon the possibilities and limitations of efforts at reparation. This response explores how further exploration these issues might supplement Professor Burkett’s analysis.

First, with respect to litigation, the article acknowledges current the role of litigation in making climate justice arguments, particularly in light of gaps in the international treaty regime. However, it argues that these actions are not leading to adequate action, both because most actions do not focus on vulnerable populations and because courts hesitate to take action on behalf of these populations as a result of these actions. The article then frames its argument for a reparations approach by arguing that while “divisive legal claims might be the best of many far less coordinated alternatives … none of these alternatives is optimal from the perspective of the climate vulnerable or the major polluters.”

In my view, litigation could play a helpful role in the development of the reparations scheme Professor Burkett envisions, and should be viewed as an ongoing process supplementary to reparations efforts. Litigation — even when not focused on harms to vulnerable populations — has both formal and informal impacts which can lead to improved mitigation efforts, an improvement critical to Professor Burkett’s reparations scheme. Through changing the law, putting pressure on major emitters and those who regulate them, and raising public awareness, these cases can lead to tangible emissions reductions and focus the public and policymakers on the plight of climate victims. Moreover, by providing a space for the formal expression and resolution of conflict, these cases play an important role in addressing the differences that cooperation and negotiation models cannot fully capture. For example, the U.S. Supreme Court opinion in Massachusetts v. EPA is resulting in administrative action under the Clean Air Act, and in so doing, is providing the basis for U.S. motor vehicle greenhouse gas emissions reduction even as climate legislation stalls. It also is helping to foster public acceptance of the problem, creating pressure for additional national and international action, and providing a vehicle for leader states and cities, together with interested nongovernmental organizations, to move the U.S. greenhouse gas emissions reduction strategy forward. While such a case does not directly assist climate victims, it helps to achieve the mitigation needed in Professor Burkett’s model.

Second, while Professor Burkett’s article acknowledges the multiscalar dimensions of climate change and resulting justice problems, its reparations scheme largely focuses on dynamics among nation-states. Such a core focus seems appropriate in many respects, since nation-states are the primary subjects and objects of international law and as a result, serve as the primary formal actors in international treaty negotiations. However, a reparations scheme that fully captures the climate justice problem might focus as well on major corporate emitters, which are generally transnational entities, incorporated in a particular state or province within a nation-state and interacting with a wide range of governmental actors at different levels around the world. Similarly, it might target the differences with respect to both emissions and impacts/adaptation between urban and rural areas, especially in light of the major urbanization taking place globally; cities, in their urban planning, will play a crucial role in implementation of reparations schemes, both because they account for a significant percentage of emissions and because of the growth of mega-cities in potential disaster areas. An effective reparations scheme might need to reach beyond the formal interaction among nation-states, which largely excludes these actors from the negotiating table and cannot fully capture the dynamics among them, to create a more integrative approach.

Overall, Professor Burkett’s article provides an important step forward in re-envisioning international approaches to climate justice. It provides a useful conceptual framework for developing reparations schemes, which given the dire state of international negotiations generally and with respect to climate justice in particular, are unfortunately only becoming more relevant.

UC Irvine Students Heckle Israeli Ambassador Oren

by Roger Alford

UC Irvine should be ashamed of itself. This is about as rude and discourteous as one could possibly imagine. Chancellor Drake issued the following statement of apology:

This behavior is intolerable. Freedom of speech is among the most fundamental, and among the most cherished of the bedrock values our nation is built upon. A great university depends on the free exchange of ideas. This is non-negotiable. Those who attempt to suppress the rights of others violate core principles that are the foundation of any learning community. We cannot and do not allow such behavior. Eleven individuals were arrested as a result of their actions last night and are being processed accordingly. Additionally, the Office of Student Conduct has initiated the Student Judiciary Review process to address issues under their jurisdiction.

Beyond this predictable apology, what is the appropriate response for UC Irvine? Dismissal or expulsion of these students? Discipline of all those who encouraged such behavior? And will the moderate Muslim community in the United States stand up and condemn this sort of behavior?

Experts Release Report Explaining that International Law Can Help Suppress Piracy

by Julian Ku

The Academic Council on the United Nations System (ACUNS), in partnership with ASIL and the One Earth Future Foundation, have released a report entitled: “Suppressing Maritime Piracy: Exploring the Options in International Law”.  It is a useful report, and it is the product of a very smart and knowledgeable group of international law experts including friends of this blog like John Bellinger, Eugene Kontorovich, David Glazier, and Beth Van Schaack.  But like many of these committee panel reports, it doesn’t really come to any conclusion or consensus on the legal problem of how to encourage nations to punish piracy (at least not as far as I can tell).  But it is at least a start in the conversation.  My own view is that nations just won’t have the right incentives here and that ultimately, this is going to be dealt with by better self-help mechanisms on merchant ships. But I defer to the judgments of these experts, whose ideas a worth reading.

‘Climate Reparations’ by Maxine Burkett

by Melbourne Journal of International Law

[Associate Professor Maxine Burkett is the Director of the Center for Island Climate Adaption and Policy at the William S. Richardson School of Law, University of Hawai’i at Manoa.]

With the uncertain and deeply disappointing conclusion of the COP15, one thing has become crystal clear: states and vulnerable communities must explore alternative avenues to address the climate crisis and its uneven effects. In my article, I introduce a theory of climate reparations to meet the great and disproportionate injuries that will result from climate change.

The current and anticipated climate impacts demonstrate a grand irony: those who will suffer most acutely are also those who are least responsible for the crisis to date. That irony introduces a great ethical dilemma, one that our systems of law and governance are ill‑equipped to accommodate. Indeed, attempts to right this imbalance between fault and consequence have resulted in a cacophony of political negotiation and legal action between and amongst various political scales that have yielded insufficient remedies, if any. In the absence of a substantial commitment to remedy the harm faced by the climate vulnerable (those set to suffer first and worst), reparations for damage caused by climate change can provide a comprehensive organising principle for claims against the most responsible while placing key ethics and justice concerns concerns that have been heretofore woefully under-emphasised  at the centre of the climate law and policy debate. In other words, a reparations frame can organise communities of victims behind a common articulation of the violation.

In the past year, calls for climate reparations have become more numerous. They have meant one thing, however mandatory compensation to developing nations for the increasingly devastating effects of CO2 emissions. In recent decades, the scope and nature of reparations claims have, generally, shifted dramatically. Rather than serving merely as financial compensation to the victor for past damages suffered, reparations efforts now have a character and process with inherent value. Not simply looking to the past, reparative efforts are also forward-looking as they attempt to honour the past. And rather than fixate on actual remedy, the realisation of moral repair and social solidarity is as much bound up in the process as it is in the result. In sum, a reparations effort has both ‘ends’ and ‘means’ value.

A successful reparations effort can result in aggressive mitigation from the developed world while also ensuring long-term support for critical adaptation measures for the most vulnerable. Most importantly, however, reparations efforts can engage the globe particularly those in the developed world in the great ethical challenge posed by climate change and the developed world’s lacklustre response. For example, public outrage in the United States at the collapse in livelihood of hundreds of millions is virtually nonexistent. A discussion distinct from ‘caps’, ‘trades’, and ‘costs to the average consumer’ will help to illuminate suffering of the climate vulnerable, and the developed world’s understanding of its own responsibility. A reparations effort can shine that light.

For any reparative scheme to be truly successful, however, the remedy must introduce mechanisms that limit the ability of the perpetrator to repeat the offending act. In the case of climate change, the developed world needs to rapidly abandon its use of fossil fuels and replace that usage with materials that are inexhaustible and, at the same time, do not produce life‑endangering externalities. The reparations effort, beyond the tangible remedies that result, emerges as a valuable avenue for truly grappling with the profound moral problems that climate change has introduced. If done effectively, reparations, unlike the existing remedial mechanisms, can foster social solidarity and a just state of affairs  an outcome desperately needed as humanity faces its greatest challenge.

The full article can be read here.

Welcome to the U.N.’s “Bantanamo”

by Julian Ku


The UN’s new temporary quarters, during renovations, are not too popular with the staff.

For the next four years, the United Nations’ nerve center, including Secretary-General Ban Ki-moon‘s office, will be situated in a squat, three-story, corrugated steel building on the U.N.’s north lawn that looks like a cross between a suburban big-box store and a high-security lockup facility.

Bantánamo, a nickname embraced by U.N. staffers, has taken much of the grandeur out of diplomacy at the United Nations. It’s a serious comedown for U.N. civil servants and delegates who have been grinding away in the cause of peace in one of New York City’s architectural landmarks, the glass and marble U.N. headquarters tower and the U.N. General Assembly hall — now undergoing a $1.87 billion renovation.

I think they are overreacting. Or they don’t think Guantanamo is really that bad.

ASIL Lieber Society Event on IHLRI Air and Missile Warfare Draft Manual

by Kenneth Anderson

Last Thursday, February 4, the Lieber Society of the ASIL (the laws of war interest section) sponsored a program at ASIL’s Tillar House in DC to discuss the draft model manual on air and missile warfare that has been slowly evolving through the “Alabama process” and the International Humanitarian Law Research Initiative based at Harvard University.  Claude Bruderlein, director of the project (Yoram Dinstein serves as project advisor), came down to DC from Cambridge to present the current version of the Manual and to discuss where the project is going with respect to the Commentary.  Dick Jackson moderated, and DOD’s Jane Dalton and I commented.

It was an excellent discussion – Admiral Dalton had participated in the Alabama process and so had been fully involved in the development of the rules.  I was in the position, alas, of not having done any of the heavy lifting on the project itself – but then freely kibbitzing on the result.  Claude was his usual excellent and admirably clear self, with a good audience.  Congratulations to Dick Jackson and ASIL Lieber for organizing it.  (I am the outgoing Lieber Society Treasurer, by the way, and if you are not a member of ASIL and Lieber, let me recommend that you join.)  For anyone interested, here is the video from ASIL-YouTube.

