Archive for
April, 2010

Dutch Navy Re-Take Ship Captured by Pirates

by Julian Ku

Fascinating video  of a Dutch Navy strike team recapturing a German vessel that had been captured by Somali pirates. It shows just how dangerous, expensive, and difficult it is to combat piracy.  It looks cool, but frankly, the Somali pirates have the Dutch and everyone else outnumbered.  There can’t be that many of these kinds of strike teams and there are a lot of Somali pirates.  And the pirates get to head off to the Netherlands for trial, a place much nicer than where they came from.  (UPDATE: See this FP essay which makes this point very persuasively). Still, kudos to the Dutch Navy (actually, I assume it is the Dutch Marines) for doing their part in this Sisyphean battle.

Lite Blogging

by Kenneth Anderson

I’ve been lite blogging and will be for a bit longer, due to travel and some deadline pressures.  I will try to get something up about the latest drone hearing in Congress, the ACLU’s letter, and that stuff.  Let us not neglect the EU debt crisis, either.  Kudos to Northwestern University law school’s Searle Center, for the conference I am currently attending on ATS issues – great conference, great papers, great folks.  But most important, this meeting has finally given Roger and me the chance to meet in person!  During all this time, Roger and I have never actually met.  I can report to our faithful readers that Professor Alford is as gracious, charming and intellectually acute as everything you have read from him on this blog attests.

Sorting Through the New Mil Coms Manual

by Deborah Pearlstein

Still catching up on yesterday’s news that DOD released the much-anticipated 2010 edition of the Manual for Military Commissions (MMC). The Manual is here.

Among its many provisions of interest (I’m still skimming) are the rules set forth for prosecutions for the commission crime of material support for terrorism – a crime I and others have argued does not exist as a war crime under international law. (None of the major international criminal tribunals have included it as an offense, for example; neither is there any evidence of its existence as a criminal offense under customary international law.) Given this, the singular international law defense for the inclusion of the “material support” offense in the 2009 version of the Military Commissions Act I’ve been able to imagine is the possibility that it would be used as some version of the expansive theory of vicarious contemplated at some level by the ICTY. (In my final international law class of the year, for example, I happened to teach Furundzija – a 1998 ICTY case finding that a soldier could be prosecuted under a vicarious liability theory for giving “practical assistance, encouragement, or moral support that had a substantial effect” on the perpetration of a war crime committed, provided that the soldier had the requisite intent. It’s debatable what intent was in fact required in that case, but it was either knowledge that one’s actions would assist perpetrator OR intent to facilitate the crime – hardly a meaningless difference.) One might have argued that the MCA offense of “material support” could mitigate the international law problems if deployed, against odds, in this way.

The MCA itself defines the offense as either (1) providing “material support” (a term it defines) “knowing or intending” that it will be used “in preparation for, or in carrying out, an act of terrorism,” or (2) intentionally providing material support to an international terrorist organization engaged in hostilities against the United States if he knows that organization engages in terrorism. By its terms, one might imagine option (1) was crafted to cover the bases in Furundzija; indeed “material support” under the statute doesn’t include something as vague as the “moral support” Furundzija recognized (in a rape case), so perhaps in this respect an intent-based a prosecution could survive. Option (2), on the other hand, seems less likely to survive Furundzija’s more exacting intent requirement. It requires intent only as to the provision of money to the organization; it doesn’t require that the supporter intend that the organization use the support to facilitate or carry out terrorism (only that the supporter have knowledge that the organization has ever engaged in such activities).

So does the MMC provide clarification or cure? In a word – no. It clarifies at least that the charging conduct must take place “in the context of and … associated with hostilities.” This seems a sine qua non for a war crimes charge – it’s not a war crime if there’s not a war – that wasn’t entirely clear by the terms of the statute itself. On the other hand, the MMC preserves knowledge as a potential basis for prosecution for material support for an act of terrorism, and preserves knowledge as the singular basis for prosecution for support to a terrorist organization. In other words, material support could still just be a knowledge-based offense. If Furundzija is in fact the model, and if Furundzija’s more exacting “intent to facilitate” standard applies, then no knowledge-based prosecution could survive. Seems like yet another of many potential issues as these cases are brought and appealed. In the meantime, I hope those international criminal law experts out there will tell me what I’m getting wrong.

Jose Alvarez Appointed Special Advisor on International Law to ICC Prosecutor

by Julian Ku

This seems like a nice, uncontroversial way to buttress the ICC Prosecutor’s Office:

ICC Prosecutor Luis Moreno-Ocampo today announced the appointment of Professor Jose Alvarez as his Office’s Special Advisor on International Law. “Professor Alvarez is one of the leading academics in international law,” said Prosecutor Moreno-Ocampo. “He has written extensively on the law-making powers of international organisations and on the ad hoc international war crimes tribunals for the former Yugoslavia and Rwanda.”

As Special Adviser to the Office of the Prosecutor (OTP), Professor Alvarez will focus on any public international law questions that arise in the course of the Prosecutor’s duties. This may include, for example, the relationship between the Security Council and the International Criminal Court.

Congrats, Jose!

Arizona Will Knuckle Under to Mexico, Not the Federal Courts

by Peter Spiro

Arizona’s already notorious anti-immigrant measure, enacted last week and making unauthorized presence in the U.S. a crime under state law, isn’t likely to last long.  But the courts may have nothing to do with its demise.  It’s the economic hit that Arizona is clearly going to take that will bring the state around, I suspect sooner rather than later.  Lost tourism and convention dollars will enlist powerful allies in-state for scaling back or repealing the law.  Opponents seem pretty well mobilized (Linda Greenhouse and San Francisco among them).

The more interesting — and constitutionally salient — source of this economic pressure will come from across the border.  Mexicans are incensed about S.B. 1070, and they seem willing to put their money where their mouths are.  The Mexican government has issued a travel advisory of the sort that will surely scare away casual vacation planners.  About a third of Arizona’s exports are to Mexico, to the tune of almost $5 billion.  One recent study counted almost 25 million annual tourist/shopping visits by Mexicans, generating $3.6 billion in income. That translates into jobs, jobs, jobs (30,000 of them) that will now be hearing a kind of giant sucking sound.  Human-rights sensitive travelers from other countries may well follow suit in boycotting the state.  Not exactly a blueprint for economic recovery.

This could prove the best example yet of targeted retaliation by a foreign country against a U.S. state, which in turn supplies a pretty good reason not to find the measure preempted by federal authority.  The exceptional preemption regime for immigration has been justified by its inherent foreign relations component, back to the Supreme Court’s eloquent 1875 decision in Chy Lung v. Freeman.  As with other activities posing a potential threat to foreign relations, the huge systemic downside risks — to the nation as a whole — of allowing individual states to muck up immigration policymaking justified their near-complete constitutional ouster.

But targeted retaliation cuts that exceptional preemption doctrine off at the knees.  In the old world, Mexico’s response would have been against the United States as a whole.  Today, it can be aimed at the offending jurisdiction, in such a way as to largely eliminate externalities that would otherwise distort state-level decisionmaking.  Arizona will shoulder the consequences of its (very bad) decisionmaking, not the rest of us.  My bet is that it will cave, even if the measure is sustained in the courts, in a way that sticks.

Congress and the ACLU Begin Pushback on the Legality of Targeted Killings

by Julian Ku

Our own Ken Anderson joined a number of other law profs, including Prof. David Glazier, in testimony today before the National Security and Foreign Affairs subcommittee of the U.S. House Committee on Oversight and Government Reform to discuss, what else, the legality of U.S. targeted killings policy. Wired has a nice report summarizing the testimony, and the issues are already familiar to the folks on this blog.  Meanwhile, the ACLU weighs in today with a tough public letter challenging President Obama’s targeted killings policy on legal grounds.  The ACLU’s analysis appears to concede that targeted killings may be used (subject to law of war limits) within recognized conflict zones.  But outside of those zones,

…the use of lethal force by the United States is strictly limited by international law and, at least in some circumstances, the Constitution. These laws permit lethal force to be used only as a last resort, and only to prevent imminent attacks that are likely to cause death or serious physical injury. According to news reports, the program you have authorized is based on “kill lists” to which names are added, sometimes for months at a time, after a secret internal process. Such a program of long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely imminent threats. Any such program is far more sweeping than the law allows and raises grave constitutional and human rights concerns.

The letter goes on to draw a distinction between detention of enemy combatants and targeted killing of them that I don’t find all that persuasive.  But taken together, the Congressional interest in these issues and the ACLU letter makes a cogent legal and policy case against targeted killings outside of Afghanistan and Iraq.  The letter may be the first sign that President Obama (and Clinton and Koh) will no longer be getting a pass on their war on terrorism policies.

One Big Wall Street Journal Lie

by Kevin Jon Heller

Whoops, spoke too soon about the WSJ‘s anti-ICC editorial.  It does indeed contain a lie — and its a doozy:

What’s more, no amount of reform of the founding treaty will change the ICC’s inherent flaw. The ICC is a child of the doctrine of “universal jurisdiction,” which holds that courts can adjudicate crimes committed anywhere in the world.

As anyone who has spent five minutes reading the Rome Statue knows, the Court is based on two forms of jurisdiction: territorial and active-nationality.  Both of which the U.S. uses and accepts that other states may use.  Proposals to base the ICC on universal jurisdiction were soundly rejected during the drafting of the Rome Statute.

Not that the Editorial Board of the WSJ cares.  In the absence of facts, lies suit them just fine.

The ICC Begins to Fade in Importance in Sudan

by Julian Ku

The reaction of key countries to the recent Sudan elections electing Sudan’s President al-Bashir are in.  The bottom line seems to be- the elections were deeply flawed, but not so much so that they should be denounced or set-aside.  In the meantime, start planning for the all important referendum on Southern Sudan’s independence, which will require Bashir’s cooperation.  This appears to be the view of the U.S. government, anyway, and it seems largely echoed by the EU.  Interestingly, neither the E.U. nor the U.S. seems to be emphasizing (or even mentioning) the fact that Sudan is continuing to defy its international obligations to turn over individuals demanded by the ICC, including its President.  The focus remains, as it should be, on preserving the delicate peace process in Sudan. But if the U.S. and E.U. do not demand compliance with the ICC, then it is clear that the ICC (at least in the near term) has no chance of completing its prosecutions in Sudan.

The WSJ Warns Against “Flirting” With the ICC

by Julian Ku

Adding to our already energetic discussion about the ICC and Kampala is the WSJ Editorial Board’s contribution today.  I share many of the editorial’s skeptical views of the ICC and I think even Kevin would not find any “lies” in this article.  Here is the crux of their critique, which I mostly share:

From the Balkans to East Timor to the Mideast, these pages have welcomed international action to stop atrocities. In select cases, such as the U.N. war crimes tribunal for the former Yugoslavia, we’ve backed ad hoc courts with a narrow mandate, limited life and proven commitment to fairness. The ICC meets none of those standards.

Moral grand-standing via indictments also isn’t the same as doing something about crimes against humanity. The indictment of Sudan’s butcher of Darfur, President Omar Hassan al-Bashir, made him harder to dislodge, and absent serious intervention, it has probably prolonged the suffering there.

Only two quibbles: 1) Why is the Yugoslavia tribunal more likely to be fair than the ICC? 2) I also don’t quite agree with the lead: “Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint.” I don’t see this happening anytime in this president’s term (either his first or second). And I’m not sure that non-cooperation is a viable or desirable strategy.  I think the Administration’s approach is about right, assuming they end up close to the CFR Report’s recommendations.

Fred Hiatt Also Chooses the Post’s Photos?

by Kevin Jon Heller

Too funny not to post (h/t, Gawker):

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(The man in the photo, for those who don’t know, is Malcolm X, not Obama.)

Quote of the Day — The IMT on the Use of Armed Force in Self-Defense

by Kevin Jon Heller

From the Judgment:

It was further argued that Germany alone could decide, in accordance with the reservations made by many of the Signatory Powers at the time of the conclusion of the Briand-Kellogg Pact, whether preventive action was a necessity, and that in making her decision final judgment was conclusive. But whether action taken under the claim of seIf-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.

Smart people, those Allied judges.

Howard on the Libel Suit Against Joseph Weiler

by Kevin Jon Heller

On a non-aggression note, Jennifer Howard has an article in yesterday’s Chronicle of Higher Education about Karin Calvo-Goller’s baseless criminal-libel suit in France against NYU’s Joseph Weiler.  It’s an excellent piece — and not just because she is kind enough to quote me.  Here’s a snippet:

If you’re an author confronted with a negative book review, you have several options. You can write an angry letter to the editor. You can complain to friends and family about the reviewer’s lack of discernment. You can decide that bad publicity is better than no publicity at all and let the book speak for itself (often the wisest course, in my experience as a book-review editor).

What you don’t do is sue the editor of the newspaper or journal that published the review.

So it came as a shock to journal editors to learn that one of their own, Joseph H.H. Weiler, editor of the European Journal of International Law, would face a criminal-libel lawsuit in France over a review that he published on a Web site that he also edits, one that posts reviews of scholarly books.

Although the case, set for trial in June, is so unusual that it seems unlikely to set a precedent that would seriously dampen academic reviewers’ freedom of critique, that possibility still has editors worried. And it has left observers scratching their heads over why a scholar would choose to dispute a review in court and not in the usual arenas of academic debate.

The article is only free to non-subscribers for another four days.  So read it while it’s hot!

Dear Colleagues: We’d Like to Share Some Lies with You About the ICC

by Kevin Jon Heller

My UN Dispatch friend Mark Leon Goldberg notes today that a group of Representatives are circulating a “Dear Colleague” letter urging their colleagues to support a resolution “opposing the United States joining the Rome Statute or participating in the upcoming review conference.” Reading the letter is an infuriating experience, not only for its ridiculously bad grammar — how does one “join” a statute? — but also because of its bald-faced lies about the ICC. Here is the text of the letter:

Protect U.S. Troops and American Sovereignty from the International Criminal Court

Cosponsor H.Con.Res. 265, a Resolution Raising Concerns

Current Cosponsors: Ros-Lehtinen, L. Smith, Garrett, McCotter, Lamborn, W. Jones, Burton, Franks, Chaffetz, Latta, Bachmann, Pitts, Akin, Kingston, Gohmert, Conaway, S. King, McClintock, Gingrey, Burgess, Manzullo, Marchant, H.Brown, Wittman, Jordan, Poe, Posey, Souder

Dear Colleague,

We urge you to join us in expressing the sense of the Congress that the United States should neither become a signatory to the Rome Statute on the International Criminal Court nor attend the Review Conference of the Rome Statute in Kampala, Uganda in May 2010.

That American troops could face criminal indictments in a foreign court for actions taken in the defense of U.S. national security interests is abhorrent. Yet in September 2009 the Office of the Prosecutor for the International Criminal Court announced that it was investigating accusations of war crimes and crimes against humanity allegedly committed by U.S. and NATO forces fighting in Afghanistan. This presumably would implicate members of both the Bush and Obama Administration.  As such, today we are closer than ever before to a reality where American soldiers, Marines, and other military personnel could be brought before an international tribunal, without any of their constitutional rights, to face criminal charges.

The United States must not become a party to the treaty that makes such charges possible—the Rome Statute on the International Criminal Court. But in August 2009 Secretary of State Hillary Clinton stated that it was a “great regret that we are not a signatory” to the Rome Statute.

A major step on the road towards U.S. membership in the ICC is mere months away. From May 31 to June 11 an international conference will be held in Kampala, Uganda to consider proposals for amendments to the Rome Statute.  The Administration’s plan to participate in the Review Conference is in error. Engagement will do nothing to remedy the major defects of the Rome Statute, including:

  • That the ICC claims the power to exercise authority and jurisdiction over the citizens of nations—including the United States—that have not ratified the Rome Statute;
  • That the Rome Statute seeks to prohibit the “crime of aggression,” an offense that will inevitably be manipulated for political purposes to the detriment of U.S. national security interests, as the U.S. is regularly accused of “aggression” in places such as Iraq and Afghanistan, and;
  • The Rome Statute would revoke rights guaranteed by the Constitution to American military personnel and U.S. government officials charged with crimes, including the right to a jury trial by one’s peers, protection from double jeopardy, the right to confront one’s accusers, and the right to a speedy trial.

To cosponsor H. Con. Res. 265, a resolution opposing the United States joining the Rome Statute or participating in the upcoming review conference, please contact Kristine Michalson in Congressman Lamborn’s office by emailing Kristine [dot] Michalson [at] mail [dot] house [dot] gov.


Doug Lamborn, Member of Congress
Thaddeus McCotter, Member of Congress
Scott Garrett, Member of Congress

In the words of the immortal Chris Rock, these people — which include those noted political theorists Steve King and Michele Bachmann — are just ign’ant.  Let’s start with the most obvious lies, concerning the Rome Statute’s “revocation” of constitutional rights.  The right of confrontation…

GATT/GATS and the General Exceptions Quandry

by Roger Alford

When I teach International Trade, one of my favorite parts of the class is the discussion of trade linkages. How does a state balance competing concerns such as labor, the environment, and human rights? Typically the WTO accommodates those concerns through the General Exceptions that permit a state to violate the WTO rules if doing so is, say, “necessary” to protect “human health or life.”