ASIL February 4, 2010

(I would embed the video, but can’t figure out how to do it here – apologies!)

Melbourne Journal of International Law, Vol. 10-2: Opinio Juris Online Symposium

by Melbourne Journal of International Law

We are delighted to introduce the inaugural online symposium issue of the Melbourne Journal of International Law (‘MJIL‘) hosted by Opinio Juris. We would like to thank Opinio Juris, and Kevin Jon Heller in particular, for inviting us to participate in this partnership. We hope that this partnership contributes to the global reach of Opinio Juris by providing an Asia-Pacific perspective on international law. We hope to spark some interesting and lively discussions in the coming week.

This week, we will feature two pieces published in our most recent issue issue 10(2) which contains a symposium feature, entitled ‘Climate Justice and International Environmental Law: Rethinking the North­South Divide’. The symposium intends to analyse the intersections between law and emerging ideas of climate justice, and how international environmental law is shaped by and in turn reshapes (or fixates, or interrogates) our understandings of the NorthSouth divide. As we state in the symposium’s Foreword:

In focusing on ‘climate justice’, the symposium places questions of global equity and distributional justice at the core of international debates around climate change mitigation and adaptation. While the UNFCCC principle of ‘common but differentiated responsibilities’ presently recognises the differing historical state responsibilities for climate change as well as their varying capacities for mitigation and adaptation, this symposium seeks to complicate the ‘easy’ dichotomies of North/South, developed/developing and First World/Third World. In doing so, some central questions persist: Is it problematic to conceptualise global justice with reference to such binary categorisations (and what does this overlook) or is this terminology nonetheless useful in providing a language for thinking through unequal distributions of material wealth and global power relations? Can justice be found in present legal frameworks, through, for example, the ‘common but differentiated responsibilities’ principle or the forms of collaboration facilitated through the increasingly criticised Kyoto flexibility mechanisms? And ultimately who (or what) will bear the cost of global action (or inaction)?

Our first contributor this week is Associate Professor Maxine Burkett, Director of the Center for Island Climate Adaption and Policy at the William S. Richardson School of Law, University of Hawai’i at Manoa, who will discuss her article entitled ‘Climate Reparations‘. Burkett argues that climate change affects and will continue to affect vulnerable communities in the global South most acutely, especially the poor and island states. This, for Burkett, presents a great ethical dilemma for the global community and the developed world in particular, which has historically accounted for a disproportionate use of fossil fuels. In her article, Burkett thus develops a legal framework of climate reparations to redress the vast disparity of suffering and displacement caused to the ‘climate vulnerable’ by climate change. A reparations frame, for Burkett, has the potential to be profoundly morally transformative, as the developed world must assume responsibility for its past destructive behaviour and the consequences that flow therefrom and refrain from any such conduct in the future. The respondent will be Associate Professor Hari Osofsky, Washington and Lee University School of Law.

Our second contributor is Mairon G. Bastos Lima, PhD researcher at the Institute for Environmental Studies, Vrije Universiteit Amsterdam. Bastos Lima’s article, entitled ‘Biofuel Governance and International Legal Principles: Is It Equitable and Sustainable?‘, concerns environmental and social consequences that flow from the growth in alternative fuel sources, which are held up as a viable mitigation strategy for climate change. In particular, he focuses on the questions of global equity, using the Rio Declaration on Environment and Development as a framework for accessing the effectiveness of the present biofuel framework. Finding the current biofuel governance efforts to be illegitimate, non-transparent and inequitable, Bastos Lima argues that a more rigorous and democratic biofuel governance regime is required to give voice to the less powerful, in particular, the affected communities in the global South. The respondent will be Professor C. Ford Runge, Distinguished McKnight University Professor of Applied Economics and Law at the University of Minnesota.

We hope that you enjoy and participate in the upcoming discussion around the meaning of climate justice and the forms of legal response climate justice necessitates.

Information on our submissions process, publication policy and past issues can be accessed here. If you would like any further information about the Journal, please contact the Editors at law-mjil [at] unimelb [dot] edu [dot] au.


Laura Bellamy, Sara Dehm and Jeremy Leung

2009 Editors

ICJ Seeking Clerks!

by Kevin Jon Heller

The Administration and Personnel Division at the International Court of Justice has asked us to inform our readers that the Court is looking to hire new clerks.  According to the announcement, the General Assembly has assigned the Court six additional clerkship positions, permitting each judge to have a full-time clerk of his or her own.  The vacancy announcement can be downloaded here; the link to the ICJ’s vacancy page is here; and here are some of the particulars:

Functions: Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry.

Qualifications and skills: university degree in law, with significant academic background in public international law or professional experience in the field. Graduate and/or post-graduate studies in public international law would be an asset; two years’ experience in the settlement of international legal disputes with an international organization, government, law firm or other private sector entity would be desirable.

Languages: French and English are the official and working languages of the Court. Excellent knowledge of and drafting ability in one of these languages is required, as well as a working knowledge of the other. Command of other official languages of the United Nations would be an asset.

Needless to say, this is an amazing opportunity for recent law graduates.  The ICJ clerks I know have all had an amazing time.  The clerkships, which last two years, are even well paid — more than 50,000 euros per year.  The deadline to apply is April 6.

PS.  Perhaps it’s because I’m used to the US clerkship system, I find it more than a little remarkable that the ICJ judges have never had full-time clerks of their own until now.

New Law Review Partner — Melbourne Journal of International Law

by Kevin Jon Heller

I am delighted to announce that Opinio Juris has formed a partnership with the Melbourne Journal of International Law, one of the leading non-US journals in the field.  Twice a year, beginning tomorrow, we will be hosting the same kind of symposia that we have been holding the past couple of years for the Yale Journal of International Law and the Virginia Journal of International Law.  Unlike those journals, MJIL is student-run but peer-reviewed.  The first symposium will feature two articles from the most recent issue of the journal.

The editors of MJIL will be introducing the journal and the articles tomorrow.  I hope our readers will enjoy the symposium.

President Obama (and 37 States) Agree To Let Canadian Firms Get Stimulus Money

by Julian Ku

Last week, the U.S. and Canada reached an agreement to permit Canadian firms to bid on projects funded by U.S. stimulus money based on the legislation enacted last year. The confusing part is just how exactly this will occur.  According to CTV,

Canadian firms will be exempted from “Buy American” restrictions under seven of the stimulus programs, in 37 U.S. states that signed on to the World Trade Organization. Those states will be able to use American stimulus money to buy Canadian manufactured goods.

Apparently, the whole deal is being done via an executive agreement, an executive order, and some sort of subsequent agreement with some (but not all) of the states. (The USTR website confirms the report, but has no further details).

The interesting part of this agreement to me is my belated realization that only 37 of the 50 U.S. states are bound by the WTO procurement agreement.  I somehow didn’t know that, although I am all for foreign policy federalism.  Canadians seem to realize that this agreement with the U.S. government will only get them so far.  As one Canadian opposition leader notes (correctly).

“The American government machinery is so amorphous, that a deal signed with the administration in Washington is a long way away from applying to the municipal government in Cleveland, or in Bangor, Maine,”

It’s really not such a great deal for Canada. They are getting, one year later, the legal access (in 37 states) that they should have had a year ago. But I suppose you have to take what you can get.

Jewish Praise for Inglourious Basterds

by Kevin Jon Heller

Eight Oscar nominations and accolades at the Museum of Tolerance — not a bad week for Mr. Tarantino:

Last night at a special community screening at The Simon Wiesenthal Center Museum of Tolerance, internationally renowned rabbi Marvin Hier addressed the film’s growing cultural significance among a panel that included Tarantino, ‘Basterds’ producer Lawrence Bender, actor Eli Roth and media entrepreneur Dan Adler, who organized the evening in honor of his recently deceased father Mayer Michael Adler, a survivor of the Auschwitz concentration camp.

“Let me explain why I think it was a great idea to sponsor this film,” Hier said, addressing concerns from Holocaust survivors who were troubled by some of the film’s subject matter. “Not every film on the second World War has to be about the Holocaust.”

No one would argue that “Inglourious Basterds” is a traditional Holocaust movie, but it does presume a sophisticated knowledge of the Holocaust in order to grasp its emotional impact. Hier, who is an Oscar-winning filmmaker himself, said that historical accuracy is not a necessity in harnessing the power of cinematic fantasy. “This [film] has a certain release factor,” he said. “If only we would have been privileged to see the Nazis defeated early on; imagine that they were all gathered in a theater and we didn’t have to roll the clock until 1945 to find out that 6 million Jews plus millions of other individuals were killed by an insane man named Adolf Hitler.”

For many Jews, including Hier, the fact that ‘Basterds’ permits not only historical revisionism but also deep seeded Jewish revenge is psychologically satisfying. “I find it to be quite exciting,” Hier said. “The plot I thought was quite ingenious.” Though he did point out that there were, historically, several failed attempts on Hitler’s life, so the idea of an assassination mission is not implausible. Hier also spoke of Pinchas Rosenbaum, the son of a rabbi whose family was killed in Auschwitz and who successfully infiltrated the SS to avenge them.

I know this is not a uniform reaction — many Jews, particularly here in Melbourne, thought that the film made light of Hitler and the Holocaust.  Readers are no doubt aware that I rarely like Holocaust movies.  But I loved Inglourious Basterds, for the same reasons as Rabbi Hier.

I’m just starting to write the “Aftermath” chapter of my book, which discusses the gradual erosion of the US’s commitment to the war-crimes program following the end of the NMT.  The villain in the story is John J. McCloy, the High Commissioner of Germany — who in addition to setting nearly all of the NMT convicted free by the early 1950s, was also one of the US officials who had turned down Jewish requests to bomb Auschwitz on the ground that doing so was “impracticable” and would divert necessary resources from “decisive operations elsewhere.”  Recent research indicates that, contrary to McCloy’s position, Allied bombers could have reached Auschwitz and the rail lines leading to the camp any time after June 1944 — and that an attack could have considerably slowed the killing process, saving perhaps some 400,000 Hungarian Jews.

If only McCloy and the other US officials had shown Tarantino’s creativity…

Breaking News: The Obama Administration Will Not Seek to Join the ICC

by Julian Ku

Apparently, the Obama Administration has decided it will not seek ratification of the ICC Rome Statute.  There is still no official policy, as far as I know, but this is the latest from Assistant Secretary of State for War Crimes Stephen Rapp. This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration.  This doesn’t exactly bother me. But this raw political fact suggests that the U.S. failure to join the ICC is rooted in deeper political and structural concerns than partisan politics and ideology.

Doing Justice in a Dusty Courtroom in an Overlooked Corner of the World

by Roger Alford

Here’s a wonderful story from my friend and former student Jeff Cook on the wonderful work he is doing in Cambodia with International Justice Mission to fight child prostitution. Jeff Cook is a former law clerk to Judge Urbina in Washington, D.C. and a former associate at O’Melveny & Myers. Here is Jeff’s account of the conviction of a man who had been selling the sexual services of an eight-year-old girl:

“Just before Christmas I received a gift that was far greater than any I had ever received. From an impoverished village outside of Phnom Penh where abuse, molestation and trafficking are part of daily life, a story of triumph, hope and inspiration emerged. A little over two years ago a small eight-year-old girl, weighing no more than 40 pounds, was being sold day in and day out to foreign pedophiles. Through persistence and prayer, IJM was able to work with the police to rescue this particular girl from her horrific situation. A few months later, the pimp, a strikingly tall Vietnamese man, was arrested for arranging these elicit and illegal encounters with pedophiles.

From the time of her rescue, the young girl lived in a shelter due to the danger of further abuse if returned to her family. As she spent more and more time at the shelter she became better able to verbalize what had happened to her. This is a testament both to the strength of the young girl and to the effectiveness of the care she received from the shelter’s counselors and staff. Sitting in on the trial preparation well over a year after her rescue, I was amazed to see the ease with which she discussed the crimes committed against her. And in a moment of downtime she exhibited her comfort and conversancy with these sensitive topics when she picked up a large picture book and began instructing those in the room on the differences between appropriate and inappropriate behavior with children. At that point, I pinched myself, and to my relief, I was indeed awake witnessing a miraculous development. I prayed at the time that she could pull upon this strength to provide testimony at the trial that was to take place the following week.

On the morning of trial, which was scheduled for the week before Christmas, she appeared calm, cool and collected. But when the perpetrator entered the courtroom, everything fell apart for this young girl. She began shaking and crying uncontrollably, gripped with fear at the sight of the imposing man who had been the vehicle for years of sexual abuse. As counselors comforted her, the court kindly provided a screen to shield the young girl from the perpetrator’s intimidating glares….

Are President Obama’s Assassinations of U.S. Citizens Constitutional?

by Julian Ku

The NY Times Opinionator has a nice roundup of lefty-blog reaction to the Obama Administration’s claim of the legal authority to kill and assassinate U.S. citizens abroad (and its admission to having already done so). Most lefty-blogs seem unconcerned about this policy, with the notable exception of Glenn Greenawald. From a legal perspective, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy. (One searches in vain on Balkinization for the outrage, for instance).  Or have they joined the “Dark Side” where such bloggers famously accused Dick Cheney and John Yoo of residing?  Here’s why these assassinations/killings pose such a real legal problem, especially under their previously stated views of how U.S. law should work.

It is an article of faith of many critics of the Bush policies that the detention of U.S. citizens as enemy combatants is almost always illegal, that the U.S. is bound by constitutional requirements even when acting abroad in a war zone, and especially when it is acting against U.S. citizens.   But if one believes all of these things, then one cannot possibly believe that deliberately assassinating U.S. citizens is constitutional.  As I’ve said before, if the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing (and this is now a requirement of U.S. law), then I can’t quite see how the U.S. can at the same time deliberately assassinate that same U.S. citizen without a hearing.  Am I missing something?

As some of the commenters have pointed out, the nationality of the victim is not that important from the perspective of international law.  Under international law, the main question is whether there is legal authority to kill or assassinate anyone, much less one’s own nationals.  But even under international law, as readers of Ken Anderson’s posts here and at Volokh know, it is still not all that clear.   Indeed, there seems a more than plausible argument that certain kinds of assassinations, as currently executed by the Predator drones, could indeed constitute a violation of the law of war.

In any event, if the U.S. is going to pursue this policy, it should openly defend its legality.  As Stuart Taylor suggests, now might be a good time for Harold Koh to earn his keep over at the State Department and lead a robust legal defense of U.S. practice before the world community and in NGO circles.  And what better place to launch this defense do so than here at the Opinio Juris?

A Response to Tom Ginsburg, Michael Vandenbergh, Mark Cohen, and Jonathan Wiener

by Daniel Abebe and Jonathan S. Masur

We are very grateful to Professors Ginsburg, Vandenbergh, Cohen, and Wiener for engaging in this dialogue with us. The value of discussing these issues with such leading scholars in the field cannot be overstated.

Professor Ginsburg’s very helpful comments push us to focus on two main points: (1) the U.S. has similar internal dynamics that make committing to a climate change agreement difficult; and (2) China can more easily implement an agreement when it commits to “environmental policy  . . . over growth.” Professor Wiener’s post makes the first point as well. We agree that the US and other countries have internal divisions that complicate their attempts to deal with climate change.  We argue, however, that the differences in China are of a far greater magnitude than the blue state/red State divisions in the US and have more serious consequences for climate change. Eastern China is 5 times richer than Western China and the most serious fault lines that produce social instability—rich and poor, industrialized and agrarian, urbanized and rural—fit the East/West divide.  Moreover, in the US, blue states turn red and vice-versa; the CCP must satisfy its constituencies through economic growth, not representative government.  The cost of failure is much higher for the CCP (and China) than for the Democratic or Republican parties in the US.

Second, we agree completely that “when” China commits to climate change, it has the capacity to be effective in implementation. The question is how we should understand China’s incentives and when we can anticipate that this commitment will occur.  We don’t argue that it is impossible.  Rather, we argue that extant studies of China’s incentives miss the fact that the cost of restructuring internal center/province governance to address climate change is much higher than currently anticipated and that the projections of future emissions are too low because they don’t examine China’s internal dynamics.  We suggest that China will deal with climate change once it is more comfortable with the status of its domestic challenges, and that such a time will come later than most analysts predict.  Kyoto and Copenhagen suggest that more time is needed. While we certainly agree with Professor Ginsburg’s excellent comment that the US’s federal structure and adversarial legal culture can be an obstacle for climate change, we think that the internal obstacles that China faces—the necessity of aggressive growth policies, the social instability and East/West divisions—might be greater long-term obstacles for climate change.

Similarly, Professor Wiener may well be correct that internal dynamics will push China towards—rather than away from—an international climate change agreement. The mechanisms he points to are undoubtedly real, and we do not doubt that they exert some force. We suspect, however, that the opposite forces we describe in the Article will dominate any pro-regulatory tendencies, at least in the short term. Domestic Chinese movements for environmental protection are dwarfed by ongoing domestic demand for economic growth. And while Western China might have something to gain from a transition to a greener economy, it has much more to lose from curbs on cheap coal-based electricity and carbon-intensive cement production, to name just two industries.

Finally, we agree with Professors Vandenbergh, Cohen, and Wiener that innovative solutions—supply-chain pressures or the provision of extra pollution credits—might hold the key to inducing Chinese compliance with an international climate change accord. We hope that their optimism regarding these measures will turn out to be well-placed. We wish to emphasize only that we believe that the cost of implementing even these more creative and politically palatable approaches will be high—higher than any American policymaker yet realizes. Until the United States and Europe confront these costs squarely, a workable carbon emission agreement will remain out of reach.

A Response to Daniel Abebe and Jonathan Masur by Jonathan B. Wiener

by Jonathan B. Wiener

[Jonathan B. Wiener is the Perkins Professor of Law and Environmental Policy at Duke University; Eli Goldston Visiting Professor at Harvard Law School; and a University Fellow at Resources for the Future]

In their paper on the “Two Chinas” and climate change policy, Professors Abebe and Masur raise an important point about how China’s internal politics may affect its international relations. They observe that China has relatively richer eastern Coastal provinces and a poorer West, and that continued economic growth (especially in the West) is vital to the Chinese leadership’s priority objective of preventing internal unrest. They also suggest that a disaggregated look at these two Chinas portends higher CO2 emissions than seen in aggregated forecasts. Thus, they argue that the costs to China (both economic and political) of reducing greenhouse gas (GHG) emissions are higher than aggregate models have indicated. They posit that China will therefore not agree to reduce its GHG emissions without significant international side payments from wealthy countries (and may also need to generate internal side payments, from the Coast to the West). But they fear that direct financial transfers from the US to China are politically infeasible in the US. They see more promise in delivering such side payments via transfers of valuable technology from the US and Europe to China.

In this brief post, I can offer several reactions. First, I fully agree that internal politics are highly important to international relations and in particular to participation in international environmental treaties. (For earlier work making this point, see, e.g., Kal Raustiala, Domestic Institutions and International Regulatory Cooperation, 49 World Pol. 482 (1997); Jonathan B. Wiener, On the Political Economy of Global Environmental Regulation, 87 Geo. L.J.749 (1999)).