One of the more curious aspects of the WTO General Exceptions is the differences the WTO has established for trade in services versus trade in goods. The regime for trade in goods allows a state to violate WTO rules if the measure “relates to the conservation of exhaustible natural resources.” Not so for trade in services. Thus, a state could prohibit the trade in products that contain CFCs because they cause ozone depletion, an exhaustible resource. It could also prohibit the importation of shrimp caught without devices that exclude endangered sea turtles. But a state could not, say, easily impose limits on the landing rights of jumbo jets because they contribute to global warming. Nor could Chile easily prohibit the docking of cruise ships at Cape Horn because they drop high-sulfer “bunker” fuel in the Antarctic Ocean. Instead, Chile would have to meet the more stringent requirement of proving that such restrictions are “necessary” to protect human, animal, or plant life or health. It seems that when it comes to the environment and trade in services, all concerns about natural resources are derivative.

On the other hand, trade in services can be restricted in order to protect public order, but trade in goods cannot. (Trade in goods must somehow offend a more value-laden public morals exception). China could, for example, have an easier time restricting Internet services that disrupt public order–such as pro-democracy websites, but have a harder time justifying its ban on the importation …

Does South Korea Have the Right to Blockade North Korea?

by Julian Ku

What should South Korea do if it confirms the responsibility of North Korea for the sinking of a South Korean naval vessel?  This article quotes a Korean law professor offering three options:

Writing in JoongAng Daily, Kim Hyun-soo, professor of international law at Inha University, said Lee has three options if he wishes to avoid risking all-out war on the peninsula. He could demand concerted action by the UN security council; he could take his case to the international court of justice; or, failing that, he could impose a maritime blockade, as the US did against Cuba in 1962.

The first option seems no problem, except that it is hard to get the Security Council to do anything.  The second option is a problem since, well, North Korea has not accepted the compulsory jurisdiction of the ICJ.  The third option seems the most interesting, but it is also the most complicated one legally.  The Koreas are in a state of cease-fire.  But blockades, at least in theory, are not permitted under the U.N. Charter except when authorized by the Security Council (see U.N. Charter Art. 42). The 1962 U.S. “quarantine” of Cuba was carefully not called a blockade to avoid this legal problem.  I suppose South Korea could end the cease-fire, initiate hostilities, and institute the blockade as part of its right of self-defense.  Now that would be legally defensible, although it would probably start an all out (maybe even nuclear) war. So let’s hope they go with option 1.

An SOS for Cyberspace?

by Duncan Hollis

My colleague David Post and I have an op-ed in today’s National Law Journal.  In it, we challenge the sufficiency of existing responses to cyberattacks, whether in terms of pushing for heightened security, more criminal law enforcement or applying the laws of war (if applicable).  Criminal law (and the laws of war for that matter) depends on identifying and holding actors accountable for their actions.  Given attribution problems that give cyberattackers virtual anonymity, we argue that these methods cannot effectively respond to such attacks, let alone deter them.  So long as the Internet’s architecture preserves an attacker’s identity, we claim that the law will need to look to alternative deterrent and regulatory models for regulating threats without regulating who (or what) causes them.  To that end, we flag the use of the SOS to deal with threats to life and property on the high seas as a useful analogue.  The SOS works, not by regulating the cause of any harm (e.g., hurricanes, pirates, equipment failure), but by imposing a duty to assist on all in a position to help when they hear the SOS call.  In doing so, the SOS mitigates the threat, with the assistance provided often saving lives and protecting property.  We argue a duty to assist could have similar functions in cyberspace, mitigating the effects of cyberattacks even where we cannot identify (and thus regulate) the actual attacker(s).  Indeed, we believe that if the duty to assist actually does mitigate the harm from certain cyberattacks (i.e., by ensuring bandwidth is available to overcome directed denial of service attacks, or by cutting off the pathway of an attack) it might actually deter attackers from launching those attacks in the first place.  In such situations, attackers may come to recognize that the desired effect cannot be achieved and not bother to even try to attack.  Or, if the attacker is an entity that might actually fall under a duty to assist (e.g., a national government) it might think twice before attacking in the first place.  After all, why make a mess that you know you’ll have a public duty to remediate?  For more details, you can read our op-ed here.

The Disappointing — If Predictable — CFR Report on the ICC Review Conference

by Kevin Jon Heller

Julian beat me to the punch regarding the new Council on Foreign Relations report, From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference. Not surprisingly, I don’t share Julian’s enthusiasm for it.  On the contrary, I think it’s extremely disappointing, little more than a reiteration of the same tired talking points that the US has been pushing for the past decade.

The report is relatively short and worth reading in its entirety.  If you don’t have enough time, though, it can be reduced to the following three propositions:

[1] The US should have the right to unilaterally use military force whenever and wherever it wants.

[2] ICC jurisdiction over the crime of aggression would limit that right, so the Review Conference negotiations must be undermined.

[3] The US should avoid being seen as openly undermining the Review Conference negotiations, because that will make undermining them more difficult.

Some specific thoughts on the report:

After World War II, the United States led Allied efforts to prosecute top German and Japanese officials for atrocity crimes and crimes against the peace (aggression), overcoming British and Soviet arguments for summary execution of the enemy leadership.

This is literally true — but it is important to remember that Henry Morgenthau, the Treasury Secretary, urged Roosevelt to support the summary-execution option.  It’s a minor point, but the statement above has an obvious narrative purpose: namely, to paint the US as the good guy in international criminal justice, one whose objections to the ICC and the crime of aggression the international community ignores at its peril.  The reality, of course, is far messier.

The General Assembly resolution contains a nonexhaustive list of acts that may constitute aggression, while leaving open the possibility that additional acts may constitute aggression as determined by the Security Council. The resolution represented a political compromise, and many international law experts believe this definition is too vague for the purposes of imposing individual criminal liability.

This is a bold claim — and one for which the report doesn’t bother to provide even a single citation.  Who are these “many” unnamed international-law experts?  They certainly aren’t the literally dozens of experts who have participated in the Special Working Group’s negotiations.  My guess is that the author is thinking of one scholar in particular: Michael Glennon, who — not surprisingly — is on the report’s advisory board.  The same Michael Glennon whose argument that the SWG’s proposed definition of aggression is unacceptably vague did not mention, much less address, the proposed elements of the crime.  And the same Michael Glennon who believes that customary international law does not criminalize aggression, a claim that indicates just how extreme (read: wrong) his views really are…

President Obama Breaks His Word to Armenians, Won’t Use the “G-Word”

by Julian Ku

This is not really a big deal, but it is still annoying when President Obama (or any president) flagrantly breaks his campaign promises with respect to foreign policy matters that are completely within their executive discretion.  Today, in his commemoration of the Armenians who died in the 1916 expulsion from Turkey, President Obama carefully avoided the use of the word “genocide” to describe those killings. This is probably the right thing to do since, as a legal matter and as a diplomatic matter, especially given the legal standard that the ICJ has erected to determine intent. On the other hand, the President made a crystal clear promise to recognize the Armenian killings as a “genocide” that he has flagrantly broken. From his campaign website.

As a U.S. Senator, I have stood with the Armenian American community in calling for Turkey’s acknowledgement of the Armenian Genocide. Two years ago, I criticized the Secretary of State for the firing of U.S. Ambassador to Armenia, John Evans, after he properly used the term “genocide” to describe Turkey’s slaughter of thousands of Armenians starting in 1915. I shared with Secretary Rice my firmly held conviction that the Armenian Genocide is not an allegation, a personal opinion, or a point of view, but rather a widely documented fact supported by an overwhelming body of historical evidence. The facts are undeniable. An official policy that calls on diplomats to distort the historical facts is an untenable policy. As a senator, I strongly support passage of the Armenian Genocide Resolution (H.Res.106 and S.Res.106), and as President I will recognize the Armenian Genocide.

In fact, he has been lobbying hard to prevent the House from using the “G-word” and is clearly never intending to use it himself. Look, I get that this is a really hard diplomatic issue and that the prudent thing to do is to avoid the “G-word”.  But could candidates please refrain from making promises of this sort that they have no intention of keeping?

Deposing the Pope

by Julian Ku

I still think there is no chance of this happening, but Christopher Hitchens offers this narrative of how and why he is pushing for legal action against the Vatican, or maybe at least a deposition of the Pope himself.

I telephoned a distinguished human-rights counsel in London, Geoffrey Robertson, and asked him if the law was powerless to intervene. Not at all, was his calm reply. If His Holiness tries to travel outside his own territory—as he proposes to travel to Britain in the fall—there is no more reason for him to feel safe than there was for the once magnificently uniformed General Pinochet, who had passed a Chilean law that he thought would guarantee his own immunity, but who was visited by British bobbies all the same. As I am writing this, plaintiffs are coming forward and strategies being readied (on both sides, since the Vatican itself scents the danger). In Kentucky, a suit is before the courts seeking the testimony of the pope himself. In Britain, it is being proposed that any one of the numberless possible plaintiffs might privately serve the pope with a writ if he shows his face. Also being considered are two international approaches, one to the European Court of Human Rights and another to the International Criminal Court. The ICC—which has already this year overruled immunity and indicted the gruesome president of Sudan—can be asked to rule on “crimes against humanity”; a legal definition that happens to include any consistent pattern of rape, or exploitation of children, that has been endorsed by any government.

Obviously, there is a lot of technical legal analysis Hitchens is missing here. Pinochet was  former head of state, for instance, sought under Spain’s universal jurisdiction law, not the U.K.’s own laws.  And how would the ECtHR get involved?

But the core of his argument is that the Vatican and the Pope do not deserve immunity.  I just don’t see how he can get around this problem since the UK and the US both recognize the immunity of the Vatican and UK and U.S. courts will almost certainly enforce this recognition.

Can Japan Declare Victory in the Whale Wars?

by Julian Ku

The International Whaling Commission’s proposed compromise on the whaling dispute has been released (h/t Jurist). As I noted before, the proposed deal would bring all nations within the IWC framework, but explicitly permit commercial whaling for certain nations for at least the next 10 years. The numbers permitted under the proposal is a little murky, but it may include thousands of whales, including some whales that are considered endangered.  Predictably, the Greenpeace folks are opposed.  It is true that this is not exactly a whale-friendly compromise.  But Japan could, with relatively little cost, simply get out of the IWC and hunt even more. So the choice for whale-defenders is a tough one. But this compromise text looks promising.

The Emerging Consensus on U.S. Policy Toward the ICC: CFR Issues Report on Kampala

by Julian Ku

In many ways, it is more important to note the continuity between Obama and Bush administration policies than to dwell on their differences. Given the political antecedents of the two administrations, the areas where they have adopted the same policy is a sure-fire sign that there is broad consensus in the U.S. on a policy.  I think we are getting close to such a consensus with respect to U.S. policy toward the ICC.  Here are the likely areas of the emerging U.S. consensus (after the jump):

Replacing Stevens on Security

by Deborah Pearlstein

Cross-posted on Balkinization and Scotusblog

Since Justice Stevens announced his intention to retire, discussions about what his departure will mean for the Court have regularly noted his military service in World War II. The justice enlisted the day before the Japanese bombed Pearl Harbor (and has joked about how the enemy responded to the news immediately). There is little doubt that a Court without substantial military experience among its justices will be missing an important perspective on the unique role the U.S. military plays in American policy and society. Judges are ideally made wiser from their range of life experiences; a broader range of experience among the justices seems likely only to enhance the Court’s collective wisdom. In that respect alone, Justice Stevens’ absence from the Court will leave a gap.

But Justice Stevens’ national security jurisprudence reflects a very particular kind of wisdom, drawn not only from his military service, but from a lifetime of attention to the persuasiveness of executive reason. As illustrated in a series of thoughtful histories in recent years (see here, here or here), the young John Stevens was likewise informed by his service immediately after the war as a law clerk at the Court to Justice Wiley Rutledge, who himself had struggled with the questions of executive power, individual rights, and national security that the Court has faced repeatedly in the years since September 11. Over his relatively short tenure on the Court, Rutledge seemed quickly to regret his early deference to a powerful President Roosevelt during World War II. With the majority in Hirabayashi v. United States (upholding a military curfew on Japanese-Americans living in certain “military areas” in California) and Korematsu v. United States (upholding the exclusion of Japanese-Americans from designated zones), Rutledge had reluctantly accepted the military assertion of wartime necessity. But the positions Rutledge took in these cases did not sit easily. As Rutledge later wrote to a colleague, “I have had more anguish over [Hirabayashi] than any I have decided, save possibly one death case” that he had encountered in the court of appeals. Indeed, Rutledge had written separately in concurrence in Hirabayashi, to emphasize that the Court’s acceptance of the military’s necessity justification here did not mean that such reasoning would invariably succeed, or that all such reasoning was beyond the power of the courts to review.

By In re Yamashita (upholding the military commission trial of a Japanese general), issued the year before Justice Stevens took up work at the Court, Rutledge was writing in dissent, rejecting the Government’s position “that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military,” in favor of the view that the U.S. Constitution, statutes and treaties here – as elsewhere – apply. Exigencies could arise, Rutledge understood, but particularly where the Government response imposed a burden on individual rights, it was within the power of the courts to check the reasons for the response, in security matters as anywhere else. The capacity to evaluate reasons was not the Commander-in-Chief’s alone. Thus, when Justice Stevens took up the challenge to the legality of President Bush’s military commission system at Guantanamo Bay 60 years later in Hamdan v. Rumsfeld, it was not surprising that it was Rutledge’s dissent the justice invoked.

It is certainly possible writing from some remove to overstate the impact Rutledge’s evolving views in the 1940’s had on Justice Stevens’ thinking some 60 years later. Justice Stevens is, after all, also the author of Chevron v. Natural Resources Defense Council, the watershed administrative law decision typically understood to have cemented the importance of judicial deference to executive branch interpretations of statutory authority – a deference driven by the Court’s view of the Executive’s superior political accountability and expertise. Indeed, at first glance, it seems difficult to reconcile the Justice Stevens of Chevron – embracing judicial deference to the Executive – and the Justice Stevens of Hamdan – rejecting any notion of even modest deference to the Executive in interpreting the statutory Authorization for Use of Military Force and Uniform Code of Military Justice. One might argue the decisions are better read simply as a sign of the evolution of Justice Stevens’ own views during his long tenure on the bench.

This view seems to me to miss the value of what is in fact a rather consistent sensibility on the value of executive views. By the time Chevron came down, the Court had long recognized – as Justice Stevens reiterated in that decision – that executive views could help illuminate statutory meaning when the executive has special expertise in the face of a “regulatory scheme [that] is technical and complex,” when competing policy interests are at stake, and when it is clear the agency’s consideration of the matter had been “detailed and reasoned.” It was precisely the lack of such detail and reason in the President’s justification for pursuing military commissions at Guantanamo that troubled Justice Stevens in Hamdan. “Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case…. [T]he only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.” The Executive had presented no record or even detailed reason why it could not follow standard court martial procedures. Indeed, as briefing surrounding the case had made evident, the Executive had largely excluded from the design process those lawyers in the military who were actually expert in how one might conduct a military commission trial. Expertise and record evidence could be valuable indeed. Far less valuable was the mere assertion of Executive authority.

Justice Stevens’ familiarity with the military and the important demands of national security perhaps made it possible for him to see what many have not – that there is nothing so extraordinary about the field of foreign relations per se that absolves the Executive of all need to be put to particular reason and compelling proof. It seems unlikely that the justice who takes his place will have Justice Stevens’ breadth of life experience in this regard. We will be fortunate if he or she nonetheless shares his insight.

ICC Prosecutor Wants Security Council Action on Sudan

by Julian Ku

This sounds impressive, but somehow it feels like the ICC Prosecutor is going in circles on Sudan.

THE HAGUE, Netherlands — The International Criminal Court prosecutor wants judges to report Sudan to the U.N. Security Council for refusing to hand over a government minister and a militia leader accused of atrocities in Darfur.

Luis Moreno Ocampo said in a written request to the court’s judges publicized Thursday that Sudan is refusing to arrest Humanitarian Affairs Minister Ahmed Harun and Janjaweed militia leader Ali Kushayb.

Indeed, this whole exercise of continuing to seek the arrest of Sudanese government officials seems completely independent from the continuing efforts to seek a negotiated resolution to the various Sudan conflicts.  The ICC Sudan process may not be hampering a long-term peaceful settlement of the Sudan problem, but it is certainly not even a part of the Obama Administration’s policy, or anyone’s, policy toward Sudan, as Nick Kristof seems to admit.

More Fallout from Uruguay and Argentina

by Julian Ku

Did the ICJ ruling on Uruguay and Argentina help to resolve the dispute? Sort of.  There are some pesky protestors, though, who are not exactly convinced by the ruling.

Both sides said Tuesday’s decision by the International Court of Justice in the Netherlands gave them what they need to resolve their differences, with Argentina taking heart from a part of the ruling that said Uruguay did not properly inform it about the project.

The countries vowed to work through a binational commission to protect the Rio Uruguay.

A key hurdle remains, however, with no indication of how Argentine President Cristina Fernandez will overcome it: Argentine activists are still blocking the main bridge across the river and are refusing to give up their fight.

Meanwhile, having scanned the decision some more, the most interesting part of the decision may be Judges Al-Khasawneh and Simma’s joint dissent decrying the Court’s limited factual investigation and its refusal to develop better ways to examine complex scientific evidence.

Do the Face-Veil Bans Violate International Law?

by Julian Ku

Belgium and France are both considering laws to ban the wearing of full-face veils in public. According to Amnesty International, such bans would violate international human rights law.

“A general ban on the wearing of full face veils would violate the rights to freedom of expression and religion of those women who choose to express their identity or beliefs in this way,” said Claudio Cordone, Amnesty International’s interim secretary general.

“At the same time the Belgian authorities must make sure that all women who chose to wear the full veil do so without coercion, harassment and discrimination.”

Under U.S. constitutional law analysis, such a ban would have serious trouble under the Constitution’s Free Exercise of religion clause, especially because it seems aimed pretty directly at the religious practice of a single group. (Are yamakas in public next?)  But it would depend on the secular purpose of the law, which I don’t know much about.

Under, say, Article 18 of the International Covenant on Civil and Political Rights to which both France and Belgium are parties, there seems to be a pretty serious conflict  since it guarantees a right to religious practice (emphasis added).

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

And then there is the European Convention on Human Rights, Art. 9(1) (emphasis added):

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

So maybe Amnesty has a point. I suppose there might be a decent argument that the full-face veil is simply not a manifestation of a religious belief through practice and observance. Or that there is a strong public need to ban this practice. But there seems a clear basis for a challenge under the ECHR at least.  But I am far from an expert in this area, and would encourage any readers with better knowledge of the facts behind the bans, or with knowledge of how Article 9(1) has been interpreted, to comment.

U.S. Will Prosecute More Pirates in the Eastern District of Virginia

by Julian Ku

Although the U.S. is already prosecuting a pirate captured last year in New York, I hadn’t realized the U.S. was going to be trying other pirates in federal court as well.  But since Kenya has stopped accepting pirates for prosecution in their courts, I guess it makes sense that the U.S. and other countries will have to step up to the plate. At least 6 are already en route, with up to 21 slated for future trials.  Time to set up shop in Norfolk as a pirate defense lawyer!

Thus far, the only pirates that will be tried here will be ones charged with attacking U.S. vessels or property.  But unless I’m mistaken, I don’t think there is any requirement that the pirate have a connection to the U.S. in order to stand trial.  18 U.S.C. 1651 seems to define piracy very broadly:  “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” This statute has not been used recently, to say the least, since the last reported case I found was in 1958. Moreover, in its earlier incarnation, courts construed it somewhat more narrowly to require at least the involvement of a U.S. ship (although not the involvement of a U.S. citizen) See U.S. v. Furlong, U.S.Ga.1820, 18 U.S. 184. Still, in theory, one could interpret the statute to authorize universal jurisdiction.  If Kenya won’t take anymore pirates for trial, we might see a test of the universal jurisdiction scope of Section 1651.

Argentina May Investigate Spain’s Franco-era War Crimes

by Julian Ku

This seems like a bad idea for a number of reasons that are too obvious to go into here.

BUENOS AIRES, Argentina — Argentine human rights groups are turning the tables on Spain, hoping to open a judicial probe of murders and disappearances committed during the Spanish Civil War and the early years of Gen. Francisco Franco’s dictatorship.

Lawyers representing Argentine relatives of three Spaniards killed during the 1936-39 war will ask the federal courts here Wednesday to open an investigation, and hope to add many more cases in the months to come.

Ten Ways to Avoid the Americanization of International Arbitration

by Roger Alford

The ABA Journal has an interesting article on the Americanization of international arbitration. There’s nothing particularly new to our readers in this article. It’s a theme that my friend and colleague Tom Stipanowich has written about extensively. I’ve written a bit about the subject as well. But the fact that the story is being told in the largest legal publication in the United States is significant. The focus of the story is on transplanting American practices to the international arbitration arena, almost at the request of American counsel or arbitrators. Here’s a few choice quotes:

ICJ Rules in Favor of Uruguay in Pulp Mill Dispute

by Julian Ku

I haven’t really looked at it, but here is the ICJ’s judgment in the Argentina-Uruguay Pulp Mill Dispute. Although the Court found that Uruguay violated certain procedural obligations, it essentially ruled in favor of Uruguay on all substantive obligations (or it simply ruled that certain issues, like pollution effects, were outside its jurisdiction).  On the substantive obligations, there were three dissents, including one by Judge Simma (but not available yet, it seems).  The other materials on the case can be found here. Comments or thoughts on the case are welcome.

Eli Lake on the AUMF

by Kevin Jon Heller

Eli Lake has a fantastic essay at on the myriad ways in which Obama has replicated the worst excesses of the Bush administration with regard to national security.  He rightly identifies the source of the problem — the AUMF, which was passed in a fit of hysteria three days after 9/11 and has no natural expiration date.  Here is the final paragraph:

Above all, we must be honest with ourselves. Obama, like Bush, is committed to a long war against an amorphous network of terrorists. In at least the constitutional sense, he is no harder or softer than his predecessor. And like his predecessor, he has not come up with a plan for relinquishing these extraordinary powers once the long war ends, if it ever does. If change is going to come to U.S. policy on terrorism, it will have to come from a bipartisan recognition that Americans cannot trust their government to tell them when they are safe again.

I am normally skeptical of claims that we need more bipartisanship, because in the present political climate they are normally code for “Democrats need to act more like Republicans.”  But there is definitely an elective affinity between progressives and libertarians concerning issues of (ever-expanding) executive power.  When Eli Lake and Glenn Greenwald are in substantial agreement about something, we ignore their views at our peril…

Charming Betsy in the Ninth Circuit

by Kenneth Anderson

I am simply raiding Eugene Volokh’s edited clip from this new holding in the Ninth Circuit, including a discussion of the Charming Betsy canon (see the last couple of paragraphs, below the fold).  From Serra v. Lapin (9th Cir. Apr. 9, 2010) (Clifton, J., joined by Kozinski, C.J., and Wallace, J.) (some paragraph breaks added by Eugene):

Current and former federal prisoners allege that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law…. Plaintiffs earned between $19.00 and $145.00 per month at rates as low as nineteen cents per hour. Plaintiffs contend that by paying them such low wages, Defendants … violated Plaintiffs’ rights under the Fifth Amendment to the United States Constitution; articles 7 through 9 of the International Covenant on Civil and Political Rights (“ICCPR”); a U.N. document entitled “Standard Minimum Rules for the Treatment of Prisoners;” and the law of nations.

Continue Reading…

The Vatican’s U.S. Lawyer May Bring the Foreign Sovereign Immunities Act Back to the Supreme Court

by Julian Ku

In this fascinating profile of Jeffrey Lena, the lead (and perhaps only) lawyer for the Vatican in defending sex-abuse related lawsuits in the U.S., one also gets an update on the status of the various U.S. litigations against the Vatican.  The current Supreme Court petition for consideration is Holy See v. John Doe. The Court hasn’t yet decided whether to take the case, which raises a very boring but important question of foreign sovereign immunity. Since the Court seems to take lots of these cases, and it has sought the U.S. government’s views on this case, there is a decent chance it will make it to the Court.

The Neverending Torture Debate: Marc Thiessen’s Rebuttal of Jane Mayer

by Julian Ku

In interests of being “fair and balanced,” I thought I’d post Washington Post columnist Marc Thiessen’s rebuttal to Jane Mayer’s “devastating” New Yorker review of his book on Bush-era interrogation policies. At this point, neither side is really arguing the law much, but both seem focused on policy. Thiessen’s rebuttal looks pretty strong (as was Mayer’s review).  (see below for excerpts)

George Washington’s 220 Year Overdue Library Book: “The Law of Nations”

by Julian Ku

In all the amused press notices about George Washington’s (very) overdue library books, one small detail is worth noting.

The library’s ledgers show that Washington took out the books on 5 October 1789, some five months into his presidency at a time when New York was still the capital. They were an essay on international affairs called Law of Nations and the twelfth volume of a 14-volume collection of debates from the English House of Commons.

(Emphasis added).  Actually, the “Law of Nations” as most of our readers know, is the 18th century term for what today we call international law.  And “Law of Nations” may in fact refer to Emmerich de Vattel’s “The Law of Nations”, perhaps the most influential treatise on international law among the American Founding generation. Was ol’ GW researching his Neutrality Act Proclamation?

LOAC Conference at Catholic University, DC, Friday April 23

by Kenneth Anderson

If you are going to be in DC on Friday, April 23, there will be a terrific law of armed conflict program all day at Catholic University, Columbus Law School, including Harold Koh as lunchtime keynote speaker and a host of luminaries on the panels.  Advance registration required.  See program details below the fold.

Controversy and Developments in the Law of Armed Conflict: Customary vs Treaty Law; Law of the Sea Manual; Manual on International Law Applicable to Air and Missile Warfare

Friday, April 23, 2010

The Catholic University of America
Columbus School of Law
Washington, DC 20064

This program will examine three important efforts relating to International Humanitarian Law: the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, the more recent Commentary and Manual on International Law Applicable to Air and Missile Warfare (prepared by the Harvard Program on Humanitarian Policy and Conflict Research), and the ICRC’s multi-volume study on Customary International Humanitarian Law. To what extent do the manuals reflect state practice, and what role do such manuals play in the formulation and application of customary international humanitarian law?  Panels of international law experts and practitioners will discuss these important issues in a format designed to encourage lively debate, and to draw conclusions based both on scholarly treatises and the actual practice of states.

Continue Reading…

Call for Papers: Foucault and International Law

by Kevin Jon Heller

Our friends at the Leiden Journal of International Law — an exceptional journal — have asked us to post the following call for papers:

Special Issue of the Leiden Journal of International Law (2011)

Foucault and International Law

Abstracts due by 12 May 2010; Complete articles by 17 September 2010

The Leiden Journal of International Law is now soliciting articles for a special issue exploring the relevance of Foucault’s oeuvre to international law and legal theory. Apart from its merits for philosophy, political theory and sociology, the importance of Michel Foucault as a legal thinker (both as a thinker of law in his own right and as a thinker whose work can be illuminating for legal studies) is increasingly being felt. With the continuing translation and publication of Foucault’s lecture courses at the Collège de France and the ongoing importance of his already published work, Foucault’s work continues to provide fertile suggestions for rethinking many of our established notions of law, right(s), sovereignty and legal subjectivity. Yet to date there have been, with some notable exceptions, few sustained treatments of Foucault’s relevance to international law and international legal theory. This is the subject of Issue 2 of volume 24 (2011) of the Leiden Journal of International Law (LJIL).

What is the relevance of Foucaultian methodologies (archaeology, genealogy, problematisation) to international law and international legal theory? What does a Foucaultian analytic of international law entail? How can we use it to analyse international legal subjectivity? How does that relate to, inter alia, sovereign statehood and/or human rights law? How can the Foucaultian toolbox contribute to our understanding of the devolution of international public law, its fragmentation and specialisation (e.g. as an instance of governmentality)? What about international law ‘from below’ (the relevance of Foucaultian models of power/resistance, anti-globalisation perspectives and critiques of neoliberalism and the global rule of law, for example). These questions are just a number of suggestions, intended as provocations for thought, within the general theme of ‘Foucault and International law’ we invite contributors to interrogate and critically engage with.

Contributors will be asked to prepare an article of approximately 10,000 words (including footnotes) for publication in the LJIL, consistent with its instructions for authors. Those interested in contributing are requested to respond to this Call for Papers by email to managing editor Christine Tremblay (ljil [at] law [dot] leidenuniv [dot] nl) by 12 May 2010, attaching a 300-word abstract of the article you propose to contribute.

The selected authors are requested to submit the full articles by 17 September 2010. All contributions will be subject to double-blind peer review in accordance with the usual procedures of the LJIL. Please contact the LJIL (guest) editors with any further questions: Tanja Aalberts (taalberts [at] fsw [dot] leidenuniv [dot] nl) and/or Ben Golder (b [dot] golder [at] unsw [dot] edu [dot] au).

The Leiden Journal of International Law is published with Cambridge University Press, and provides a forum for two vital areas, namely international legal theory and international dispute settlement. For further information, please visit the journal’s website:

It sounds like a fantastic special issue.  My second article, written when I was a grad student at the New School for Social Research, was on Foucault’s concepts of power, subjectification, and resistance.  Forgive the shameless self-promotion, but here is the cite for anyone interested in reading it: 79 SubStance 80 (1996).

More on Baltasar Garzon

by Kenneth Anderson

Alas, I don’t agree with very much of KJH’s critique of Eric Posner’s Wall Street Journal opinion piece last week – Eric commenting on the suspension of Spain’s crusading universal jurisdictionalist judge, Baltasar Garzon.  However, rather than get back into that, I wanted to flag instead Financial Times columnist Christopher Caldwell’s comment on the subject.

Baltasar Garzón, the radical and ambitious investigative magistrate, made his name in Spain by revealing the tactics of Spanish counter-terrorism officials in the 1990s. In 1998, he ordered the arrest of the Chilean dictator Augusto Pinochet in a London hospital and in 2009 he proposed trying White House lawyers for the advice they gave George W. Bush on the legality of detaining prisoners at Guantánamo Bay. His agenda is consistently controversial. To some it looks like battling corruption on an ever bigger stage. To others it looks like corruption itself.

Continue Reading…

Monitoring NGO Monitor — 18 Days and Counting

by Kevin Jon Heller

It’s been 18 days since I asked NGO Monitor to provide the same detailed accounting of their funding that they demand of the human-rights groups they so regularly malign and demonize.  Readers will be shocked — shocked! — to know that the organization has ignored my request, in keeping with its profoundly hypocritical approach to funding.

In the meantime, of course, Gerald Steinberg continues to criticize others for doing precisely what NGO Monitor does:

European democracies are spending tens of millions of euros, pounds and krona to manipulate Israeli society and politics. This largely hidden European money that funds so-called “civil society” organizations, like B’Tselem, Yesh Din, Ir Amim, the Public Committee Against Torture, Peace Now and dozens more, is undermining Jewish sovereignty and the right to determine our own future.

The hypocrisy would be pathetic if it wasn’t so dangerous.  What is NGO Monitor hiding?  All we can do is speculate.

Meanwhile, the clock continues to tick.

Did Obama “Bungle” His Sudan Policy?

by Julian Ku

I am pretty supportive of Obama Administration’s general approach to Sudan, largely because it reflects a realistic sense of the limits of the U.S. government’s ability to influence matters there as well as the (relative) unimportance of Sudan to the U.S. and to the wider region. And so I think the hardline ICC-favored approach to Sudan (demand the arrest of Bashir as a primary condition of further participation in Sudan’s peace process) is both unrealistic and self-defeating in the short term.  Then again, I (and Obama) could be wrong, as John Norris at Foreign Policy, argues. Still, even Norris presumes that the administration will have to work with the existing regime and leadership:

There’s no need to sacrifice U.S. policy goals to lofty truth-telling. In fact, there’s a case to be made that diplomatic goals are actually better achieved with frank honesty when elections don’t pass the smell test. For example, if the administration had taken a tougher line with Khartoum about creating the underlying conditions for a free and fair national election, the country would already be further down the road toward creating genuine power-sharing in Sudan. Such an arrangement would in turn incentivize Bashir not to engage in adventurism around the upcoming independence referendum, and it would be an important step toward preventing future conflicts in Northern Sudan — after the South heads for the exit. Would negotiating all this be difficult? Absolutely. Yet, grasping the nettle now seems far preferable to watching from the sidelines as Sudan descends into broader conflict — again.

So if shouting about democracy from the rooftops à la George W. Bush was not effective, neither will be defending democracy in mumbled tones. One hopes that this administration has learned from its initial stumbles. Obama will have an important opportunity to get it right when he offers his first public comments on Sudan’s election in the days to come.

The Vatican’s (and the Pope’s) Immunity from Legal Action in the UK

by Julian Ku

Dapo Akande over at EJIL Talk! has a pretty persuasive argument in favor of the Vatican’s status as a state under international law, and therefore, the Pope’s right to head of state immunity.  Moreover, in the UK, the courts (like in the US) are bound to accept the determination of the foreign ministry as to individuals entitled to head of state immunity.  So maybe the lawyers in the UK threatening legal action are just blowing smoke. It certainly sounds like they will be blown right out of court.

A Response to Robert Bird and Peggy Chaudhry by David Orozco

by David Orozco

[David Orozco is an Assistant Professor of Business Law at Michigan Technical University]

Professors Bird and Chaudhry provide an insightful and timely analysis of European Law related to the repackaging and relabeling of grey goods, specifically pharmaceutical products. The analysis navigates readers through the morass of legal confusion and uncertainty in this area of international law. A couple of questions were raised by the paper that I would specifically like to address to the authors. First, given that the property system has provided little legal certainty in this area, why not resort to the law of contract? Can pharmaceutical companies, for example, embed contractual provisions with distributors that would shift economic and legal risk for products that somehow deviate from the expected distribution chain? This contractual risk would be imposed against a particular firm, so would EU trade law be circumvented in this regard, by resorting to contract law?