Second, while Abebe and Masur focus on the influence of China’s domestic divisions on its costs of reducing GHG emissions, they do not address the influence of China’s domestic politics on its benefits of reducing GHG emissions. I argued in a recent paper that the Chinese leadership may plausibly be concerned that political unrest may also be sparked by extreme storms and other environmental disasters that are perceived as linked to climate change. This is especially true in China, which has a history of dynasties falling after natural disasters, and a popular psychology that links the two. Hence China’s internal politics may also motivate the Chinese leadership to see greater benefits from avoiding climate change. See Jonathan B. Wiener, Climate Change Policy, and Policy Change in China, 55 UCLA L. Rev.1805 (2008). This is distinct from and on top of the more general trends that the appreciation of climate change damages in China may be rising, and the costs of GHG emissions abatement may be falling.

Moreover, China’s efforts to reduce the carbon intensity of its economy may also aid its Western economy. Although the Western provinces are major sources of coal, there are also growing new industries in wind energy and nuclear power that may be sourced or sited in the West. And there is some discussion of a domestic GHG emissions trading program within China being oriented to direct transfers to the West.

Third, the rapid rise in China’s GHG emissions in recent years (observed and extrapolated by Abebe and Masur) may also be due to other factors related to climate change policy, notably, possible leakage from the climate policies adopted in Europe and elsewhere. Thus, the type of economic growth and associated rising GHG emissions in China (both Coastal and Western) may be endogenous to the international climate change regime (or its failure).

Fourth, I agree that some side payments will likely be needed to engage China, and that direct government-to-government financial transfers are unlikely (and, worse, would be distorted by internal politics in both donor and recipient countries). The better method, as Dick Stewart and I argued in our book Reconstructing Climate Policy (2003), is through international allowance trading, with China receiving an implicit side payment in extra headroom allowances, and using these to trade back to the US and Europe in return for technology. Thus, the side payment would be delivered in myriad competitive private transactions, a much more cost-effective, and more politically palatable, approach; indeed, US firms would be selling technology to China in return for allowances obtained at lower cost than domestic US abatement.

Finally, and perhaps most interestingly from the standpoint of comparative law, the Coastal-Western tension that Abebe and Masur see within China may be not so different from the Coastal-Western tension within the US. If so, internal side payments may be necessary within both China and the US if the Coastal beneficiaries of climate policy in each country are to persuade the Western resource-rich provinces to go along with a national climate policy. Analogous regional tensions are present within European climate policy. Further study could compare the abilities of the rather different legal/political systems in China, the US and Europe to arrange internal transfers that serve the aggregate national and global interest in effective climate policy.

A Response to Daniel Abebe and Jonathan Masur by Michael P. Vandenbergh and Mark Cohen

by Michael P. Vandenbergh and Mark Cohen

[Michael P. Vandenbergh is Tarkington Professor of Law; Director, Climate Change Research Network; and Co-Director, Regulatory Program at Vanderbilt University Law School. Mark Cohen is Vice President for Research, Resources for the Future; Director, Vanderbilt Center for Environmental Management Studies; Professor of Management and Law, Owen Graduate School of Management at Vanderbilt University.]

Daniel Abebe and Jonathan Masur have made an important contribution to the international climate literature by emphasizing the importance of understanding China’s administrative and economic constraints. They argue that China does not have the incentive to enter into an agreement that requires substantial emissions reductions, and we hope that their paper is the first of many that will look inside the black box to better understand why it might not. A more complete understanding of the “Two Chinas” is all the more important given the lack of progress in Copenhagen. Of course, we note that the United States is not immune to administrative and economic constraints, and that a complete analysis of the prospects for an international climate change agreement must account for the incentives of all the major contributors.

In a forthcoming paper, Climate Change Governance: Boundaries and Leakage, 18 N.Y.U. Envtl. L.J. (forthcoming 2010) (available at, we argue that global supply chains can be a source of additional incentives for China and other countries to join in and comply with an international agreement. Supply chain pressure also can generate emissions reductions in the absence of an international agreement. If corporate carbon footprints and product carbon labels include supply chain emissions, social license pressure on firms in the US and EU can lead to pressure for carbon emissions reductions by suppliers in developed and developing countries. This disclosure strategy is not a panacea, but it is one of the few viable ways to shift the incentives of both Chinas, creating economic incentives at the firm level in all areas of China and bypassing the political concerns that are the focus of the Abebe and Masur paper. Most of the public and private reporting schemes that have been proposed or adopted to date, however, do not include supply chain emissions within the corporate boundary (e.g., many include a 25,000 metric ton threshold). In fact, they risk making the problem worse by creating incentives for leakage via off-shoring to China and other developing countries.

Abebe and Masur also have highlighted the important fact that factories are heterogeneous with respect to carbon emissions. They argue that clear regional variations exist and that these variations cast doubt on existing emissions forecasts.  These types of variations can be accounted for in corporate carbon footprinting and product labeling schemes through the use of default GHG ratings by location of factory. All Chinese steel products might not be the same—some may be dirtier than others.  This heterogeneity highlights why bringing the analysis down to the factory level has value, even if it is an imperfect science.

A Response to Daniel Abebe and Jonathan Masur by Tom Ginsburg

by Tom Ginsburg

[Tom Ginsburg is a Professor at the University of Chicago Law School]

Thanks for this opportunity to respond to the Article by Professors Abebe and Masur.  My learned colleagues are certainly correct that, notwithstanding its status as a unitary and authoritarian state, China is an internally complicated place, with substantial de facto control at the provincial level.  Besides the East-West cleavages that Professors Abebe and Masur focus on, there are other internal tensions among different levels of government, different governmental agencies at each level, and different ideological groups within the Party. This internal complexity would complicate any climate change deal, were one to be within reach.

Of course, the United States also has internal tensions that undermine the possibility of reaching a climate change agreement. The U.S. also has an imperative of economic growth, and has a population not fully convinced of the benefits of addressing climate change. To over-simplify, the internal debate over climate change here roughly tracks the red-state/blue-state (or red rural/blue urban) distinction.   So there may be a “Two Americas” problem that is roughly symmetric with the “Two Chinas” problem.

Perhaps more importantly, China has a distinct advantage over the United States in climate change policy.  In China, when major political decisions are taken, they can be (though by no means always are) effectively implemented.  Were the center to decide that environmental policy was a priority over growth, it would probably be able to effectuate it, just as China has dealt with numerous other formidable challenges in building a “socialist market economy.” (Consider how the CCP divested the military of its profitable businesses, implemented tax reform, fired hundreds of millions of workers, suppressed major political reform movements etc.)  While it is unlikely that China would decide that, say, the Western regions should subsidize the richer coastal regions, do Professors Abebe and Masur really believe that China could not implement such a program if it wanted?  The capacity for executive enforcement is quite formidable once decisions are taken.

In this regard, the democratic U.S. may have a more difficult time implementing costly policies.  We have a formally federal structure that complicates policy implementation. We have a culture of “adversarial legalism” in which no major decision ever goes unchallenged in the courts. And we seem to be quite unwilling to take any positions that require political will.  Bottom line: the U.S. may be just as much an obstacle as China in this area.

The Standard for Determining Intent to Commit Genocide

by Julian Ku

As Kevin notes, the ICC Appeals Chamber has overruled the Pre-Trial Chamber on the question of whether Sudan’s President Bashir can be charged with genocide.  In a very useful note, Chile Eboe-Osuji points out here that the Appeals Chamber did not in fact provide the Pre-Trial Chamber with guidance on what standard it should adopt to determine whether there was sufficient evidence of the “intent” to commit genocide to issue an arrest warrant.  As he puts it,

Curiously, though, the Appeals Chamber declined to give guidance to the Pre-Trial Chamber as to the correct applicable standard for the issuance of a warrant of arrest. Rather, the Appeals Chamber left it up to the Pre-Trial Chamber to devise the correct standard, as they reconsidered the case. This is not very helpful.

Read the whole post to see his best guess as to what the standard will be.  I would be curious to see if folks have different views than his.

International Agreements, Internal Heterogeneity, and Climate Change: The “Two Chinas” Problem

by Daniel Abebe and Jonathan S. Masur

[Daniel Abebe and Jonathan S. Masur are Assistant Professors of Law at the University of Chicago Law School. Their Article may be found here.]

On July 8th and 9th, 2009, the New York Times published two seemingly unconnected articles about China. One focused on China’s rejection of an agreement to curb greenhouse gas emissions, while the other concerned clashes between Uighurs and Han in Xinjiang Province in Western China. Although these two stories appeared to have little to do with one another, they were actually closely linked. China’s unwillingness to join a climate change agreement is related to its internal political, economic, and social dynamics: the regime’s future depends on its ability to ensure social stability in Western China by guaranteeing high rates of economic growth. A climate change agreement threatens this continued growth, and thus threatens China’s internal balance.

Scholars miss this because they mistakenly treat China as a “black box”: a unitary state whose domestic idiosyncrasies are unimportant. This error has consequences, producing overly optimistic projections about China’s incentives to fight climate change and producing an inability to appreciate the international impact of China’s internal challenges.

The conventional wisdom on China’s willingness to join a climate change agreement reflects this error. The consensus is that the world would benefit from such an agreement, and that such an agreement would be worthless without China. Scholars acknowledge that joining an agreement is not in China’s self-interest. China’s will lose from emissions limitations, while China has little to gain because it stands to lose relatively little if global warming occurs. Despite this difficult problem, scholars conclude that China can be persuaded relatively easily through a series of side payments and that this can be accomplished in a manner that is palatable to the U.S. and Europe.

We believe that this conclusion is flawed. We pry the lid off the Chinese “black box” and explore the impact of internal dynamics on China’s interest in an agreement. Our conclusions suggest that it will be far more difficult to reach a meaningful agreement in the immediate future.

China has several striking internal characteristics. First, China has delegated tremendous authority to provincial and local governments. Second, the Chinese Communist Party’s (CCP’s) success is measured by its ability to create private-sector economic growth. Third, China encompasses an industrialized, prosperous East, and a more agrarian and poor West. Among industrialized nations, China is remarkable in its domestic heterogeneity.

The presence of “Two Chinas” will create problems for negotiating a meaningful agreement. First, the CCP has adopted economic growth to justify its rule. In Eastern China, the CCP’s growth policy worked. Western China, however, is far behind: per capita GDP in Western China is less than half of Eastern China, resulting in income inequality and social instability. Economic growth in Western China has become important and the CCP has prioritized it. China is likely to balk at any agreement that might imperil growth.

Second, as a result of its growth-driven delegation of power, the CCP suffers from an erosion of state capacity: the provinces often ignore the central government, frequently without meaningful consequences. Environmental regulatory agencies are often subordinate to the bodies they regulate.

Finally, the vast majority of economic and scientific projections appear to have underestimated China’s future emissions by failing to account for internal heterogeneity. Eastern China is already industrialized and wealthy; it will likely move towards cleaner technologies and services. Western China is poorer and more agrarian, and the development pattern for such an area involves a shift towards industrialization and higher per capita energy consumption—and Western China is moving in this direction.

Every quantitative forecast of Chinese emissions—save for two—uses only national-level data and washes out distinctions between East and West. Of the two that employ sub-national data, one projects higher emissions than any of the national-level studies; the other projects much higher emissions. This suggests that Chinese carbon emissions in the future may be greater than the models have anticipated, increasing the cost to China of an agreement. Given the importance of economic growth, the structure of Chinese governance, and the need to develop Western China, the prospects for China choosing to join such an agreement in the immediate future seem slim.

U.S. Claims Legal Authority to Assassinate Americans

by Julian Ku

I’ve been on blog-silence the last few months, but one of my students today made me feel a little guilty about my lack of blogging, so I’m back (at least for now).  So while not wanting to interrupt this great online symposium, I’ll just point our readers to this remarkable little exchange between U.S. Director of National Intelligence Dennis Blair and members of Congress.

“We take direct actions against terrorists in the intelligence community; if … we think that direct action will involve killing an American, we get specific permission to do that,” Director of National Intelligence Dennis Blair told the House Intelligence Committee.

Blair goes on to helpfully explain that such assassinations will not be for free speech, but for “engaging in action that threatens Americans.”

In fact, as the report goes on to point out, the U.S. Predator strike campaign has already killed a number of Americans in Pakistan associated with Al Qaeda.  So I guess this isn’t such a big deal. But as a legal matter, it is odd that the U.S. must grant substantial constitutional rights to citizens abroad, and it must even grant habeas rights to challenge their status to U.S. citizens held as enemy combatants, but it can target and deliberately kill Americans abroad without notice or a hearing.  Would love to see the OLC opinion (no doubt by Marty Lederman) on that one…

The Pushback Against the Appeals Chamber Begins

by Kevin Jon Heller

I intend to closely follow the reactions to the Appeals Chamber’s decision on the genocide charges against Bashir.  The pushback has already begun in a predictable place: the Making Sense of Darfur blog, which has led the charge against the arrest warrant. The post itself, in which David Barsoum asks “what is the ICC really after in Sudan?”, is not particularly noteworthy, because the answer is straightforward: accountability for a mass murderer who has done everything he could for nearly two decades to prevent any kind of peace that would threaten his regime.  More interesting — and more troubling — is Alex de Waal’s comment to Barsoum’s post.  He writes:

This episode at the ICC is somewhat bizarre. In March last year, the pre-trial chamber issued the arrest warrant that the Prosecutor had requested. This made Pres. Bashir into a fugitive from justice. The crimes for which he is charged are no less heinous than genocide. Any additional charges added subsequently make absolutely no difference to that reality. The Prosecutor’s decision to appeal against the exclusion of the genocide charges, while perfectly permissible in law, served only the purpose of satisfying the personal or political ambition of the Prosecutor. If the ICC ever succeeds in getting Pres. Bashir in Court, the Prosecutor can then add whatever charges he believes are warranted by the evidence. Insisting on them at this stage is a political act.

None of Alex’s claims are compelling…

Medellín, the Alien Tort Statute, and the Domestic Status of International Law

by David H. Moore

[David H. Moore is a Professor at J. Reuben Clark Law School, Brigham Young University]

The Supreme Court’s decision in Medellin v. Texas has understandably generated substantial debate on the status of treaties in domestic law. Medellin has significant implications for three other areas of foreign relations law as well: Alien Tort Statute litigation, the domestic legal status of customary international law, and the development of a uniform doctrine governing the domestic status of both treaties and customary international law.

ATS Litigation

While most ATS claims are grounded in CIL, treaty-based claims are also raised. Treaty-based claims will not succeed, however, unless the treaty is self-executing and the plaintiff has a cause of action. By endorsing a broad notion of non-self-execution and by endorsing the presumption that treaties do not create domestic rights of action even when treaties “directly benefit[] private persons,” Medellin restricted prospects for treaty-based claims under the ATS. Medellin also undermines the more common CIL-based claims. In Sosa v. Alvarez-Machain, plaintiff Alvarez cited the International Covenant on Civil and Political Rights as evidence that CIL prohibits the type of arbitrary detention he suffered. The Court discounted the evidentiary value of non-self-executing treaties like the ICCPR in identifying actionable norms of CIL, stating that even if Alvarez properly represented the ICCPR’s content, he had mustered “little authority that a rule so broad has the status of a binding customary norm today.” Medellin’s broad view of non-self-execution reduces the evidence available to establish viable CIL-based claims.

The Domestic Status of Customary International Law

Medellin also bears on the more substantial question of CIL’s domestic legal status. That question has split scholars into two primary camps: a modernist camp that perceives CIL as federal common law that the federal judiciary may apply in the absence of positive authorization, and a revisionist camp that maintains that the political branches or Constitution must authorize federal judicial use of CIL as a rule of decision. I have argued, based on Sosa, that the Supreme Court favors the revisionist perspective. Medellin strengthens that argument by displaying the same separation of powers vision evident in Sosa. In that vision, which is consistent with the revisionist view, the political branches take the lead in making domestic law based on international law and in conducting foreign affairs. The vision is evident in the considerations Sosa provided to guide lower courts in identifying actionable norms of CIL in ATS cases—the intent of the political branches, specific definition, wide acceptance, practical considerations, effects on foreign affairs and the political branches’ foreign affairs authority, and alternative means of enforcement. The vision is also evident in the Sosa Court’s comments on the limited role of the judiciary in exercising common law powers and managing foreign relations.

Medellin manifests the same separation of powers vision. In deciding whether the relevant treaty obligations were self-executing, the Court considered the intent of the U.S. treaty makers, the specificity of the treaty obligations, other state parties’ understanding of the treaty obligations, the potential consequences of classifying ICJ judgments as inscrutable federal law, the effects on foreign affairs and political branch authority of eliminating political discretion to reject ICJ judgments and of rendering self-execution a case-by-case judicial question, and the existence in the Security Council of an international alternative to domestic judicial enforcement. These considerations reflect the view that Congress and the executive should have “the primary role in deciding when and how international agreements will be enforced.” In short, the separation of powers vision that undergirds both the revisionist position and Sosa appears in Medellin.

Medellin supports the revisionist position in two other ways as well. The Court’s repeated (and confusing) suggestion that non-self-executing treaties are not domestic law and not merely judicially unenforceable, evidences a view that international law, absent incorporation, generally resides outside domestic law. And Justice Breyer’s divergent conclusions in Sosa and Medellin—favoring a more limited role for CIL than the Sosa majority allowed but a more expansive role for treaties than the Medellin Court permitted—indicates that he, at least, may appreciate the revisionist suggestion that treaties should, absent statute or constitutional amendment to the contrary, have a broader domestic role than CIL.

A Developing Uniformity

Not only do the considerations that Medellin invoked to determine self-execution reveal a separation of powers perspective similar to Sosa’s, those considerations significantly resemble the guidance Sosa provided for the creation of common law causes of action based on CIL. With regard to both treaties and CIL, the intent of the political branches, specificity, mutuality, practical consequences, foreign affairs effects, and alternative means of enforcement (at a minimum) affect the domestic legal import of international law. The Supreme Court’s most significant explanation of self-execution analysis thus supports the notion that a uniform doctrine governing the domestic status of both treaties and CIL is developing.

Breaking: Pre-Trial Chamber Must Reconsider Genocide Charges Against Bashir

by Kevin Jon Heller

As I predicted, the Appeals Chamber has rejected the Pre-Trial Chamber’s interpretation of the “reasonable grounds” standard:

Appeals judges said the court was wrong to conclude in March that there was insufficient evidence to merit charging al-Bashir with three genocide counts. Instead, it had charged him with seven counts of war crimes and crimes against humanity for allegedly orchestrating a campaign of murder, torture, rape and forced expulsions in Darfur province.

The standard of proof the court sought for genocide charges “was higher and more demanding than what is required” in its statutes, appellate judge Erkki Kourula of Finland said Wednesday.

The decision likely paves the way for al-Bashir to be indicted with humanity’s worst crime – attempting to wipe out entire ethnic groups in the war-ravaged province.

I will have much more to say about the decision soon.  The decision is available here.

POSTSCRIPT: I’m glad the Appeals Chamber reached the correct conclusion, but it’s absurd that it took them nearly eight months to issue an 18-page decision (13 of which are simply background).  This was — at least from a legal perspective — an easy issue.  The AC should not have kept the OTP, Bashir, and the rest of the world hanging so long.

A Response to Guy Mundlak

by Kevin Kolben

I would first like to thank Professor Guy Mundlak for generously taking the time to respond to my Article, and Opinio Juris for hosting this forum.