It also seems like the law has created a perfect Catch-22 scenario. The authors state that “[w]hen this [reputational] harm occurs, the mark owner can object unless the use is necessary to enter the market.” It seems as if trademark law attempts to reward the drug manufacturers’ marketing behavior and investments in brand equity on the one hand, and yet the trade laws penalize them for this since the argument will be made by parallel importers that they cannot compete unless they appropriate the valuable mark. The Article dissects the complex nuances of this paradoxical state of affairs.

Finally, it would be interesting to learn a bit more about how grey market goods become grey market goods. What occurs within the supply and distribution chain that allows for this to happen? Are there ethical concerns related to fraud or breach of contract regarding how these good enter the stream of commerce during re-importation? Should these facts be weighed in at all in the preceding analysis of the economic and legal implications of grey market activity?

Pharmaceuticals and the European Union: Managing Gray Markets in an Uncertain Legal Environment

by Peggy E. Chaudhry

[Robert C. Bird is an Assistant Professor and Ackerman Scholar at the University of Connecticut School of Business; Peggy E. Chaudhry is an Associate Professor at Villanova University School of Business]

Professor Robert Bird, Assistant Professor, University of Connecticut and Peggy Chaudhry, Associate Professor, Villanova University will discuss their Article, “Pharmaceuticals and the European Union: Managing Gray Markets in an Uncertain Legal Environment.” Their Article investigates the divergent views of parallel importers and manufacturers and the resulting legal battles that have evolved to contest access to the €133 billion European drug market. Drug manufacturers and gray marketers provide conflicting information about the merits of their position. The manufacturers’ stance on parallel trade is evident at its trade association, European Federation of Pharmaceutical Industries and Associations, and they respond that parallel traders exploit the regulatory price systems set up by EU governments and do not create benefits for health care, consumers, or the economy of Europe. Manufacturers also suggest that parallel trade results in safety and quality issues that stem from these distributors handling the pharmaceuticals. The counterargument from gray marketers is evident at the European Association of Euro-Pharmaceutical Companies (“EAEPC”) that profess that parallel trade provides competition and savings to consumers and health insurance funds across Europe. Manufacturers, they argue, charge the highest possible price in each country market and use supply restrictions to block parallel trade. Drug manufacturers respond that traders exploit the regulatory price systems set up by EU governments and do not create benefits for health care, consumers, or the economy of Europe. Manufacturers also suggest that parallel trade results in safety and quality issues that stem from these distributors handling the pharmaceuticals. The 2009 health scare of counterfeit pharmaceuticals in the supply chain of the NHS in the United Kingdom further supported the drug manufacturers’ trepidation about parallel trade in the EU. However, parallel traders through their associations, such as EAEPC, have been adamant in their claims that there is no link between the counterfeit and gray marketing of pharmaceuticals. The authors’ provide a synopsis of these divergent views and summarize the near-continuous stream of litigation in European courts through concise exhibits. The authors’ assert that parallel importers can never be eliminated altogether and provide several tactics that firms can use to slow gray market activity through a savvy mixture of legal and marketing strategies.

John Bellinger on Continuity and Change in Detention Policy

by Kenneth Anderson

Former DOS Legal Adviser (and a path-breaking guest blogger here at OJ when in that role a couple of years ago) John Bellinger has a short opinion column out at the CFR site, April 14, 2010 (corrected link, I hope!), discussing continuity and change in US detention policy on counterterrorism.  John takes up a range of issues, from trials to repatriation and more, and concludes that there is mostly continuity with the second Bush term.  I agree.  It is a good, short, robust summary of the issues involved.

(Update: In addition to John’s piece, Rick Pildes and David Golove have a calm, reasoned discussion at Balkinization on ways to deal with terrorism related detentions and trials.  They call for an approach that mingles aspects of criminal law and armed conflict law.  They emphasize the need for a legislated system.  It is true, of course, that I am an advocate of a national security court approach to both detention and trial, so I am predisposed to some form of the “melding” view, and am also strongly committed to legislating a system for all this — but regardless of where you start, I think this is an excellent discussion.)

Advice for the U.S. delegation in Kampala

by Duncan Hollis

Harold Koh’s ASIL speech drew lots of attention for his defense of the legality of U.S. use of aerial drones.  But Koh also spent much of the speech explaining and defending the U.S. decision to reorient its relationship toward the International Criminal Court.   He noted U.S. attendance (as an observer) at the ICC Assembly of States Parties in November, and U.S. plans to send a delegation to Kampala, Uganda at the end of next month for the ICC Review Conference.  That meeting will be a “big” one as the parties take stock of how the ICC has fared over its first five years of existence, and, more importantly, endeavor to fulfill the Rome Statute’s promise that the Conference will produce an agreement on a definition for the crime of aggression.  Koh’s speech painted a positive picture of U.S. engagement with the ICC in the stock-taking exercise, but sounded a more cautionary note on aggression, asking various questions on how the parties would give content to the definition and who would actually apply it in practice. 

Although it doesn’t seek to answer Koh’s questions directly, this week, UCLA’s International Justice Clinic produced a report advising the United States on how to proceed in Kampala.  The report, authored by six UCLA students, suggests that the United States should promote (and certainly not block) consensus on those elements of the crime of aggression that can be agreed in Kampala, while leaving the harder, jurisdictional issue for later negotiation.  The report expresses concern that an “all or nothing” approach by the United States on aggression might derail U.S. efforts to reengage with ICC overall.  It goes on to make additional suggestions for building U.S. cooperation with the ICC, via direct engagement with the ICC prosecutor, legislative buy-in through Congressional representation on the U.S. delegation in Kampala, and better U.S. law enforcement accountability on international criminal law issues consistent with notions of complimentarity.  Readers wanting to read the whole report can find it here.

Changes in the U.S. News International Law Rankings?

by Duncan Hollis

Today, U.S. News & World Report (USN&WR) officially released its 2011 rankings of American law schools.  This, in turn, led the legal blogosphere into its annual love-hate dance with the “overall” rankings–pouring over every move up or down the ladder, while simultaneously denouncing the ranking’s methodology and utility.  Lest our readers feel left out, I thought I’d flag the “new” International Law rankings that accompany the overall tiering.  NYU leads the pack, which actually seems quite sensible.  Although NYU lost a truly tremendous figure in Thomas Franck last year, it hired José Alvarez and Ryan Goodman to join the likes of Philip Alston, David Golove, Robert Howse, Benedict Kingsbury, Mattias Kumm, Andy Lowenfeld, Linda Silberman, and Joseph Weiler (and that’s only a partial listing of NYU’s international law faculty, not to mention their global visitors, clinicians, and institute folks who also spend time working on international legal issues there). 

I’ll leave to others to decide what to make of the remainder of the top 10 that’s available on the USN&WR website.  What I wanted to call attention to was the “premium” access list (i.e., the list for paying customers).  It details a fuller ranking of U.S. international law programs (here, for example, is where you’ll find my institution–Temple–coming in at No. 12, tied with Berkeley).  There’s something different, however, about the premium list this year.  In the past, USN&WR used it to list the “top 25” international law programs.  This year, the list stops at 15 (actually 17 given tie scores).  What gives?  Was this a calculated effort by USN&WR to change the scope and value of these specialty rankings? Was it the result of some problems with the survey data (I believe these rankings are done almost entirely based on peer evaluations) that precluded offering a longer list?  Or, was it a result of some other methodological shift?  I couldn’t find anything on the USN&WR site that explained the change.  As a result, I’d welcome thoughts from readers on the topic.  In doing so, I’ll also open up the thread to more general comments about the accuracy, utility, and value (or lack of any of the foregoing) in ranking international law programs at U.S. law schools.

Do We Need an International Court for Nuclear Proliferation? Nope.

by Julian Ku

During the recent “nuclear summit” in Washington, Dutch prime minister Peter Balkenende proposed the creation of a new international tribunal to enforce and punish violations of nuclear non-proliferation agreements.  Putting aside the fact that this is a blatant effort to put another international court in his hometown (the Hague), I agree with Prof. Göran Sluiter that this is a dumb idea. It is a great example of how creating an international tribunal or an international institution is often a substitute for doing something useful or important on an important policy question.  As Sluiter points out, we already have plenty of international courts.

Balkenende explicitly mentioned the reinforcement of the international rule of law as a basis for the creation of the new tribunal. In itself, this is an admirable goal. However, nations can already be held accountable in the International Court of Justice (ICJ), which has arbitrated international conflicts for almost a century and has long been a trusted advisor to the United Nations.

A Response to Ingrid Wuerth

by John F. Coyle

Many thanks to Ingrid Wuerth for her thoughtful response to my Article.

I agree with Ingrid that the importance of maintaining a uniform international standard in the interpretation of incorporative statutes may be especially salient in the context of treaties, like the Hague Rules, that address coordination problems.  I disagree, however, that the borrowed treaty rule is of little salience in the context of human rights treaties that seek to establish minimum international standards.  An international standard contained in a human rights treaty is typically invoked by domestic litigants only where its application would result in increased protection of individual rights; it is the rare case in which the government is the first to cite to a human rights treaty.  In most (though not all) cases, a presumption requiring the court to consult the relevant international standard as a prelude to interpreting a domestic statute implementing that treaty seems likely to produce tangible benefits vis-à-vis individual rights.  Certainly this was true in INS v. Cardoza-Fonseca, where the petitioner successfully urged the Supreme Court to interpret incorporative statutes that are part of the Immigration and Nationality Act to conform them to the relevant international standard.  A presumption that the court should conform its construction of an incorporative statute to the international standard would do even more to promote individual rights.  Consequently, I believe that the widespread application of the borrowed treaty rule could have a direct and positive impact on the domestic implementation of human rights treaties.  Its utility is not limited exclusively to coordinative treaties.

Ingrid also suggests that the Supreme Court in Sanchez-Llamas rejected the notion that U.S. courts should seek to interpret a particular treaty in the way that an international tribunal would.  To be clear, I am not arguing that U.S. courts should view themselves as international tribunals when seeking to determine the meaning of incorporative statutes.  Rather, I suggest that these courts should take a broad perspective on the nature of the interpretive project before them.  Rather than reading an incorporative statute as though it were any other statute, the court should take into account the fact that a portion of the statutory text is derived from an international treaty and that other courts—at the national and international level—may likewise be called upon to consider the meaning of the source treaty.  While there can be no doubt that the Supreme Court in Sanchez-Llamas gave short shrift to the views of the ICJ, there are many other examples where that court and the lower federal courts have looked to international and foreign law sources in order to determine the meaning of treaties and incorporative statutes.  In taking this broad view, these courts have stepped outside their own legal system in an attempt to ascertain, as much as possible, the meaning of the relevant provisions in the (international) legal system from which they were taken.  The borrowed treaty rule would require that U.S. courts take a similarly broad view.

Finally, I am not convinced that the Charming Betsy canon is, as Ingrid suggests, an adequate substitute for the borrowed treaty rule.  The Charming Betsy canon applies where (1) a statute is ambiguous and (2) there is an actual conflict between one plausible construction of the statute and a rule of international law.  Absent ambiguity or an actual conflict, the canon is inapposite.  The borrowed treaty rule, by comparison, applies to guide the interpretations of all incorporative statutes regardless of whether they are ambiguous, and its application is also not predicated on the existence of any conflict.  As such, the borrowed treaty rule is more likely to result in interpretations of incorporative statutes that are faithful to the meaning of the underlying treaty than is the Charming Betsy canon.

A Response to John Coyle by Ingrid Wuerth

by Ingrid Wuerth

[Ingrid Wuerth is a Professor of Law at Vanderbilt University Law School]

This Article by John Coyle focuses on U.S. statutes that incorporate treaties into domestic law. As John defines them, incorporative statutes may include implementing legislation for non-self executing treaties, statutes that facilitate the implementation of self-executing treaties, or congressional executive agreements; the key question is whether they give effect to an international agreement. Unlike treaties or the Alien Tort Statute, incorporative statutes do not present obvious constitutional questions, and they have received relatively little attention from commentators. The Article argues that considering these statutes as a group yields two insights: (a) courts should presume that incorporative statutes conform in meaning to the text of the treaty that they incorporate; and (b) pursuant to the Charming Betsy canon, courts should interpret ambiguous non-interpretive statutes merely to avoid violations of international law, not to favor conforming interpretations. The scope and basis of the Charming Betsy canon has been examined and debated at some length, so I will focus my comment on John’s innovative first argument.

Why should courts employ a presumption that incorporative statutes conform in meaning to the treaty to which they give effect? It seems that courts generally do interpret treaties in this way, as the Article explains, and in the end I was not fully convinced that we need this presumption in addition to the Charming Betsy canon. In support of a presumption, the Article argues that the underlying purpose of treaties is to create a “uniform international standard” and that the core function of incorporative statutes is to bring this uniform international standard into domestic law. While the creation of a uniform standard may be especially significant for some kinds of treaties, like those that solve coordination problems, it seems that many treaties (like human rights treaties) may only really be concerned with creating a minimum standard (and this is captured by the Charming Betsy canon), and above that minimum standard there is no reason to presume that uniformity is especially significant for either domestic or international actors. Statutes like the TVPA (which is defined as incorporative) just don’t seem driven by a desire to conform domestic law to international law.

The Article also invokes the “borrowed statute rule” to support the presumption. One aspect of that rule, as the Article explains, is its reliance on the opinions of the high court from the jurisdiction from which the statute is borrowed; here the Article argues that courts should interpret treaties as international tribunals would. Respectful consideration notwithstanding, there seems to be some tension between this approach and the Sanchez-Llamas opinion, which both rejected the dissent’s emphasis on uniformity and gave little deference to the ICJ opinion. Finally, another basis proffered for the presumption is that it largely tracks what courts already do. Indeed there are very good reasons for courts to interpret a statute with an eye toward the treaty that it seeks to implement. And because a treaty is obviously involved, Congress had the opportunity to consider the international implications of the statute it drafted; indeed, the Article argues that Congress intends to conform domestic to international law. Why employ a presumption if courts do pretty well without one, and we have reason to the think that the language Congress uses reflects its views on conformity? Other presumptions—against extraterritoriality and Charming Betsy for example—help courts evaluate aspects of a statute that Congress likely did not consider explicitly.

I only have 28 words left! Just enough to thank John for the interesting Article and for drawing our attention to an underexamined class of statutes. And to congratulate him on the new job at Carolina—go ‘Heels.

Incorporative Statutes and the Borrowed Treaty Rule

by John F. Coyle

[John F. Coyle is a Climenko Fellow and Lecturer on Law at Harvard Law School]

I want to thank Opinio Juris and the Virginia Journal of International Law for the opportunity to discuss my Article, “Incorporative Statutes and the Borrowed Treaty Rule.” I’d also like to express my gratitude to Professor Ingrid Wuerth of Vanderbilt Law School for providing a response to the piece.

This Article considers the question of how U.S. courts should interpret statutes that incorporate language and concepts derived from international treaties. Over the years, Congress has enacted such “incorporative statutes” in a number of areas, including conservation law, intellectual property law, arbitration law, maritime transport law, immigration law, and criminal law. While courts and scholars have previously examined these statutes on an individual basis, there has been little attention paid to incorporative statutes as a separate class of statutes.

This relative inattention has given rise to two problems.  The first is that courts called upon to construe incorporative statutes are generally unaware of the ways in which other courts have gone about this task.  It is virtually unheard of, for example, for a court examining an incorporative statute in the intellectual property context to look to how courts have construed an incorporative statute that relates to immigration law, notwithstanding their common animating purpose.  A second cost is a tendency by some scholars to misapprehend the proper scope of the long-standing Charming Betsy canon of statutory construction, which provides that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”  Specifically, these scholars have advanced a view of the canon that erodes the distinction between incorporative and non-incorporative statutes and directs courts, in effect, to read all ambiguous statutes as though they were incorporative statutes.

This Article seeks to address both of these problems.  It first looks to a number of sources—including the structure and function of incorporative statutes, common law canons of construction, and the case law of the Supreme Court of the United States—to outline an interpretive framework for reading such statutes.  Under the proposed framework, courts should presume that a statute that incorporates language or concepts from a treaty should be read to conform to its interpretation of the language in the source treaty, regardless of whether the statute is ambiguous.  This presumption may be rebutted only by compelling evidence that Congress intended a different result.  The Article labels this approach “the borrowed treaty rule.”

The Article then goes on to distinguish the borrowed treaty rule from the Charming Betsy canon.  The view of the Charming Betsy canon that requires courts to construe all ambiguous statutes to conform to international law is misguided, the Article suggests, because it effectively abolishes the important and meaningful distinction between incorporative and non-incorporative statutes.  Unlike their incorporative brethren, non-incorporative statutes are statutes of general application, drafted without an eye to international law.  Courts called upon to interpret such statutes have no way of knowing whether Congress, had it foreseen the conflict between the statute and international law, would have chosen to redraft the statute to conform it to international law.  Moreover, none of the rationales underlying the borrowed treaty rule support its application to non-incorporative statutes.  In light of these and other differences, the proposition that courts should read ambiguous non-incorporative statutes in precisely the same way as incorporative statutes is untenable.  The Article proposes that whereas statutes that incorporate written international law should be read to conform to that law (in accordance with the borrowed treaty rule), ambiguous non-incorporative statutes should be read merely so as not to conflict with it (in accordance with the Charming Betsy canon, properly understood).