Professor Mundlak is very correct to note that over time civil liberties and socioeconomic matters have become more intertwined. What’s more, the overlapping identities and realms in which workers function mean that to be protected and empowered in the sphere of work, they must also be protected in other spheres of human functioning. The same holds true in the inverse. Accordingly, the study of labor and labor law is no longer relegated solely to the workplace, and the study and protection of human rights is no longer only about civil liberties and the relationship to the state. With this I agree.

Professor Mundlak also suggests that the differences that I highlight between labor and human rights movements are perhaps somewhat overstated. And in fact I agree that they probably are—but not by much. Human rights, such as privacy rights, or the rights to water and education that Professor Mundlak mentions, no doubt penetrate into the private sphere. And indeed, as I mention in the Article, there are increasing efforts to try and apply international human rights regimes to non-state actors by scholars and practitioners. But the fact that there is overlap does not mean that there are not still fundamental differences in the conceptualization of these rights. I would be interested, for example, in thinking about what would constitute a democratic, or citizenship approach to privacy in the workplace—notions that I believe are intrinsic to labor rights.

Professor Mundlak in fact draws on the notion of citizenship to propose a very interesting way to think about a traditional cleavage between labor and human rights—that labor rights were traditionally thought of as the power to have rights, while human rights were the rights to have power. What has occurred, he suggests, is that scholars and activists from both arenas have come to understand that both sides of the coin are needed. But I wonder if this is in fact somewhat overstated; and I do believe that the nature of power—who wields it to what ends—remains very different for these two groups. For example, power in human rights discourse tends to mean legal power and rule of law: social movements are fine, but only to the extent that they stay within certain bounds, and help institutionalize desirable legal regimes. In other words, human rights discourse and activists (at least in the United States) tend to underemphasize the power to have rights, in favor of the right to have power. I believe this under-emphasis is particularly notable in the case of groups such as workers and the poor, whom human rights elites might be wary of acquiring “too much power.”

I would very much like to see more of a convergence, but I have yet to see it in practice, culture, or ideology.

The right to Have Power and the Power to Have Rights: A Response to Kevin Kolben by Guy Mundlak

by Guy Mundlak

[Guy Mundlak is a Professor at Tel Aviv University Buchmann School of Law]

I opted for law school because I wanted to take part in the practice of human rights. Several years later I found myself deeply engrossed in the study of labor law. At the time, Israel was still considered to be strongly collective, solidary, and densely covered by collective agreements. Being organized was not a contested topic. However, the rights of Palestinians, minorities and identity groups were considered to be fragile. Over time, I learned that the rights of people in poverty, of workers, and of the unemployed could no longer be taken for granted. The collective system was never as encompassing as it seemed, and it has since fragmented, disadvantaging many workers.

Kevin Kolben went to law school with a strong urge to make a difference in the field of labor. In the exceptional industrial regime of the United States, being unionized was itself a matter of minority identity and a field of struggle. Yet the United States was considered to be a world leader in diffusing principles of democracy and human rights across borders. Several years later, he found himself taking part in a human rights movement. Since 9/11, the challenges of security and national tendencies have reminded those at the heart of western democracy that human rights must be constantly nurtured, and that socioeconomic matters are intertwined with fundamental human liberties. Over the years, our social circumstances have brought us to Virginia Leary’s metaphor of parallel tracks, and since then we’ve been hop-scotching together from one track to the other.

For both of us, the study of labor law is no longer about defending rigid work routines and lifelong tenure, both of which were governed by detailed collective agreements. Both of us read the literature on the East/West and North/South divides, patterns of migration, and global chains of production and care as matters that can no longer be relegated to the old conflicts of communism v. capitalism. The current discussion on varieties of capitalism is also informed by the important realization that civil liberties and social rights are intertwined. Protecting the insiders can no longer be accomplished by looting all the goods at the expense of the outsiders. To the extent that we research and teach those matters that concern us as human beings, the tracks can no longer be kept separate.

Kevin Kolben’s Article is important because he provides the details and examples that demonstrate how the tracks gradually meet. He also warns that fundamental differences remain. It seems to me, having taken the Article apart and looked at the stylized differences, that they are somewhat overstated. The practice of human rights probes the private sphere much more deeply today than in the past. The right to privacy, for example, is of concern to private interests just as much as it is to the state. Commercial interests in information have commodified personal experiences and made private information a matter that human rights must protect. While state censorship is still a matter of utmost concern, lack of access to commercial platforms of communications is currently a significant hurdle hampering the ability of minority groups and dissenting opinions to reach the broader audience. In this era of intense privatization, the rights to water, adequate subsistence and educational resources are matters that target the private and the public equally. Similarly, the assumption that labor is collective, whereas human rights are individual, is a stylized version of our past experiences. Individual rights in employment seek to empower individuals vis-à-vis employers and labor collectivities alike. In the human rights discourse, individuals are increasingly being seen not only as unencumbered selves, but as socially embedded humans, whose interests and goals cannot be separated from the many collective associations in which they take part. The right to human development is a prime example of integrating individual and communal futures. The distinction between rights of outcomes and rights of process can be similarly unpacked. The Maastricht guidelines on social rights hold that social rights (but, in fact, all rights) contain both dimensions within them.

Stylized differences of the type that is highlighted by Kolben are easy to deconstruct, but should not be undervalued. Rights of all kinds are not a sterile mode of legal argument. They carry historical baggage, common intuitions, and the scars of failure and prizes of victory. Kolben’s Article is an attempt not to neatly model a cost-benefit analysis, but to realistically confront the lost assumption of labor and human rights activists that any one single body of rights discourse can resolve debates, ensure results, establish just processes, and serve a well rounded promise of inclusion. Yet, what is the lesson of this observation? Are labor rights and human rights gradually converging into one, or do they remain distinct fields of praxis? Reading Kolben’s Article opens many possibilities. Let me try to suggest one.

Drawing on the wisdom of citizenship as ‘the right to have rights,’ the pooling together of labor rights and human rights can be conceptualized as the right to have power, and conversely—the power to assert and exercise rights. Recognizing the right to associate in a trade union aids in empowering workers. That is the paradigmatic example of the ‘right to have power.’ Being able to act in concert, whether as workers, minorities or other disempowered groups, is the power to assert rights. Acting together can take the form of collective organization at work, but also of mass demonstrations against censorship of dissenters, or consumers’ exchange of information on the labor and environmental practices of multinational corporations. Neither the power to assert rights (traditionally the domain of labor) nor the right to assert power (traditionally the domain of human rights) is currently exclusive to any one type of rights discourse. Moreover, power is not a monolithic term. It designates the power of one over another, the power of public and private agents to normalize perceptions and norms of conformance, but also the power of the many to succeed in acting together. Fighting power, obtaining power, realizing the strength of being together and challenging prevailing norms have become a common practice of scholars and activists who are engaged with different types of rights. The gradual merging of labor rights and human rights is therefore the product of realizing the benefits and limitations of old traditions that emphasized rights or power. The gradual convergence of the two fields provide a coherent scheme that suggests that whatever cause is being endorsed, the right to power and the power for rights are the essence of caring for the disempowered.

The meshing of human rights and labor rights puts many of us in mind of the telos that brought us into these fields of practice and research—to speak on behalf of and organize the disempowered. A history of mutual critique, elaborate deconstruction of each side, and phases of outright animosity, has gradually given way to the fundamental shared empathy for those situated by society in the margins, and acceptance that rights discourses are a strategic legal tool and not an algorithm for just solutions. Human rights and labor rights are gradually becoming indistinct sets of the rights of the disempowered. This may be a naïve portrayal of the complexity Kolben aptly lays out. It clearly does not erase intrinsic conflicts within the discourses of rights and power, but I believe that Kolben’s Article is an important step towards accepting that the tracks must meet.

Labor Rights as Human Rights?

by Kevin Kolben

[Kevin Kolben is an Assistant Professor at Rutgers Business School]

This Article argues that the move to human rights discourse and international legal institutions by labor scholars and labor movements, particularly American scholars and movements, deserves more reflection, debate, and perhaps reconsideration.

Its thesis is grounded primarily in an intuition borne of personal experience. After graduating from college, I worked for several years as a labor organizer for several American unions. When I later entered law school, my attentions turned to transnational labor issues and I spent my summers with labor rights NGOs in India and Cambodia. Then upon graduation, I joined a well-known human rights organization, which at the time was called the Lawyers Committee for Human Rights (LCHR), and which has since changed its name to Human Rights First (HRF).

HRF’s entry into labor issues was representative of what I argue is a general convergence of human rights and labor rights movements and discourse. First, human rights groups such as HRF, Amnesty International, and Human Rights Watch are increasingly entering the realm of labor rights, particularly (although not exclusively) in the international sphere, where they perhaps have a comparative advantage. Second, there has at the same time been an increase in the number of non-union organizations, such as the International Labor Rights Forum, the Workers Rights Consortium, and the Fair Labor Association to name but a few U.S. examples, that address labor issues using human rights tools and language.

The third example of convergence, and the one that forms the main subject of the Article, is the adoption by labor unions of human rights discourse, institutions, and methods to support their primarily domestic labor agendas. Their aim is to advance the formula that “labor rights are human rights.” Many academic commentators have been major advocates of such an approach, seeking to bring international human rights law to bear on the United States in an effort to change its legal regime and create stronger protections for freedom of association and collective bargaining rights.

The deployment by the U.S. labor movement of human rights discourse is thus a highly pragmatic strategy to reverse the declines in union membership, and to bolster its intellectual and political support. By aggressively promoting the notion that labor rights are human rights, labor unions and labor rights groups have attempted to take advantage of the hegemonic status of human rights discourse to achieve several goals: First, to reform U.S. labor law, particularly in the area of freedom of association; second, to effectively target multinational corporations that are susceptible to accusations of being human rights abusers; third, to bolster public support for labor campaigns and to help encourage grassroots organizing through legitimizing labor rights as fundamental human rights issue; and finally, to address labor rights violations in global supply chains.