Some Thoughts on Eric Posner’s WSJ Editorial

by Kevin Jon Heller

Eric Posner has an editorial today in the Wall Street Journal today that uses the recent indictment of Judge Garzon in Spain as an opportunity to dust off the traditional far-right attack on the concept of universal jurisdiction and the existence of the ICC.  It’s a remarkably misleading editorial, one that deserves a thorough response.

Mr. Garzon wanted to prosecute Pinochet in Spain for atrocities committed during his reign in Chile, despite the fact that Pinochet was a former head of state and had been granted amnesty as part of a deal that paved the way to democracy in his home country.

Posner — here parroting Henry Kissinger’s famous 2001 essay — obviously knows very little about Chilean history.  Pinochet was not “granted” amnesty; he gave it to himself.  As the New York Times noted in 2006, “General Pinochet originally decreed the amnesty in April 1978, four and a half years after he seized power in the coup that overthrew an elected president, Salvador Allende.”  Nor did the amnesty “pave[] the way to democracy in his home country” — Pinochet’s military junta remained in power until 1990, twelve years after the amnesty was decreed.  That’s a long road.

But don’t take it from me that the 1978 amnesty did not “pave the way” to democracy.  Listen to Michele Bachelet, the former President of Chile who was tortured by Pinochet in the infamous Villa Grimaldi in the 1970s.  From the same New York Times article: “‘This government, like other democratic governments before it, maintains that the amnesty was an illegitimate decision in its origins and content, form and foundation,’ Ms. Bachelet’s chief of staff, Paulina Veloso, said in an interview at the presidential palace here. ‘Our conviction is that it should never have been applied at all, and certainly should never be used again.’”  I guess Posner understands democracy in Chile better than the governments that were democratically elected after Pinochet was forced from power…

The Right of Self-Defense Includes “Offensive” Cyber Attacks

by Julian Ku

That very trendy and useful legal concept – the right of self-defense — is not just for targeting U.S. citizens to be killed. The U.S. military’s new “Cyber Command” chief has asserted that the U.S. government’s right of self-defense almost certainly permits it to take offensive “cyber” attacks.

… commanders have clear rights to self-defense, he said. He added that while “this right has not been specifically established by legal precedent to apply to attacks in cyberspace, it is reasonable to assume that returning fire in cyberspace, as long as it complied with law of war principles … would be lawful.”

Is the law of war the right paradigm? I suppose so.  I await further thoughts from our “resident” cyberwar expert. Prof Hollis?

The Koh Speech and Targeting an American Citizen

by Kenneth Anderson

Adam Serwer, a journalist and blogger at the American Prospect, makes this observation in a very interesting post (linked in Robert Wright’s NYT Opinionator column) at the American Prospect Tapped blog (via The Progressive Realist).  (My apologies for interrupting the symposium also; I’ll take a backseat now!):

State Department Legal Adviser Harold Koh’s speech to the American Society of International Law has mostly been read as a justification of the administration’s use of drone strikes against suspected al-Qaeda targets. With the news that the Obama administration has targetedAmerican-born extremist cleric Anwar al-Awlaki for death, I went back to Koh’s explanation for why the drone strikes are legal. It seems to me that his arguments could possibly double as a justification of the government’s authority to kill al-Awlaki without due process.

Serwer then walks back through the text of Legal Adviser Koh’s speech, applying the language about drones to the targeting of Anwar al-Awlaki.  He concludes that it could be seen as a justification for that as well.  I think that’s right, and a good observation.   Continue Reading…

Whale Wars May Finally End? The U.S. Tries to Make a Deal

by Julian Ku

Apologies for this interruption of a great VJIL discussion on Chris Bruner’s fascinating article, but I can’t resist yet another post on the continuing international dispute over whaling.  The NYT reports the U.S. is trying hard to broker a deal between the anti-whaling nations (read Australia) and whaling nations like Japan.

The compromise deal, which has generated intense controversy within the 88-nation International Whaling Commission and among antiwhaling activists, would allow the three whaling countries to continue hunting whales for the next 10 years, although in reduced numbers.

In exchange, the whaling nations — which have long exploited loopholes in an international treaty that aims to preserve the marine mammals — would agree to stricter monitoring of their operations, including the placing of tracking devices and international monitors on all whaling ships and participation in a whale DNA registry to track global trade in whale products.

This doesn’t quite sound like what Australia wanted, but it appears the Australians are on board.  So, sadly for me, we may be seeing an end, for the time being, of a potential ICJ showdown between Australia and Japan.  But there is always hope: negotiations are ongoing and could still fall apart.

A Response to Brian Cheffins

by Christopher M. Bruner

Many thanks to Professor Cheffins for his thoughtful response, in which he highlights an important challenge in evaluating the degree of shareholder-centrism in differing corporate governance systems—the difficulty of quantifying the impact of varying legal strategies for protecting shareholders’ interests. In this reply to the issues raised by Professor Cheffins, I distinguish various metrics of shareholder-centrism and consider the degree to which they are amenable to straightforward cross-border comparison.

Professor Cheffins agrees that U.K. shareholders possess greater governance rights than U.S. shareholders do, but rightly observes that rules of civil procedure and corporate law give U.S. shareholders greater capacity to sue. In the important empirical study cited by Professor Cheffins, he and his coauthors find that lawsuits are far more likely to be filed against U.S. directors—and that these suits produce a far greater volume of published opinions—than is the case in the United Kingdom. These findings lead him to suggest that U.S. shareholders’ capacity to sue may compensate for weaker substantive legal protections.

As Professor Cheffins notes, I address the topic briefly in my Article (at pp. 609–10), and ultimately we agree that the extent to which threat of suit may align directors’ decision-making with the shareholders’ interests is unknown. Given the inherently speculative nature of the question, it may be unknowable—though in my view there remains good reason to conclude that a substantial gap in shareholder orientation remains. While the litigation rate in the United States may vastly eclipse that in the United Kingdom, Professor Cheffins and his coauthors find that liability exposure for directors of U.S. public companies remains exceedingly low. The annual chance of a director of a NYSE- or NASDAQ-listed company facing a corporate lawsuit generating a judicial decision was found to be about 1.1 percent (at p. 706), and the total number of cases found over a seven-year period in which public company directors—inside or outside—had to make out-of-pocket payments could be counted on one hand (three and one, respectively) (at pp. 709–10). To be sure, a high degree of risk aversion, perhaps amplified by reputational considerations, might lead U.S. directors to fear such suits, but appraisal of their liability exposure would not itself seem to militate strongly toward favoring shareholders’ interests. Indeed, such findings might help explain why U.K. shareholders have not pressed harder for expanded litigation rights—particularly where those shareholders are diversified institutions that might reasonably anticipate being just as likely to pay damages awards under such a regime (indirectly, through indemnification and insurance arrangements) as to receive them.

Aside from governance powers and enforcement capabilities, however, there is another important metric of shareholder-centrism—explicit statements of corporate purpose. If strong enforcement capabilities for shareholders were intended to substitute for governance powers in the U.S. corporation—representing a functionally equivalent means of focusing directors’ minds on their interests—then we might expect to find similar expressions of commitment to shareholders in the articulation of directors’ duties. Yet, the U.S.–U.K. divergence is every bit as stark here as it is in the context of governance powers. That U.K. corporate governance places shareholders at the conceptual heart of the corporation is clear—notably in the Companies Act 2006 mandate that directors pursue the best interests of the shareholders exclusively, and in the fact that directors’ powers flow solely from the corporation’s Articles, rather than from the statute. By contrast, U.S. corporate law has remained decidedly ambivalent on issues of corporate purpose, declining invitations to define the corporate enterprise exclusively by reference to the shareholders. In this manner, U.S. corporate law has maintained the flexibility to accommodate other stakeholders’ interests at times of perceived crisis, as when a wave of leveraged hostile tender offers hit in the mid-1980s. Shareholders desiring unfettered freedom to accept such offers sued, to be sure, but the outcome—a decidedly stakeholder-centric approach to takeover regulation (through court decisions in Delaware and statutes elsewhere)—has not remotely approximated the degree of shareholder orientation reflected in the letter of the United Kingdom’s City Code on Takeovers and Mergers and the practice of the associated Panel on Takeovers and Mergers.

To reiterate, Professor Cheffins is absolutely right that the deterrent value of U.S. shareholder litigation remains unknown, and consequently that the precise extent to which shareholder-centrism in U.K. corporate governance exceeds that in U.S. corporate governance “remains at best unclear.” In my view, however, the evidence that a substantial gap exists—both in design and in practical effect—remains compelling.

A Response to Christopher Bruner by Brian Cheffins

by Brian Cheffins

[Professor Brian Cheffins is the S.J. Berwin Professor of Corporate Law at the University of Cambridge Faculty of Law]

As Prof. Bruner points out in his insightful Article, in the literature on comparative corporate governance, there is a tendency to treat the United States and the United Kingdom as being very similar across key dimensions. He shows convincingly that in fact there are key differences between corporate governance in the two countries, focusing in particular on greater “shareholder-centrism” in British public companies in comparison to their U.S. counterparts. He then seeks to account for the discrepancy in terms of political economy, arguing that shareholders loom larger in the corporate law context in the United Kingdom than they do in the United States because in Britain other constituencies affiliated with corporations (“stakeholders”) have greater extra-corporate protection.

Prof. Bruner’s Article makes a series of valuable and intriguing points. However, from a comparative perspective, one is nevertheless left with a nagging question: Is the United Kingdom really markedly more shareholder-friendly than the United States? There in fact is reason to doubt this is the case.

It no doubt is true that U.K. shareholders have greater shareholder governance rights—powers enjoyed by shareholders over key decisions in the firm. However, as I have pointed out in an Article co-written with John Armour, Bernard Black and Richard Nolan (Private Enforcement of Corporate Law: An Empirical Comparison of the UK and US, 6 Journal of Empirical Legal Studies, 687 (2009)), civil procedure rules and substantive corporate law are considerably more “plaintiff friendly” in the United States than the United Kingdom. The greater ability of U.S. shareholders to sue to protect their rights arguably largely compensates for inferior protection along other dimensions.

Prof. Bruner briefly acknowledges in his paper that the greater capacity of shareholders to sue in the United States may narrow the gap in shareholder orientation between Britain and the U.S. (at p. 609). The Article I have written with Armour, Black and Nolan provides empirical data that indicates the point merits greater attention. For instance, while it is reasonably common for directors of U.S. public companies to be sued for damages under corporate law, we found, based on a search of cases filed in the United Kingdom, only one instance in three years where a case was filed against directors of a publicly traded company under corporate law claiming damages. Moreover, while our U.S. search uncovered 355 cases over a seven year period launched in state or federal courts against directors of a publicly traded company involving a claim for damages for breach of duty that resulted in a published opinion, one has to go back to the early 1980s to find a reported U.K. case where a director of a public company was a defendant in a derivative suit.

As Prof. Bruner points out (at p. 609), the extent to which litigation has deterrent value in the corporate context is unknown. Nevertheless, with the private enforcement gap between the United Kingdom and the United States being as large as we have found, the extent to which the United Kingdom is more “shareholder friendly” than the United States remains at best unclear.

Power and Purpose in the “Anglo-American” Corporation

by Christopher M. Bruner

[Christopher M. Bruner is an Associate Professor, Washington and Lee University School of Law]

First I want to thank Opinio Juris and the Virginia Journal of International Law (VJIL) for the opportunity to discuss my Article, “Power and Purpose in the ‘Anglo-American’ Corporation.” I’d also like to express my gratitude to Professor Brian Cheffins of the University of Cambridge for providing a response to the piece.

Public corporations in the United States and the United Kingdom are—from the global perspective—so very similar that it has become a commonplace in the comparative corporate literature to treat them as if they were practically identical. Notably, large American and British corporations tend to finance their operations through public offerings of stock to passive, dispersed investors, whereas their counterparts elsewhere tend to be financed and dominated by controlling families, banks, corporate groups, or the government. Likewise, the U.S. and U.K. corporate governance systems emphasize generating returns for public shareholders more than other systems do, reflecting a relatively shareholder-centric perspective fairly described as uniquely “Anglo-American.” I argue, however, that the U.S. and U.K. corporate governance systems exhibit substantial differences that have received insufficient attention in the comparative corporate literature. Simply put, shareholders in the United Kingdom are, in fact, far more powerful, and far more central to the aims of the corporation, than are shareholders in the United States.

In this Article, I describe this divergence, offer an explanation for it, and explore its practical and theoretical implications. First, I examine methodological challenges faced in comparative corporate governance, observing in particular the tendency of recent economically oriented comparative scholarship to depict corporate governance as a means for minimizing agency costs in the firm without sufficient recognition of culturally driven dimensions of the field relating to larger social goals within a particular country. I then provide an overview of corporate governance structures reflecting the substantial divergence in shareholder orientation between the U.S. and U.K. systems—notably the greater power of U.K. shareholders to remove directors and accept hostile takeovers, and the greater emphasis placed on their interests in the formulation of directors’ duties—and develop the argument that a complete explanation of this divergence requires addressing the range of regulatory structures affecting relationships among various stakeholders within the public corporation, including employees.

Through an examination of political, social, and cultural forces at work in each country during critical periods in the development of their corporate governance systems, I argue that stronger stakeholder-oriented social welfare policies and legal structures have permitted the U.K. corporate governance system to focus more intently on shareholders without giving rise to political backlash—and conversely that weaker stakeholder-oriented social welfare policies and legal structures have inhibited the U.S. corporate governance system from doing the same. A particularly vivid example explored in the Article is the divergence between the U.S. takeover regime, giving boards of directors substantial latitude to interfere with hostile bids, and the U.K. takeover regime, in which shareholders possess unfettered discretion to determine the outcome. Whereas concerns for the social welfare of employees losing their jobs in takeovers loomed large in the minds of judges and legislators fashioning the stakeholder-centric U.S. approach in the 1980s, the more shareholder-centric U.K. approach was able to take root and remain politically stable under the Labour government of Harold Wilson in the 1960s precisely because the government believed that external regulatory structures—notably the British welfare state—could mitigate costs borne by employees in the process of corporate consolidation.

In developing this argument, I distinguish my approach from other political theories of corporate governance, which I argue fail to account for the observed U.S.–U.K. divergence—largely due to the pursuit of a holistic global theory, requiring excessive sacrifice of nuance for parsimony. I argue that the role of politics in corporate governance changes fundamentally once a country moves from a concentrated ownership system to a dispersed ownership system—as the United States did in the early twentieth century, and the United Kingdom did somewhat later. Unlike in concentrated ownership systems, where the aim is to constrain the power of controlling shareholders for the protection of other stakeholders, in dispersed ownership systems the aim is to balance protection of minority shareholders with protection of other stakeholders. My Article demonstrates that the United States and the United Kingdom have sought to strike this balance in very different ways, reflecting two different forms of political equilibrium within the dispersed ownership structure.

Robert Wright Is Very Unhappy with Drone Warfare

by Kenneth Anderson

I am unable to say much at this moment, either to Kevin’s question below or to this Robert Wright “Opinionator” blog post in the New York Times, but I did want to flag it for your attention.  Wright is unhappy with both drone warfare and targeting of US citizens, and many other things besides:

Students of the law might raise a couple of questions: 1) Doesn’t it violate international law to fire missiles into Pakistan (especially on a roughly weekly basis) when the Pakistani government has given no formal authorization? 2) Wouldn’t firing a missile at al-Awlaki in Yemen compound the international-law question with a constitutional question — namely whether giving the death penalty to an American without judicially establishing his guilt deprives him of due process?

I’m not qualified to answer these questions, and, besides, it doesn’t really matter what the correct answers are. The Obama administration has its lawyers scurrying to convince us that the answers are no and no, somewhat as the Bush administration dispatched John Yoo to justify its torture policy.

Hmm. That said, I must flee the scene, though I’ll try to say something to various of these issues later on; my disagreement with this view is not exactly news to Our Regular Readers.  Meanwhile, though, I’ve been reading through the Virginia symposium pieces, on all their various topics, and it looks like a heck of a good issue and grist for discussion.

Virginia Journal of International Law, Vol. 50-3: 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 recently published by VJIL in Vol. 50:3, available here.

Today, Christopher M. Bruner, Associate Professor, Washington and Lee University School of Law, will discuss his Article Power and Purpose in the “Anglo-American” Corporation. In his Article, Professor Bruner addresses the striking divergence between U.S. and U.K. corporate governance systems. Contrary to prevailing perceptions, Professor Bruner explains, shareholders in the United Kingdom are, in fact, far more powerful, and far more central to the aims of the public corporation, than are shareholders in the United States. Through an examination of political, social, and cultural forces at work in each country during critical historical periods in the development of their corporate governance systems, Professor Bruner argues that stronger stakeholder-oriented social welfare policies and legal structures have permitted the U.K. corporate governance system to focus more intently on shareholders without giving rise to political backlash—and, conversely, that weaker stakeholder-oriented social welfare policies and legal structures have inhibited the U.S. corporate governance system from doing the same. A particularly striking example Professor Bruner offers is the impact of employee health care on takeover regulation in the United States relative to the United Kingdom. Professor Bruner then concludes that the novel political theory he outlines in his Article holds important implications for comparative corporate governance, as well as for ongoing domestic policy debates regarding the future of corporate governance in the United States. More broadly, Professor Bruner argues that his analysis exposes substantial shortcomings in comparative theories predicting or advocating convergence on a shareholder-centric model, to the degree that they fail to address the political, social, and cultural factors conditioning the degree of shareholder-centrism in U.S. and U.K. corporate governance.

Professor Brian Cheffins of the University of Cambridge Faculty of Law will serve as respondent.

On Thursday, John F. Coyle, Climenko Fellow and Lecturer on Law, Harvard Law School, will discuss his Article Incorporative Statutes and the Borrowed Treaty Rule. In his Article, Professor Coyle examines how courts should interpret statutes that, by their terms, incorporate international law into the domestic law of the United States. Looking to a number of legal sources—including the structure of “incorporative” statutes, common law canons of construction, separation of powers principles, among others—Professor Coyle develops an interpretive framework for reading such statutes—termed the “borrowed treaty rule.” Under his proposed framework, courts should presume that a statute that incorporates language or concepts from a treaty should be read to conform to the treaty, regardless of whether the statute is ambiguous. This presumption, Professor Coyle argues, may be rebutted only by compelling evidence that Congress intended a different result. Professor Coyle then goes on to distinguish the borrowed treaty rule from the Charming Betsy canon of interpretation, which provides that courts should, whenever possible, construe ambiguous domestic statutes so as not to violate international law. Although a number of legal scholars have argued that U.S. courts should, per the Charming Betsy canon, construe all ambiguous statutes (not just those that are incorporative) to conform to international law, Professor Coyle argues that such an approach is misguided, because none of the rationales underlying the borrowed treaty rule provide support for using that same approach to interpret statutes that are not incorporative. It is necessary, therefore, Professor Coyle explains, to distinguish between the borrowed treaty rule, which should be used to construe incorporative statutes, and the Charming Betsy canon, which should be used to construe ambiguous statutes that are not incorporative. The former type should be read to conform to international law, whereas the latter need only be read so as not to conflict with it.

Professor Ingrid Wuerth of Vanderbilt University Law School will serve as respondent.

On Friday, Professor Robert C. Bird, Assistant Professor and Ackerman Scholar, University of Connecticut School of Business, and Professor Peggy E. Chaudhry, Associate Professor, Villanova University School of Business, will discuss their Article Pharmaceuticals and the European Union: Managing Gray Markets in an Uncertain Legal Environment. In their Article, Professors Bird and Chaudhry explore one of the most opaque and contradictory areas of law in the European Union (EU)—the regulation of parallel trade, and particularly, the ongoing legal battle over gray market sales of drugs, in the EU. Professors Bird and Chaudhry begin by unraveling the precedent that should guide European national courts in how they treat product repackaging by parallel importers. They attempt to clarify the law both through a disambiguation of the relevant cases and a series of exhibits designed to provide clear guidance on both the rules and exceptions. In doing so, Professors Bird and Chaudhry show that the European Court of Justice (ECJ) cases must be better understood, because they influence not only future ECJ precedent but also the precedent of every national court system in the EU. Professors Bird and Chaudhry move, then, to the task of presenting strategies for both parallel importers and drug manufacturers to best navigate the legal environment and protect their respective interests. These strategies, they argue, will enable importer and manufacturer alike to make more efficient decisions based upon a clearer understanding of the law. Further, greater clarity, they argue, should decrease conflict and litigation and may also encourage smaller firms to enter the market, thus increasing competition and reducing the likelihood of cartel-like behavior. Furthermore, less litigation and more competition, they note, ultimately results in more favorable prices paid by the consumer.

Professor David Orozco of Michigan Technological University will serve as respondent.

We encourage you to join in the discussion online this week. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.

A Question for Koh Defenders

by Kevin Jon Heller

A simple question for those who believe “self-defense” and/or the AUMF authorizes the CIA to kill Americans abroad outside of armed conflict.  If Obama authorizes it, can the CIA put a bullet in the back of the skull of an American citizen believed to be affiliated with al-Qaeda while he is watching a movie in Topeka, Kansas?

If not, why not?

Why the Law of War Permits the U.S. to Detain and Try 16-Year-Olds Like Omar Khadr

by Julian Ku

Christopher Jenks, Chief of the International Law Branch of the Office of the Judge Advocate General, has a pretty compelling defense here of the legality of the U.S. detention and trial of Canadian Omar Khadr for violations of the law of war, despite the fact that Khadr was not quite 16 when he committed his alleged crimes.  The heart of his analysis seems to be based on Additional Protocols of the Geneva Conventions (which the U.S. is not a party to but to which it adheres as a matter of policy).

Additional Protocol I, which deals with IAC, discusses the protection of children in art. 77. While art. 77 affords special protections, those protections apply to children under 15. Even then, the special protections do not preclude children, even those under 15, from being arrested, detained, or interned if they take a direct part in hostilities. Under AP I, persons who had not reached 18 years of age when they committed an offense related to armed conflict are not subject to the death penalty. The clear inference is that such individuals may be held criminally responsible for their actions and subject to punishment, just not capital punishment.

Additional Protocol II, which deals with NIAC, describes the care and aid children require in art. 4, and in slightly more detail than AP I. It does so first as applied to children who do not take a direct part in hostilities or who have ceased to take part in hostilities. It then qualifies that the special protections remain applicable to children under 15 who have taken a direct part of hostilities. Again though, the special protections do not include protection or immunity from internment or detention, and wouldn’t apply to Khadr anyway as he was not under 15.

What About Congress? The Washington Post Endorses Inherent Executive Power to Use Military Force

by Julian Ku

Following up on Ken’s post about the Washington Post editorial endorsing Harold Koh’s legal defense of targeted killings, it is worth analyzing the passage Ken quoted one more time, but this time from a domestic U.S. constitutional perspective:

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force(AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

What is fascinating about this passage is that the Post seems to endorsing a general authority of the President to use deadly force against “current and future enemies that pose an imminent threat,” whether or not those enemies fall within the Authorization for the Use of Military Force. The Post seems to be endorsing an “inherent” right of the President to target enemies, with or without congressional authorization.

There was a time when the debate over the use of force by the U.S. government focused almost exclusively on a domestic separation of powers conversation. U.S. legal scholars and elites would engage in debates about when and whether Congressional authorization is required before the President can use military force against U.S. enemies.  I think that this debate is basically over, thanks to the Obama Administration.

Washington Post Praises Harold Koh Statement on Drones

by Kenneth Anderson

The Washington Post editorializes today in praise of Legal Adviser Koh’s statement on drones in his speech to ASIL on March 25.  It specifically focused on the self-defense distinction in the statement:

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force (AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

The Wall Street Journal also praised the speech – or at least the drone warfare part of it – in an editorial a week or so ago.  (Unless I missed something, I don’t believe the NYT has weighed in editorially on this issue.)  The WSJ’s news story on the speech, by Keith Johnson, is here; it has a nice roundup of expert opinion, including Mary Ellen O’Connell, the ACLU’s Jonathan Manes, CFR’s Brett McGurk, and me.

Call for Papers: Hidden Histories of War Crimes Trials

by Kevin Jon Heller


A two-day international symposium to uncover and explore some of the less well-known war crimes trials, both international and domestic.

Melbourne Law School

15th and 16th October 2010

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

Organizers: Gerry Simpson, Tim McCormack, Kevin Heller, Jennifer Balint


Deadline for Abstracts: 30th May 2010

As international criminal law matures, there has been a return to history. Intriguing research agendas have focused on the origins of international criminal law in the repression of piracy or slave-trading and on the institutional innovations found at Versailles and The Hague. Meanwhile, familiar landmarks are being revisited in order to clarify ongoing doctrinal debates (aggression at Nuremberg, conspiracy at Tokyo, and so on). Alongside all of this is increased interest in less familiar war crimes trials, both international and domestic.

The idea behind this symposium is to uncover and explore some of the less well-known – perhaps even obscure – war crimes trials. As an example, Kevin Heller, one of the organizers, will be presenting a paper on the twelve Nuremberg Military Tribunals held under Control Council Law No. 10. There will also likely be papers on the war crimes trials held in Bangladesh after the secession, on the recent genocide trial in Ethiopia, and on the post-war trials under Australian jurisdiction in the Far East.

The symposium will be held over two days. We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided. A speakers’ dinner will be held on the evening of the 15th and an informal dinner on the 16th for those who remain in town.

In addition to the organizers, confirmed participants in the symposium include Mark Drumbl and Larry May. The organizers intend to publish the papers presented at the symposium as an edited book; Oxford University Press has indicated preliminary interest.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 30th May 2010 to Gerry Simpson c/o Cathy Hutton, Administrator, APCML (c [dot] hutton [at] unimelb [dot] edu [dot] au). Doctoral students are welcome to submit abstracts.

Questions about the symposium can be directed to Kevin Heller (kheller [at] unimelb [dot] edu [dot] au)

Even More on Legal Action Against the Pope: It Looks Like It Will Happen

by Julian Ku

Another day, another chance for folks in the UK to make threats about bringing legal action against the Pope during his upcoming September visit to the UK.  The latest attack comes from noted atheists Richard Dawkins and Christopher Hitchens. It looks like the focus will be on breaking down the Pope’s head-of-state immunity defense, rather than trying to fit the sex abuse into the category of crimes against humanity. I think even this argument is very shaky, and wouldn’t fly in the U.S. because courts would give absolute deference to the executive branch’s decision to recognize the Vatican as a state, and the Pope as the head of state. But these UK lawyers are serious, they have real money behind them, so legal action will likely happen. Will the Pope take the chance and visit anyway?

Richard Dawkins and Christopher Hitchens are paying lawyers to investigate whether Pope Benedict XVI should be arrested when he visits Britain in September.

Mr Dawkins and Mr Hitchens believe the Pope should face charges for the alleged cover-up of sex abuse in the Catholic Church, The Guardian reports.

Mark Stephens, a lawyer for Mr Dawkins and Mr Hitchens, says only those with UN protection are safe.

“The Vatican is not recognised as a state in international law. People assume that it has existed for time immemorial but it was a construct of [Italian wartime leader Benito] Mussolini and, when the Vatican first applied to become a member of the UN, the US said no,” Mr Stephens told The Guardian.

“[Fellow lawyer Geoffrey Robertson] and I have both come to the view that the Vatican is not actually a state in international law. It is not recognised by the UN, it does not have borders that are policed and its relations are not of a full diplomatic nature.”

The Latest EU-Greek Bailout and Liquidity Risk

by Kenneth Anderson

Treat liquidity risk and runs on institutions as fundamentally a question of lack of information – the lack of information on the underlying financial solvency prompting flight from uncertainty.  In that case, the question following the announcement in the press yesterday of the Greek-EU bailout is not so much what it signals about liquidity, as instead what contribution it will make toward the forward discovery of Greek solvency – if any.

As many observed, in this announced deal, there is a fixed amount of money committed, rather than vague political promises.  At some 30 billion euros, plus additional commitments from the IMF, yes, of course, the effect of the announcement eases immediate liquidity fears.  What remains is what the breathing space will do to fill in the missing information about Greece’s underlying solvency.  As the WSJ’s Richard Barley says in today’s Heard on the Street:

Even the clearest, most credible part of the deal—the interest-rate mechanism—raises questions. On one level, a 5% rate for a three-year fixed-rate loan represents a concession relative to last week’s market levels. But this is still 3.7 percentage points over three-year German debt—a long way north of where the Greeks would like to be able to borrow. Indeed, if Greece were to take a 10-year loan under the package, it would be at a rate of well over 7%—the rate the market would have charged last week.

In a curious way, this may act as a floor to private-market rates. Why should a bond investor lend money more cheaply than other euro-zone governments are willing to do? After all, two-year yields on Greek debt, while down sharply from last week, are still 5.47%.

But the uncertainties over solvency in the longer term remain broadly political.  Barley goes on to discuss the political issues of contributions by EU governments – including Spain, Ireland, and others also under pressure.  But perhaps the greatest solvency uncertainty, and one which is not necessarily helped toward price discovery by means of the liquidity breathing space offered by the current funds, is whether Greece will be able to do anything near to what it has promised in the way of internal fiscal reform.

It is not a matter of an injection of liquidity, in other words, for the purpose of allowing for outsiders time to find out the “true condition” of the balance sheet of an institution.  It is far more for the purpose of allowing outsiders to assess the ability of the government to reform that already whacked-out balance sheet.  The immediate bailout funds will not last long enough to see a convincing answer to that question over the future which it necessarily entails.  So outsiders will be making an assessment of political risk into the future.  Will they believe the Greek government and Greek society?  Should anyone?

The wonder, frankly, is that news stories over the weekend were suddenly talking about Greek solvency, as though it had ever been anything other than the fundamental question.  Barley’s last point is particularly interesting – he calls for a mechanism for sovereign debt restructuring specific to the Eurozone:

The need may yet arise for a mechanism for an orderly restructuring of sovereign debt within the euro zone. Ultimately, this could strengthen the euro as an institution. Policy makers should use the time that Sunday’s deal has bought to work out what they would do if it doesn’t solve the problem—and Greece ends up following in the footsteps of Argentina, which defaulted after a decade of IMF bailouts.

(I’d be very interested to know what my favorite scholar of sovereign debt restructuring, WCL’s own Anna Gelpern, thinks about that possibility, or perhaps hear from her co-author, Mitu Gulati!  Is there any sense to talking about a specifically euro-zone sovereign debt restructuring mechanism or authority?)

An Unusual Setback for the New Jersey Nets

by Kevin Jon Heller

I rarely get to blog about the relationship between my two favorite things — professional basketball and international law — so I would be remiss if I failed to comment on the latest problem to afflict the New Jersey Nets, one of the worst teams in the NBA.  The Nets are in the process of being sold to Mikhail Prokhorov, a Russian billionaire.  As part of that process, the NBA conducted a “very extensive and stringent vetting process” regarding Prokhorov’s finances and concluded that “there was nothing that was disclosed that would cause [it] not to move forward with his application for Nets ownership.”


A New Jersey congressman says he will demand a government inquiry into Mikhail Prokhorov, the Russian billionaire poised to buy the New Jersey Nets, for his extensive business dealings in Zimbabwe — a bombshell that could blow up the $200 million team deal and threaten the future of Brooklyn’s Atlantic Yards, The Post has learned.


“This is disgusting,” Pascrell said. “Obviously, the Board of Governors of the NBA didn’t do their job properly when they vetted this deal.”

He said the project received tax-exempt bonds.

“It’s being financed partly by the taxpayer, and the public has a right to know,” he said.

Prokhorov’s Renaissance Capital investment bank has interests in the Zimbabwean stock exchange, banks, a cellphone company, mining and a swanky, private big-game reserve. The company is intertwined with Onexim, the $25 billion Prokhorov-controlled investment fund behind the deal to bring the struggling NBA team to Brooklyn.

Pascrell said he will ask the Treasury Department, which oversees the sanctions, to investigate Onexim. In 2008, Onexim became a 50 percent owner of Renaissance Capital, which has been actively investing in Zimbabwe since 2007.

According to its Web site, Renaissance Capital has offices in Manhattan and was the financial sponsor of an economic forum in the Zimbabwean capital of Harare that provided foreign investors special access to government ministers in June 2009 — which experts say is a violation of the sanctions.

I feel sorry for the Nets, but I won’t be sorry if the deal falls through because of Prokhorov’s ties to Mugabe’s regime.  Zimbabwe has never produced an NBA player, but many current players come from Africa — Cameroon, the Democratic Republic of the Congo, the Republic of the Congo, Gabon, Mali, Morocco, Nigeria (11!), Senegal, South Africa, Sudan, and Tanzania — and the NBA actively engages in outreach to the continent.  It would be an insult to everything the NBA stands for if one of its teams was owned by a man who is propping up one of the world’s worst dictators.

Maybe Debt Relief Won’t Help Poor Countries After All

by Julian Ku

The results of this new study about the ineffectiveness of international aid to certain developing countries is not surprising, but it is still depressing.

For years, the international community has forked over billions in health aid, believing the donations supplemented health budgets in poor countries. It now turns out development money prompted some governments to spend on entirely different things, which cannot be tracked. The research was published Friday in the medical journal Lancet.

Experts analyzed all available data for government spending on health in poor countries and the aid they received. International health aid jumped from about $8 billion in 1995 to almost $19 billion in 2006, with the United States being the biggest donor.