Yet while there are compelling strategic reasons to deploy human rights discourse, methods, and institutions towards labor issues, I believe that it is vitally important to parse the ways in which labor rights and labor rights movements have properties and normative commitments that differ from those of the broader corpus of human rights law and human rights movements, and to ask how these differences could be problematic.

The first set of differences is more conceptual in nature. The first important difference is that while labor rights primarily affect private actors, human rights primarily affect states. That is, labor rights require the entry of the state to intervene in the private sphere in a way that the bulk of human rights do not. Second, the key labor rights that are of concern to U.S. labor unions and labor movements—freedom of association and collective bargaining—are collective in nature, emphasizing solidarity over individualism. Human rights, however, by and large privilege the individual as the central unit of analysis. Third, human rights, specifically social and economic rights, tend to focus on guaranteeing the provision of basic materials goods to individuals. I call this a “rights as outcomes” approach. Freedom of association and collective bargaining rights, however, tend to emphasize processes, and I refer to them as “mobilization rights.” That is, there is something central in the core of labor rights thinking about worker agency and democratic participation in the workplace. They say something central about workplace power and economic ordering that human rights tend not to.

In addition to these conceptual differences, there are vitally important institutional, cultural, and political differences between human and labor rights movements, and between the people who constitute them. One difference is in the importance of law in social change. While law is highly privileged and is the central mechanisms of change for human rights movements (hence the number of human rights scholars and clinical teachers in top law schools), law for labor movements is secondary—an instrument to help facilitate grassroots action.

Second, labor movements tend to understand history and social change as results of collective action. Human rights movements, on the other hand, tend to privilege individuals as agents of social change—very often middle class and educated human rights activists like themselves.

This reflects a third difference, which is that human rights movements tend to approach labor issues from a philanthropic perspective—”helping those in a less privileged position.” Labor movements tend to conceptualize the solution to labor issues as facilitating worker agency.

Fourth, all of these differences reflect a very material difference between the composition of these two movements, which might not be determinative, but is at least informative. Labor movements and their professional staff tend to be composed and led largely, although certainly not entirely, by rank and file staff. Human rights movements, on the other hand, tend to be staffed and led by elites who often come from financially and educationally privileged backgrounds. Indeed, it is very difficult to get a job at the human rights organizations without having graduated from an elite university and, often, coming from independent wealth to subsidize your relatively low pay.

All these foregoing points are related, I believe, to the final cleavage, which is the difference in emphasis that human rights movements and human rights activists tend to place on freedom of association and collective bargaining rights, at least compared to labor movements. While there are notable exceptions to this, such as in the seminal reports of human rights watch, my own experience reflected a basic discomfort among human rights organizations with trade unions, and more generally with the concept of workplace democracy or industrial citizenship.

Despite these cleavages and differences, which I discuss more expansively in the Article, my major point is not to boldly claim that “labor rights are not human rights,” which is not particularly enlightening or helpful. Rather, I wish to emphasize that despite the strategic appeal for labor scholars and activists in making labor rights and human rights synonymous, there are in fact important conceptual and practical differences that need to be highlighted and recognized in order to better understand a) the differences and similarities between these two discourses and movements, and b) the pitfalls that might lie ahead.

A Response to Geoffrey Corn

by Sean Watts

Thank you to Professor Corn for his exceptionally thoughtful response to the article. His observations illustrate vividly, and persuasively, the apparent choices undergirding the traditional approach my Article critiques. I’ll reply briefly to some of his comments and conclude by highlighting what I perceive to be larger issues in the law of war that our dialogue might provoke.

Professor Corn casts application of the traditional four combatant criteria to CNA participants as a presumption, bringing with it the attendant benefits of clarity and predictability. His Miranda analogy suggests that law of war application in the context of CNA reflects a weighing of costs and benefits parallel to that produced by decades of experience in U.S. criminal procedure. Reflection on his parallel rekindled two thoughts that both inspired and informed the article. First, my research did not reveal evidence of the type of state deliberation, debate, or dialogue that inspired adoption of the Miranda presumption. As an international lawyer with strong sovereigntist sympathies, I was especially eager to find such evidence. It quickly became apparent, however, that application of the combatant criteria to CNA merely represents a reflexive or rote application of the only existing positive legal framework. It is in this regard that the extant approach might actually evince a doubly empty formalism—one of both procedure and substance, although we appear to disagree on the latter.

Second, and on the point of the latter, while I think he’s correct to highlight and defend the benefits of legal presumptions, I wonder whether the traditional combatant qualification presumption adequately accounts for its costs. The Article concludes with what I regard to be one of the law of war’s great cautionary tales: Admiral Doenitz’s conviction at Nuremberg for violating war rules universally discredited and regarded as out-of-touch. The Doenitz conviction illustrates the laws of war’s acute susceptibility to irrelevance as well as the extent to which it relies upon its end users’ trust that it accounts for the realities they face in combat. As Professor Corn notes, I do not advocate abandoning the traditional combatant criteria wholesale. However, the criteria have enjoyed their relevance, longevity, and perhaps their presumptive application, precisely because they have, for so long, actually reflected both States’ will and accounted for battlefield realities. My sense is that, in CNA, the criteria cannot operate long without provoking harmful distrust of the law’s efficacy. The Article set out to highlight what I perceived to be a threatening dissonance between that law and the realities of a rapidly changing and increasingly relevant realm of combat.

It seems our discussion reveals potential normative and theoretical points about the evolution of the law of war as well. Professor Corn and I are perhaps like-minded in our assumptions about what constitute valid sources of law and worthwhile norms. However, his observation that some combatants’ exposure to hostilities may be out of proportion to their participation calls to mind schools of thought that take greater account of individuals’ interests, combatant and civilian, in the formation of the law of war than perhaps my own sovereigntist view does. Additionally, competing international law compliance theories might shed additional light or cast doubt on the viability and desirability of the article’s proposal. Although compliance theory is well integrated into jus ad bellum scholarship, I note less thorough treatment from jus in bello work. I wonder whether a better developed in bello compliance theory would enrich our discussion of the costs and benefits of presumptive application of existing law to emerging forms of warfare?

A Response to Sean Watts by Geoffrey Corn

by Geoffrey Corn

[Geoffrey Corn is an Associate Professor at South Texas College of Law]

Let me begin by extending my compliments to Prof. Watts for his exceptionally well-written article, and my thanks for his suggestion that I provide comment. I am also grateful to my friends at Opinio Juris for extending this opportunity to me—it is nice to be back!

CNA obviously represents one of the most complicated intersections between the evolution of military operations in the efficacy of the law of war regulatory norms. Prof. Watts carefully and comprehensively explains in his Article why the evolution of CNA infrastructure and architecture increasingly calls into question the underlying logic that animates the existing law of war framework for determining who may lawfully participate in hostilities associated with an armed conflict. In response to this evolution, Prof. Watts proposes a reassessment of this framework that would abandon the existing rules that limit participation in hostilities to members of the armed forces. Instead, he asserts that for purposes of CNA operations, the relationship between the operator and state authority should be the focal point of legitimate participation.

Prof. Watts makes a compelling case in support of his assertion that the traditional four element test for determining lawful combatant status (carry arms openly; wear a fixed distinctive emblem recognizable at a distance; operate under responsible command; and comply with the law of war) is functionally inapposite to CNA operations. This provides the foundation for what he suggests is a more logical focus to determine the permissibility of employing civilians as CNA operatives: relationship to state authority. According to Professor Watts, this revised focus would produce a more logical and credible criteria for the regulation of CNA operations. Ultimately, he concludes that because the traditional “combatant” qualification criteria—developed in large measure to enhance the ability of combatants to distinguish participants in hostilities from the civilian population—provides no meaningful regulatory benefit for CNA operations conducted “over the horizon” where the initiation of effect will almost inevitably be geographically attenuated from the impact of the effect, restricting participation in CNA operations is nothing more than empty formalism.

In essence what Prof. Watts has done is to expose an area of over-breath inherent in the regulatory regime of the law of war. The regime is premised on a system of group affiliations, with accordant consequences flowing from these affiliations. Combatants have a right to participate in hostilities, and as a consequence are presumed to be hostile and therefore subject to attack based solely on a status determination. That presumption is rebutted only when they are no longer capable of acting pursuant to the will of their group. Civilians are not permitted to participate in hostilities, and as a consequence benefit from a presumptive immunity from attack. That presumption is also rebuttable, but the burden is placed on the combatant to determine whether the individual conduct of a civilian justifies the loss of that immunity.

It is, of course, difficult to dispute that in the interest of providing operational certainty or clarity the law subjects members of the Armed Forces to an overbroad risk of harm and in the view of many provides civilians with an equally overbroad scope of immunity. This over-breath is clearly intended to mitigate the risk to civilians while at the same time to facilitate the ability of Armed Forces to bring their opponents to submission. Nonetheless, the reality that many members of the Armed Forces pose an insignificant or even nonexistent actual threat to their enemies, while many civilians engage in activities that could easily be regarded as even more threatening to the armed forces, reveals that the interest in establishing bright line categorizations based on the general assumption that members of the Armed Forces pose a threat while civilians do not, has led states to accept the consequences of this over-breath.

Presumptions, however, serve an important purpose: clarity and predictability. They also create an almost inevitable consequence of factual over-breath and under-inclusiveness. The classic illustration of this reality is the Miranda warnings requirement that has become perhaps the most widely known legal presumption in our society. It was clear when the Supreme Court created the presumption that a statement made during custodial interrogation was involuntary, the Court recognized the risk of over-breath. Nonetheless, the Court accepted that risk when it held that whether a suspect in fact understood her rights without a warning, or whether a suspect in fact did not fully understand them after a warning and waiver, would be irrelevant in future assessment of whether an individual’s response to custodial interrogation was voluntary. The reason for this seemed clear: the Court was willing to tolerate this inevitable over-breath and under-inclusiveness on the factual fringe in exchange for the far more important benefit the presumption would produce in the vast majority of cases.