Most countries in Latin America, Asia and the Middle East doubled their health budgets. But many in Africa – including those with the worst AIDS outbreaks – trimmed their health spending instead. In the Lancet study, for every dollar received from donors, poor countries transferred up to $1.14 originally slated for their health budgets elsewhere. The research was paid for by the Bill & Melinda Gates Foundation

Moreover, debt relief for many countries is unlikely to have a positive effect either, the study suggests.

Murray’s paper also found debt relief had no effect on health spending. Activists like Bob Geldof and Bono have long argued canceling African debts would allow countries to spend more on their health problems, but there was no evidence of that.

“When an aid official thinks he is helping a low-income African patient avoid charges at a health clinic, in reality, he is paying for a shopping trip to Paris for a government minister and his wife,” said Philip Stevens, of the London-based think tank International Policy Network. He was not linked to the study.

Why the President’s Targeted Killings are Illegal (According to Professor O’Connell)

by Julian Ku

Kevin has done, and is doing, a very nice job of critiquing the legality of the Obama Administration’s targeted killing policy.  On the critical side, it is also worth noting the views of Mary Ellen O’Connell, Professor at Notre Dame, who has become a leading public critic of the legality of this policy.  Her basic point is that international law only permits such killings on the battlefield, and any killings off of the battlefield (as she defines it) are illegal acts of extrajudicial murder. This would be true whether or not the U.S. actor is a privileged combatant.  I think this makes sense, even if I doubt it is right.  It does show, however, that the Obama and Bush Administration’s policies as to the nature of this war is pretty close (and getting closer).  Because it is President Obama, and because he has folks like Harold Koh, Neal Katyal, and Marty Lederman to defend these views, I don’t think there will be nearly the same level of controversy as during the Bush years.

Federal Court Adopts “Purpose” Test for Alien Tort Statute, “Knowledge” Test for Antiterrorism Act

by Roger Alford

A federal district court in Texas has held that the Alien Tort Statute (“ATS”) requires allegations of intent to violate international law. The mere knowledge that such violation was occurring, or would occur, is insufficient to support a claim under the ATS.

The complaint in Abecassis v. Wyatt alleges that various corporations and individuals purchased oil from Iraq and made payments that violated the United Nations Oil-for-Food (“OFP”) program. The plaintiffs allege that the oil companies were involved in buying Iraqi oil with payments to a secret bank account in Jordan controlled by Hussein. Hussein used these funds from this account to make reward payments to the families of suicide bombers and others who engaged in terrorist attacks in Israel. The also allege violations of the TVPA and the Antiterrorism Act (“ATA”).

With respect to the ATS, the court dismissed the ATS claim, finding that that the requisite allegations of corporate intent to violate international law were not alleged:

It is not sufficient to allege facts showing that the defendants intended to violate the OFP or to assist Hussein in violating the OFP. That, while unlawful, is not a violation of the type of definite, universally accepted norm of international law that Sosa would include among the small set of norms giving rise to ATS jurisdiction. The allegation would have to be that the defendants acted with the purpose of assisting terrorists to murder or maim innocent civilians. No such factual allegations appears in the complaint…. The factual allegations in this case do not support a plausible inference that any defendant acted with the purpose of assisting terrorist attacks. The absence of any such allegations defeats aiding and abetting and conspiracy liability under the ATS. [pp. 51-52].

With respect to the ATA claim, the court applied a different standard, essentially a knowledge standard, but tweaked to require evidence that the defendant must know that money will be used to support terrorism against Americans:

The defendant must collect funds willfully but the only required knowledge is that the funds will be used for terrorism. Knowledge is sufficient. But … it is not enough to know the character of the ultimate organization. The defendant must know (or intend) that its money is going to a group engaged in terrorist acts or is being used to support terrorist acts…. [T]he plaintiffs have not … sufficiently alleged that any defendant had the knowledge necessary for liability. The only relevant allegations are either wholly conclusory or inadequate. The plaintiffs must allege, at a minimum, that each defendant knew that the oil it was buying through the OFP was tied to a kickback to Hussein and that Hussein was using OFP kickback money to fund terrorism that targeted American nationals…. There are no allegations that, if proven, would show that the defendants had information that Hussein was using OFP kickback money to fund terrorism targeting Americans. [pp. 67-68].

I’m not keeping score, but there seems to be a strong movement afoot for the ATS to require purposeful intent on the part of corporate defendants. With the heightened pleading standard of Iqbal, it seems increasingly likely that this standard could shut down most ATS claims. How does a plaintiff properly allege corporate intent in a complaint in order to survive the purpose test?

Will CEDAW Bring A “Radical Transformation of American Law”?

by Julian Ku

I don’t know a lot about CEDAW, the Convention for the Elimination of Discrimination Against Women, but I know that lots of groups on both sides think the treaty is really important. For instance, in this post, a critic of CEDAW quotes a proponent of CEDAW, Janet Benshoof,  for the view that:

“[W]ere the United States (US) to ratify CEDAW, it would bring about a “radical transformation of American law,” which would include overturning any abortion restrictions in domestic laws or those covering foreign activities. Further, Benshoof asserted that CEDAW doesn’t allow for any defense based on custom or religion, and that it applies to all private conduct.

I guess my (admittedly not expert) reading doesn’t see where the big transformation is.  Not to mention the treaty is almost certainly non-self-executing.  But this debate may eventually come back to us when (or if) the Obama Administration makes a final push for CEDAW (although that will probably not be until Obama’s second term, if there is a second term).

More on the Upcoming Garzon Trial: Are Amnesties Illegal?

by Julian Ku

I don’t fully understand the nature of the legal charges against Spanish Judge Baltasar Garzon. It sounds like, from this Economist article, that he is being accused of some version of “prosecutorial” and “judicial” misconduct for refusing to follow the terms of Spain’s 1977 amnesty law preventing investigations into Franco-era crimes.  Garzon apparently held that there is a consensus that amnesties are illegal under international law and therefore could not bar his assertion of jurisdiction.  This seems like a  very sketchy legal holding, but I haven’t thought about this enough to opine with any certainty.  I am fairly confident that there is no consensus that such amnesties are illegal. But whether this is enough to find misconduct under Spanish law, I have no idea. Anyone out there with links to the relevant opinions?

Let’s Call Killing al-Awlaki What It Is — Murder

by Kevin Jon Heller

The Obama administration has been savagely criticized for authorizing the CIA to use lethal force against Anwar al-Awlaki, a US citizen who is allegedly a member of al-Qaeda in Yemen.  Glenn Greewald, for example, has described the decision — justifiably — as “unbelievably Orwellian and tyrannical.”  To date, however, critics have ignored what I think is perhaps the most important point: An American who kills an American outside of the United States is guilty of murder.  Not political murder.  Not figurative murder.  Legal murder.

18 USC 1119:

(a) Definition.— In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22)).

(b) Offense.— A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.

The foreign-murder statute has to be the starting point of any analysis of the Obama adminstration’s decision to authorize the CIA to kill al-Awlaki.  If the CIA does kill him — and even if it doesn’t; see below — any CIA operative involved in the killing who is American is presumptively a murderer.  The only questions would be (1) whether for some reason 18 USC 1119 would not apply, and (2) whether the CIA operative would have a plausible defense if he was charged with murder in federal court.

1. Does 18 USC 1119 Apply?

There are three possible arguments as to why the foreign-murder statute would not apply.  The first is that, if al-Awlaki were killed on the battlefield — i.e., during an armed conflict — US criminal law, including 18 USC 1119, would be displaced by international humanitarian law (IHL).  That might be the case, for example, if an American CIA operative killed al-Awlaki in Afghanistan, which qualifies as an international armed conflict.  Even in such a situation, however, IHL would protect a CIA operative only insofar as he qualified as a lawful combatant.  If he qualified as a lawful combatant, he would possess a combatant’s privilege to kill.  But if he did not qualify as a lawful combatant, he would not be privileged to kill and killing al-Awlaki could be prosecuted in federal court under US criminal law — under 18 USC 1119 in particular.

Whether an American CIA operative would qualify as a lawful combatant in Afghanistan is a complex question.  I take it as a given that an operative who directly killed al-Awlaki, such as a CIA sniper, would not qualify as a lawful combatant.  I doubt many CIA field operatives carry their arms openly and distinguish themselves from the civilian population.  The more difficult situation would be one in which a CIA operative killed al-Awlaki remotely, using a drone.  Personally, I don’t believe the issue of whether someone qualifies as a lawful combatant depends upon the weapon they use in combat. If the person who uses the weapon does not qualify as a lawful combatant, it should make no difference how high-tech his weapon is.  But I could be convinced otherwise.

This argument, of course, depends upon the assumption that al-Awlaki would be killed in the context of an international armed conflict.  If he was killed outside of international conflict — in Yemen, for example — IHL would not apply and thus would not displace US criminal law…

A New START Treaty and Protocol

by Duncan Hollis

Putting aside events in Kyrgyzstan (which certainly bear close watching), the day’s big news for international lawyers was President Obama and Russian President Dmitri A. Medvedev signing two related international agreements on the reduction of nuclear armaments. The State Department has posted the originals of this new START treaty here (see here for the longer, more detailed Protocol to that treaty).  I’ll leave for later any substantive commentary on these agreements or their national security/foreign relations implications.  For now, let me give a quick kudos to whoever at the State Department managed to get these documents posted so quickly.  For years the major problem in U.S. treaty practice was getting access to copies of U.S. treaties.  The fact this treaty was signed and made publicly available only a few hours later suggests such information access problems are (hopefully) behind us.  Now, if they could only modernize the font — really, Courier typeface is such a relic of the Cold War.

Garzon Formally Charged for Exceeding Jurisdiction, Could Be Suspended Within Days

by Julian Ku

We knew this was coming, but still it is a big deal:

MADRID — The Spanish judge who became an international hero by going after Augusto Pinochet and Osama bin Laden was indicted Wednesday for having dared to investigate what is arguably Spain’s own biggest unresolved case: atrocities committed during and after its ruinous Civil War.

Baltasar Garzon was charged with knowingly acting without jurisdiction by launching a probe in 2008 of tens of thousands of wartime executions and disappearances of civilians by forces loyal to Gen. Francisco Franco. The crimes were covered by a 1977 amnesty.

Garzon does not face jail time but if convicted he could be removed from the bench for 10 to 20 years. A conviction would effectively end Garzon’s career as a judge, his attorney has said.

The indictment by Luciano Varela, an investigating magistrate at the Supreme Court, marks a devastating fall from grace for one of Spain’s most prominent and divisive public figures and a man well-known overseas for his cross-border justice cases.

Garzon, 54, is a hero to leftists and international human rights groups like Amnesty International, but he is a headline-loving egotist with a grudge against the right in the eyes of Spanish conservatives. He has prosecuted people ranging from Islamic extremists to Basque separatists to Argentine “dirty war” suspects, and has many political enemies.

Garzon will probably be suspended from his post at the National Court in a matter of days and a trial could start as early as June, Garzon’s lawyer Gonzalo Martinez-Fresneda told AP Wednesday.

A Question About Targeted Killing

by Kevin Jon Heller

As the Washington Post notes, the Obama administration has authorized the CIA to assassinate Aulaqi wherever he is found.  It is very unlikely that CIA agents qualify as lawful combatants — they don’t distinguish themselves from the civilian population, they don’t carry their arms openly, etc.  So, let’s assume that CIA agents manage to kill Aulaqi in Afghanistan.  I assume everyone would be okay with Afghanistan capturing and prosecuting those agents for murder?  They would have no combatant’s privilege, and “self-defense” would only (at best) prohibit Afghanistan from claiming that the US committed an internationally wrongful act.


NOTE: I should make clear that I am interested in situations in which the US is relying on IHL, not “self-defense,” to justify targeted killing — situations in which the US argues that the individual in question was directly participating in hostilities and was thus a lawful target for lethal military force.  My point is simply that, even if we assume the existence of an armed conflict and that the target was directly participating in hostilities and was thus not a civilian at the moment he was killed, a CIA agent could be prosecuted for murder under domestic criminal law even though a US soldier could not, because only the latter would have had a combatant’s privilege to kill.  I take it as fairly obvious that if IHL does not apply — and the US’s argument that we are in an amorphous global armed conflict with Al Qaeda is no less incorrect when made by Obama than it was when made by Bush — anyone who used lethal force against a “terrorist,” CIA or US military, could be prosecuted for murder in a domestic court with jurisdiction over the crime. As Marko has pointed out, the US’s alternative claim of “self-defense” might prevent the state whose territory was the object of the attack from claiming that the US violated its sovereignty. But it would not provide the killer with a defense to a criminal charge.

The Constitutionality of President Obama’s Targeted Killing of U.S. Citizens

by Julian Ku

The NYT reports that the Obama Administration has authorized the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, The article notes the international law justification for his killing: he is an avowed member of Al Qaeda actively engaged in hostilities against the U.S.  Under either the law of armed conflict or the general law of self-defense, the Administration probably has the legal authority to kill him.  (Unless international human rights law applies, but the administration plainly believes this law does not apply). 

But, as I noted here a few months ago, this international law analysis does not answer questions about al-Awlaki’s constitutional rights.  Under U.S. Supreme Court precedents, U.S. citizens often can invoke constitutional rights against the U.S. government, even when they are abroad. (See Reid v. Covert). Maybe this is a situation where granting constitutional protections would be, as Justice Harlan  suggested, “impracticable and anomalous.”  It certainly seems that way, and I assume the Obama Administration has concluded that the Constitution does not apply.  Alternatively, the Constitution might apply, and the theory is simply that al-Awlaki’s rights substantive and procedural Due Process rights are not being violated.  This seems a harder argument to make, and it would be fascinating to see someone (like Harold Koh again?) make it.

Bashir Was Ready to Step Down Before the Arrest Warrant? Really?

by Kevin Jon Heller

That’s what Rob Crilly claims in an editorial today in the Telegraph:

Before he was indicted, Bashir told regional leaders and his confidantes that he was ready to step down: after 20 years in office, he was ready for a holiday, and retirement to a smart new villa in the north of Khartoum. Now, fearing arrest by a new regime, he has promised his inner circle that he will fight on.

I have never heard this claim before, and Crilly provides no support for it.  I’m skeptical, particularly given that Crilly is a leading proponent of the “blame the ICC and the NGOs, not Bashir” movement.  He describes Bashir in the article, for example, as a “pragmatist” who is not “the monster of popular imagination.”  (Apparently, he is just misunderstood by all those mean prosecutors and activists.)  But I’m willing to be convinced.

Anybody out there know whether Crilly’s claim is accurate?

UPDATE: An intrepid reader contacted Crilly, who replied, “He said it on at least three different occasions. Sources rock solid.”  Crilly did not identify the sources, and I remain skeptical.  Even if Bashir said it, though, it is difficult to believe that he meant it.  If Bashir had communicated a genuine willingness to step down to the ICC, I think it’s safe to say that the OTP would have been willing to not bring charges against him.

UPDATE 2: Crilly has a short blog post on Bashir’s alleged statement here.  He says he has been sitting on the information for a while — why, I don’t know.

ASIL Book and Article Awards

by Kevin Jon Heller

The American Society of International Law recently awarded its annual certificates and prizes for scholarship in international law.  A number of the winners have either been involved in OJ symposia or are friends of the blog, so I want to acknowledge their achievements here:

Certificate of Merit in a specialized area of international law: Mark Osiel, “The End of Reciprocity: Terror, Torture, and the Law of War” (Cambridge Univ. Press 2009).

Francis Deák Prize: Jacob Katz Cogan, “Representation and Power in International Organization: The Operational Constitution and Its Critics,” 103 AJIL 209 (2009).

Lieber Prize (article): Robert Sloane, “The Cost of Conflation: Preserving the Dualism of the Jus ad Bellum and the Jus in Bello in the Contemporary Law of War,” 34 Yale Journal of International Law 47 (2009).

Lieber Society Military Prize: Sean Watts, “Combatant Status and Computer Network Attack,” 50 Virginia Journal of International Law 329 (2010).

Congratulations to Mark, Jacob, Robert, and Sean!  (And to all the other winners, whose awards you can find at Jacob’s blog here.)

More Ideas on How To Battle Pirates: “Blockade” Somalia

by Julian Ku

Here’s another interesting report on the ongoing battle against Somalia-based pirates.  The upshot: some progress is being made, especially with private security forces (including one which uses sound waves to push away approaching pirates).  But legal limitations continue to limit the effectiveness of both naval and private self-defense.

“No commanding officer of any ship wants a situation where he used force and then is told a week later that he shouldn’t have.  That he violated the rules and under international law maybe murder would be applied to that.  It’s a dangerous line to cross,”

One former naval officer suggests creating an in-shore “maritime police” force.

“The proposal is send the warships home.  And let’s get an international task force together of maritime police and put them inside Somali territorial waters under U.N. auspices, with a U.N. Security Council resolution giving them authority,”

Explaining American Foreign Policy: Obama’s Liberal Internationalism v. Bush’s Neoconservativism

by Julian Ku

Walter Russell Mead has an illuminating post on the liberal internationalist tendencies of the Obama Administration.  Putting aside whether or not liberal internationalism is, as Mead puts it, “a strategic mistake that leads a lot of people inside the administration and well beyond it to make consistently bad decisions about American foreign policy.”, I find his post fascinating for its classification of different approaches to foreign policy and international law.  According to Mead, foreign policy decision makers in both the Bush and Obama administration arein favor of the promotion of liberal democracy and human rights. The real difference is how to do so: neoconservativism tends to support unilateral or at least liberal coalitions acting alone whereas liberal internationalists are deeply committed to international institutions and their legal processes. Anyway, something worth keeping in mind. I wonder if “liberal internationalism” will ultimately acquire the same kind of negative connotation that neoconservatism currently has.

Spoils of War and The Golden Tablet of Ishta Temple

by Roger Alford

<br />“An ancient gold tablet, discovered during archaeological excavations in 1913 in the Ottoman Empire, disappeared from a Berlin museum in the immediate aftermath of World War II and reappeared almost sixty years later in the safe deposit box of a Holocaust survivor.” So begins In re Flamenbaum, a case that reads like a Hollywood movie script.

As reported here, “the gold tablet was found during an excavation around the city of Ashur, now Qual’at Serouat, Iraq, by a team of German archeologists led by Walter Andrae. The inscribed tablet, which was discovered in the foundation of the Ishta Temple, is actually a construction document, according to the judge. It dates to the reign of the Assyrian King Tukulti-Ninurta I (1243-1207 BCE) who expanded the Assyrian empire but was later killed by his son. When the excavations finished in 1914, the tablet was packed up along with other artifacts and sent to Basra, where it was loaded on a Germany-bound freighter…. In 1934, the tablet was put on display at the Vorderasiatisches Museum…. Five years later, with World War II looming, the museum was closed and the tablet was put in storage along with other antiques and works of art. At the end of the war in 1945, an inventory discovered that the tablet was missing. Nearly 60 years later, in April 2003, the tablet was discovered among the possessions of Riven Flamenbaum, of Great Neck, N.Y., after his death at the age of 92.”

The court rejected the museum’s claim under the doctrine of laches, but in so doing it left unresolved a fascinating international law question pertaining to spoils of war and prohibitions against pillaging and plundering. Here is how that issue was articulated by the court:

If only self-executing meant what it sounds like it means . . .

by Duncan Hollis

I figure it’s never too late to catch up on some of last week’s April 1 reporting.  The Harvard Law Record got a great “scoop” with this story:

Speaking to a lunch seminar held by the National Security Law Association, Senator James Inhofe of Oklahoma, a member of the Senate Foreign Relations Committee, was shocked to discover that the term “self-executing” did not exactly mean what he had imagined when he voted for a new arms reduction treaty with Russia earlier this year.

Inhofe, a Republican, approved the treaty on the belief that the “self-executing” language had been sneakily inserted by members of his party in order to make the law ineffective upon passage.

“Wait, what?” the 75 year old lawmaker, who has served in the Senate for 16 years, exclaimed. “I literally thought ‘self-executing’ mean that the law would be dead on arrival. Well, this is embarrassing,” he admitted to the audience, which consisted primarily of law students and a reasonable number of Cambridge hobos, many of whom were the most amused at Inhofe’s error.

“I mean, this is pretty much foreign relations law 101,” said Jack McGrinty, a begging fixture in Harvard Square. “I bet he doesn’t even know the Senate has ultimate treaty-making authority. Well, at least this chump’s ignorance at least means that we now live in a safer world, for once”. He later added, “spare some change?”

All joking aside, I wonder how many U.S. Senators actually know what it means for a treaty to be non self executing  (or what criteria identify such treaties)?  They do have the advice and consent power after all.  On the other hand, a uniform definition may be pretty hard to come by when academics can’t even agree on a single definition, or two, or three, or four, or . . . well you get the idea.

Another Reason for the ICC to Formally Investigate Afghanistan

by Kevin Jon Heller

So, it turns out that the US military was lying through its teeth when it claimed that the three Afghan women murdered during a “bungled” Special Operations attack in Afghanistan six weeks ago were not killed by NATO — read: American — forces:

NATO military officials had already admitted killing two innocent civilians — a district prosecutor and local police chief — during the raid, on a home near Gardez in southeastern Afghanistan. The two men were shot to death when they came out of their home, armed with Kalashnikov rifles, to investigate.

Three women also died that night at the same home: One was a pregnant mother of 10 and another was a pregnant mother of six. NATO military officials had suggested that the women were actually stabbed to death — or had died by some other means — hours before the raid, an explanation that implied that family members or others at the home might have killed them.

Survivors of the raid called that explanation a cover-up and insisted that American forces killed the women. Relatives and family friends said the bloody raid followed a party in honor of the birth of a grandson of the owner of the house.

On Sunday night the American-led military command in Kabul issued a statement admitting that “international forces” were responsible for the deaths of the women. Officials have previously stated that American Special Operations forces and Afghan forces conducted the operation.


The admission was an abrupt about-face. In a statement soon after the raid, NATO had claimed that its raiding party had stumbled upon the “bodies of three women who had been tied up, gagged and killed” and hidden in a room in the house. Military officials had also said later that the bodies showed signs of puncture and slashing wounds from a knife, and that the women appeared to have been killed several hours before the raid.

And in what would be a scandalous turn to the investigation, The Times of London reported Sunday night that Afghan investigators also determined that American forces not only killed the women but had also “dug bullets out of their victims’ bodies in the bloody aftermath” and then “washed the wounds with alcohol before lying to their superiors about what happened.”

Not surprisingly, the US is denying The Times‘ claim about the bullets.  Given its willingness to lie about who killed the women, though, that denial should be taken cum grano salis.  Regardless, the incident provides yet another reason for the OTP to open a formal investigation into the situation in Afghanistan. I noted in my September post on the OTP’s preliminary investigation that it would be difficult for the ICC to prosecute US and NATO soldiers for crimes in Afghanistan, because most of the highest-profile acts involved attacks that caused significant collateral damage, which are almost impossible to prosecute as war crimes under Article 8(2)(b)(iv) of the Rome Statute.  The same cannot be said, however, of the murder of the women.  NATO claims that its investigators have concluded “that the women were accidentally killed as a result of the joint force firing at the men.” That self-serving claim, however, is belied by its own earlier claim that its forces had discovered “bodies of three women who had been tied up, gagged and killed.”  Perhaps they were accidentally tied up and gagged, too?  In any case, the murders may well qualify as the war crime of wilful killing, Article 8(2)(a)(i) of the Rome Statute.  Removing the bullets could also arguably qualify as the war crime of “committing outrages upon personal dignity,” Article 8(2)(b)(xxi).  Neither war crime is anywhere near as difficult to prove as the war crime of launching a disproportionate attack.

Let me be clear: I do not believe that the OTP should open a formal investigation into Afghanistan simply because of this one incident.  Nor do I believe that US and NATO forces should be the focus of such an investigation.  What I do believe is that an Afghanistan investigation should take a close look at the murder of the women, as well as at the numerous instances of torture at Bagram by US soldiers.  The US would no doubt go into conniptions at the prospect of one of its soldiers being prosecuted, but that should not dissuade the OTP.  The costs of losing the US’s desultory cooperation with the ICC would be far outweighed by the benefits of demonstrating once and for all that the Court is neither obsessed with Africa nor a tool of Western colonial powers.

The U.S. Senate (Sort of) Backs Morocco in the Western Sahara

by Julian Ku

It’s not exactly a hot topic, even among international lawyers, yet the ongoing dispute over the Western Sahara (and Morocco’s claim to it) has drawn the attention of 54 U.S. Senators, who recently sent a letter to U.S. Secretary of State Clinton about it favoring support for Morocco’s 2007 proposal for autonomy in the disputed region. This analysis claims the letter’s approach would trample on the people of the Western Sahara’s right to self-determination.  I don’t think it’s that clear cut, but it is interesting to see the U.S. Senators even getting involved in this fight. Does Morocco have lots of really good lobbyists?

Drone Warfare and the Koh Speech – A Roundup of Links

by Kenneth Anderson

It’s not true that everything I do is about drone warfare, but it has taken a lot of my time lately and, of course, a lot of stuff is happening, both on the operational side as well as legal side.  So here’s a little round-up of links, more or less at random.

Continue Reading…

More on Suing the Pope: Maybe He Should Avoid Britain for a While

by Julian Ku

Happy Easter, everyone!  I recognize this is a bit of an unpleasant topic to bring up on a holy day, but it is worth noting that the rumblings about litigation against the Vatican and the Pope over the various child-sex-abuse scandals continue.  Lawyers in the UK are actively researching how and whether to bring legal action during the Pope’s upcoming visit.  As commenters to my earlier post have pointed out, any claim against the Pope himself, or the Vatican, under international law seems fairly sketchy.  But a lawsuit might still be filed. From the AP:

Protests are growing against Pope Benedict XVI’s planned trip to Britain, where some lawyers question whether the Vatican’s implicit statehood status should shield the pope from prosecution over sex crimes by pedophile priests.

More than 10,000 people have signed a petition on Downing Street’s web site against the pope’s 4-day visit to England and Scotland in September, which will cost U.K. taxpayers an estimated 15 million pounds ($22.5 million).

The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.

Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.

Can We Stop Arguing About Whether a “Genocide” Occurred?

by Julian Ku

Genocide is one of those phrases with both highly potent political ramifications as well as highly complicated legal requirements.  These two characteristics, GUÉNAËL METTRAUX argues in the IHT, make the obsessive focus on whether something is or is not a genocide (Armenia? Srebenica?) a largely hopeless and unhelpful exercise for historical events.

The very proposition that legal concepts such as genocide could ever adequately measure and reflect the intricacies of such historical events could itself be questioned. International criminal law, which includes genocide, provides for ways to criminalize the conduct of individuals who have taken part in mass atrocities — not for passing judgment on history.

Even if it were capable of this, the law is likely to provide some support for both sides and might therefore contribute to grinding the process of healing historical wounds to a slow and divisive ethnic or religious standstill rather than to help resolve anything.

The debate surrounding the use of the word “genocide” has made the nations involved hostages of a legal issue that they seem unable to resolve. Better, it seems, for them to focus on recording and recognizing facts that are undeniable historical truths and leave the debate over the legal characterization of these events for another day. Future generations of Turks and Serbs would be grateful to have been freed from the burden of explaining, defending or arguing over crimes that they have no responsibility for.

Is Karl Rove a War Criminal? Don’t Look to FP for the Answer!

by Kevin Jon Heller

I love Foreign Policy’s blog, Passport.  Along with Democracy Arsenal, it’s one of the two best blogs for analysis of (duh) US foreign policy.  Which is why I was shocked to read a recent post by Andrew Swift entitled “Is Karl Rove a War Criminal?”, because Swift’s analysis would make a first-year law student blush in embarrassment.  Here is how he critiques recent allegations by Code Pink and other groups that the answer to the titular questions is “yes”:

But onto the real question: Is Karl Rove a war criminal? The Fourth Geneva Convention of 1949 reads:

Art. 146. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article…

Art.147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

Given that Rove, a political and communications strategist, was in no position to authorize any use of military force, and had no authority to order detention or interrogation policies, it’d seem that he does not in anyway qualify as a war criminal. Looks like these protesters need to get a new line.

There are, to put it mildly, a few problems with this analysis.  First, the Fourth Geneva Convention isn’t a criminal statute; it is a treaty that obligates states to enact domestic legislation criminalizing the grave breaches in Article 147.  Why Swift quotes it instead of either the Rome Statute or federal criminal laws such as the torture statute (18 USC 2340) is beyond me.  Second, has Swift never heard of those pesky little things called “theories of liability” or “modes of participation in a crime”?  Criminal liability is not limited to those who “order” crimes.  One can also instigate crimes, aid-and-abet crimes, conspire to commit crimes, participate in a joint criminal enterprise that involves the commission of crimes, and so forth.

Has Karl Rove committed an international crime or violated federal criminal law by participating in the US’s detention and interrogation policies?  I have no idea.  But I do know that we can’t rule out the possibility that Rove is a war criminal by citing the Geneva Conventions and asking whether he ordered the commission of one of its grave breaches.

Looks like Swift needs a new line, not the protesters.

Can the Pope Be Sued? Maybe…

by Julian Ku

I don’t know if I buy this article’s suggestion that the various Catholic Church priest-pedophile scandals amount to a “crime against humanity” under international law, but I do think the Pope’s right to “head of state” immunity under international law is a tough question.  In the U.S., the Pope has been granted head of state immunity (thanks to President Bush and then Legal Adviser John Bellinger), but it is far from clear that he enjoys such status in other countries or under international law generally. And can he at least be deposed, as these U.S. litigants are demanding?

Well may the pope defy “the petty gossip of dominant opinion“. But the Holy See can no longer ignore international law, which now counts the widespread or systematic sexual abuse of children as a crime against humanity. The anomalous claim of the Vatican to be a state – and of the pope to be a head of state and hence immune from legal action – cannot stand up to scrutiny.

[Bellinger’s opinion] hinges on the assumption that the Vatican, or its metaphysical emanation, the Holy See, is a state. But the papal states were extinguished by invasion in 1870 and the Vatican was created by fascist Italy in 1929 when Mussolini endowed this tiny enclave – 0.17 of a square mile containing 900 Catholic bureaucrats – with “sovereignty in the international field … in conformity with its traditions and the exigencies of its mission in the world”.

The notion that statehood can be created by another country’s unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage. …

Will the International Whaling Commission Survive the Australia-Japan Showdown?

by Julian Ku

This is probably just posturing, but it would be a rather dramatic turn of events if the IWC ended up a casualty of the vociferous Australian campaign against Japanese whaling.  I see the Kiwis are trying to play mediator.

The international body to control whaling worldwide could collapse if a deal cannot be reached to allow restricted commercial whaling, New Zealand’s representative said Thursday.

Former New Zealand prime minister Geoffrey Palmer, who chairs an International Whaling Commission (IWC) group trying to negotiate a deal, said the IWC could fall apart.

“I think there is a big risk of that and I don’t relish it,” Palmer told reporters in Wellington.

Negotiations start next week in DC and the big date is April 22 for a deal to go forward to the annual IWC meeting. Stay tuned!

A Powerful Dissenting Opinion on the ICC’s Decision to Authorize an Investigation into Kenya

by Julian Ku

When the ICC Pre-Trial Chamber approved the Prosecutor’s request for authority to investigate alleged “crimes against humanity” in Kenya, I didn’t notice this long and powerful dissenting opinion (around p. 84) by one of the judges (Hans-Peter Kaul).  The standard for authorizing an investigation is pretty easy to satisfy (at least it sounds that way to me), so the dissent here was striking.    I’ll leave it to others to decide as to whether Judge Kaul is right (check out the ICC’s new YouTube channel for more discussion). He sure has me halfway convinced.  Some choice excerpts (emphasis added) after the jump.

Oops! Australian Federal Police Lose Alleged War Criminal

by Julian Ku

Not a funny April Fool’s Day joke, although it sort of sounds like one. Any of our readers in Coffs Harbour, NSW, please check out your window and give the Australian Federal Police a hand.

THE Australian Federal Police are continuing to frantically search for an Australian accused of war crimes, after a five-year legal battle ended with the High Court ruling that an arrest warrant for him be reinstated and he be extradited to Croatia.

AFP officers this morning were again at Mr Dragan Vasiljkovic’s last known residence in the rural hilly rainforest of Boambee, near Coffs Harbour on the NSW central coast.

Should the U.S. Annex Haiti? And Make Bill Clinton Governor?

by Julian Ku

Interesting discussion of innovative ways to deal with Haiti’s long-term problems.  Haiti is very close to a failed state. So it’s time to think big. Here are four out of the box choices:  1) A New Haitian Constitution; 2) UN Trusteeship; 3) U.S. Protectorate; 4) U.S. annexation and status as a territory.  Read the whole article. I actually think that in a free and fair election, options 3 and 4 might prevail.  And I think option 4 might achieve the best results long term for Haiti.  But getting the U.S. Congress to agree, that’s another matter. In any event, I assume instead we’ll go with option 5): an almost-failed state propped up by tons of outside aid with no long term prospects of stability or growth.

Ecuador Rejects Arbitration Award

by Julian Ku

This is not surprising, although I doubt they have much a legal basis to resist enforcement.

Ecuadorean officials are rejecting an international arbitration tribunal’s ruling that it violated international law and must pay $700 million to the ChevronCorp.

President Rafael Correa’s administration is analyzing options for appeal under national and international law, Attorney General Diego Garcia said in a statement Wednesday.

“This new effort to compromise the Ecuadorean state in its firm commitment to respect the independence of its judicial system … will not succeed,” Garcia said.

ICC Judges Approve Investigation of Kenya

by Julian Ku

Add another African case to the ICC’s docket.

The International Criminal Court in The Hague, Netherlands, has given its prosecutor Luis Moreno Ocampo the green light to investigate the role of senior politicians in Kenya‘s post-election violence that killed 1,300 Kenyans in 2008.

The decision allows Mr. Ocampo to take the next step, which would be passing down indictments against senior Kenyan politicians, some of whom are thought to be ministers and cabinet members in the powersharing government of President Mwai Kibaki and Prime Minister Raila Odinga.