I certainly appreciate the logical rationale of the proposal Professor Watts offers. However, I am not convinced that modifying the bright lines produced by the presumptions of the law of war in order to address the factual over-breath at the fringe is worth the cost of opening the door to altering the group based presumptions that define who may participate in hostilities. In my view, his argument is analogous to an argument that a police officer or a district attorney need not be advised of Miranda rights prior to custodial interrogation because doing so is really just adherence to empty formalism. Factually, this is undoubtedly true—such suspects probably know their rights better than most defendants who are advised of them. Nonetheless, I believe that in situations where the over-breath of such presumptions produces factual dissonance, the critical question is whether the value of complying with the presumption is more than mere formalism, but instead is a means of protecting the regulatory presumption to dilution.

I question whether Prof. Watts has provided an answer to that question. It strikes me that the many academic and military proponents of applying the traditional combatant/civilian dichotomy to CNA operatives—a position Prof. Watts discusses and challenges in his Article—are likely motivated by an analogous willingness to accept the risk of over-breath in order to achieve the advantage of clarity. The ultimate question that I believe must be asked before states discard what Prof. Watts characterizes as empty formalism in favor of his newly proposed state association test is how a simultaneous acknowledgment that the functions performed by civilian CNA operatives are indeed combatant functions is how deviation from the traditional presumptions will impact the evolution of the law in other areas.

To his credit, Prof. Watts points out that it is the attenuation from the traditional battlefield that in large measure justifies deviation from the traditional combatant civilian dichotomy and that his proposal should not be viewed as a general condemnation of that tradition. Nonetheless, I believe his proposal will beg the question: if state association should be the singular focus for determining who can engage in CNA operations when the operative is unlikely to be observed by the enemy and therefore will not implicate the principle of distinction, why shouldn’t that be the focus for determining who should engage in other activities associated with the infliction of kinetic and non-kinetic harm on an opponent so long as the operative is not in immediate proximity to the enemy? For example, how likely is it that an enemy will observe who is flying a bomber? So long as the bomber itself is distinguished from civilian aircraft, the logic applied to CNA operatives should extend to the bomber pilot? This is the door I think it might be wise to keep closed.

Ultimately however, I do believe Prof. Watts has added tremendous value to the discourse on the issue of CNA operations, and that his emphasis on the link between these operatives and state authority will bolster the view of many experts in the field that the potential consequences of CNA operations renders it imperative that states ensure a regulatory and disciplinary framework is applicable to individuals who engage in those operations. I, for one, am not ready to concede that it is a mere act of formalism to require that these operatives be members of the Armed Forces. However, by challenging convention—both literally and figuratively—Prof. Watts will force proponents of this position to consider not only the potential flaws in their positions, but also whether the benefit that might derive from adopting this proposal could ultimately outweigh the accordant risk.

Combatant Status and Computer Network Attack

by Sean Watts

[Sean Watts is an Assistant Professor at Creighton University Law School]

A stunningly prescient, yet unfortunately anonymously authored, piece in the 1921 British Yearbook of International Law, argued that the application of science to warfare would inevitably lead to more destructive and intolerable forms of war. From this gloomy premise, the author concluded that efforts to develop laws of war were misplaced and would ultimately discredit international law, which could never keep up with the pace of invention. Although the author wrote nearly a century ago, and conjured hydroplanes and aerial bombardment as he wrote, his concerns are echoed in current law of war scholarship examining innovations in warfare.

Alongside transnational terrorist threats, the national security implications of computer network attacks (CNA) have prompted major adjustments to states’ defense strategies. A growing number of states now recognize cyberspace as a realm of combat operations equivalent in importance to land, sea and space, with many now capable of launching offensive CNA. My Article examines the question of combatant status in such CNA—specifically, who, under the existing law of war, may lawfully participate in CNA? Existing accounts evaluate combatant status in CNA under traditional criteria applicable to kinetic and line-of-sight warfare. I argue such approaches are outmoded and induce states to engage in practices that amount to no more than empty formalism. With historical, textual, and normative analysis, I argue that state sanction or imprimatur is an appropriate standard for evaluating combatant status in CNA. The analytical framework proposed not only aligns with existing law and emerging state practice, but may also resolve the question of status in other remote combat engagements.

Thanks to Opinio Juris for hosting this forum and also to the Virginia Journal of International Law (VJIL), whom I’d like to congratulate on the publication of their 50th Anniversary Volume. I’m honored that Professor Geoff Corn, a longtime mentor, has agreed to comment on the article—I look forward to his thoughts and those of Opinio Juris readers.

Virginia Journal of International Law, Vol. 50-2: Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles and an essay recently published by VJIL in Vol. 50:2, available here.

Today, Sean Watts, Assistant Professor, Creighton University Law School, will discuss his Article Combatant Status and Computer Network Attack. Professor Watts’s Article examines the critical question of combatant status in computer network attacks. Noting that few transformations in war rival the impact of computers and information networks on the conduct of hostilities, Professor Watts draws our attention to government-wide efforts to develop offensive capabilities—arsenals even—that include personnel organized and trained to launch offensive computer network attacks. In this environment, Professor Watts argues, an important question under the existing law of war is not simply against whom such attacks may be executed, but by whom. Noting that existing scholarship evaluates combatant status in computer network attacks under traditional criteria applicable to kinetic and line-of-sight warfare, Professor Watts argues that rote application of the Geneva Conventions to staffing of computer network attacks is outmoded and steers state practice into empty formalism. Professor Watts contends that computer network attack staffing should, instead, focus only on one of the Conventions’ enumerated combatant status criteria: state affiliation. Professor Watts concludes that an analytical framework based on state affiliation preserves the spirit and intent of the traditional criteria of combatant status, charting a course responsive to both textual and normative considerations.

Professor Geoffrey Corn of South Texas College of Law will serve as respondent.

On Tuesday, Kevin Kolben, Assistant Professor, Rutgers Business School, will discuss his Article Labor Rights as Human Rights?. In his Article, Professor Kolben argues that the recent turn to human rights discourse by labor advocates and labor law scholars, particularly in the United States, should be carefully analyzed and potentially rethought. Professor Kolben explores how a large and growing number of labor law and industrial relations scholars have argued that labor rights ought to be understood and conceptualized as fundamental human rights. Professor Kolben then discusses a parallel movement in which a growing number of labor rights organizations have begun to deploy human rights discourse and methods, while, at the same time, some international human rights scholars and organizations have also begun to direct some of their attention to questions of labor rights. Professor Kolben contends that there are salient differences between labor rights and human rights, not only in how these rights operate conceptually, but also in how these rights are actualized by their respective movements. Professor Kolben concludes that the strategies, politics, culture, and ideologies that inform human rights and much of the U.S. human rights establishment are quite at odds with those of labor rights movements, and a hard human rights turn by labor rights advocates risks eviscerating the fundamental commitments to economic justice and worker democracy in which the labor rights movement is grounded.

Professor Guy Mundlak of Tel Aviv University Buchmann School of Law will serve as respondent.

On Wednesday, Professor David H. Moore, Professor, J. Reuben Clark Law School, Brigham Young University, will discuss his Essay Medellín, the Alien Tort Statute, and the Domestic Status of International Law. Professor Moore’s Essay focuses on the import of the U.S. Supreme Court’s recent landmark decision in Medellín v. Texas, in which the Court addressed the domestic status of treaties in determining whether judgments of the International Court of Justice are judicially enforceable federal law. Although commentators have begun to sort out what the decision means for treaties in domestic law, Professor Moore argues that Medellín’s import reaches further than much of the literature has acknowledged. Professor Moore describes how Medellín narrows prospects for both treaty- and customary international law-based claims under the Alien Tort Statute. More significantly, Professor Moore argues that Medellín manifests the same separation of powers perspective as that reflected in the Court’s 2004 decision in Sosa v. Alvarez-Machain, thus supporting the “revisionist view” in the debate over the domestic status of customary international law. Professor Moore concludes that Medellín evidences the development of a uniform doctrine governing the status of both treaties and customary international law in the U.S. legal system—a doctrine under which the intent of the political branches, complemented by considerations of specificity, mutuality, practical consequences, foreign affairs effects, and alternative means of enforcement, informs the domestic legal status of both sources of international law.

On Thursday, Daniel Abebe and Jonathan S. Masur, Assistant Professors of Law, University of Chicago Law School, will discuss their Article International Agreements, Internal Heterogeneity, and Climate Change: The “Two Chinas” Problem. Professors Abebe and Masur argue that the current scholarship on global agreements to control climate change—specifically proposals regarding China’s participation in a global climate change agreement—suffer from an important analytical error. Acknowledging the broad consensus that no agreement to control climate change can succeed without China’s participation, Professors Abebe and Masur nevertheless argue that the existing literature fails to understand both the critical regional heterogeneity within China and the Chinese Communist Party’s complicated internal structure. Professors Abebe and Masur contend that it is almost a misnomer to speak of a single “China.” Rather, they describe “Two Chinas”: prosperous Eastern China and developing Western China. And it is the presence of these Two Chinas, they contend, that greatly complicates any attempt to negotiate a meaningful international agreement on carbon emissions. Professors Abebe and Masur argue that the failure to consider China’s internal domestic challenges is an error carrying with it serious analytical consequences, including overly optimistic projections about China’s incentives to fight climate change. Professors Masur and Abebe explore the impact of internal political and economic dynamics on China’s interest in joining any such global agreement, concluding that it will be extremely difficult to reach a meaningful climate change accord in the immediate future.

We encourage you to join in the discussion online this week by sharing your questions and thoughts in the comment boxes below each posting. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.