June 2010

Foreign Law Watch, Kagan Edition

From the AP account of the Kagan confirmation hearing of the now presumably de rigueur question of candidates ...

Morrison: The Fastest Reversal Ever (?) of a U.S. Supreme Court Decision

I wanted to thank all of the contributors (Bill Dodge, Austen Parrish, Margaret Sachs) to our discussion here about the recent Supreme Court decision on the extraterritorial application of U.S. securities laws in Morrison v. National Australia Bank. I wanted to also point readers toward some very wise and interesting comments on the decision from Prof. Hannah Buxbaum (over...

Introducing the Newest Member of the ICJ: Xue Hanqin (薛捍勤)

[caption id="attachment_12870" align="alignright" width="300" caption=" "][/caption] The U.N. General Assembly and Security Council today voted to elect Xue Hanqin (薛捍勤) of China to membership on the International Court of Justice.  Xue will fill out the rest of the Judge Shi Jiuyong's term, which runs until 5 February 2012.  As I noted before, Xue has an extensive experience as a diplomat as well as...

Gabriella Blum and Philip Heymann on Targeted Killing

Harvard professors Gabriella Blum and Philip Heymann have a new, short article online at the Harvard National Security Law Journal (which, by the way, is doing many interesting things), Law and Policy of Targeted Killing (June 27, 2010).  A version of it will appear as a chapter in their forthcoming book on terrorism and counterterrorism.  It is a fine essay, not over-long, and well worth reading if you at all take an interest in these topics.  Here is a little bit from the introduction (continued below the fold):

More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and addressing it as war.  The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty.  In law enforcement, individuals are punished for their individual guilt.  Guilt must be proven in a court of law, with the individual facing trial enjoying the protections of due process guarantees. Killing an individual without trial is allowed only in very limited circumstances, such as self- defense (where the person poses an immediate threat) or the immediate necessity of saving more lives.  In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder.

A Final Thought on Mark Janis’ ‘America and the Law of Nations’

Having now finished America and the Law of Nations, let me add one more thought.  I had originally been interested in this book principally for the period between the world wars; my work on the UN has given me a long interest in the collective action failures of the League, and attempts to judicialize aggression as a crime at the ICC has likewise given me an interest in earlier attempts to outlaw war, e.g., Kellogg-Briand.  But instead I find that the chapter that most captured my attention was Chapter 4, "Dodge, Worcester, Ladd, and Burritt: Christianity, Courts, and World Peace." That chapter argues that to "a surprising extent, the international courts of today are the offspring of nineteenth-century American utopians, religious enthusiasts by and large untrained in the law."  (p. 72.)  Antebellum Americans, at that.   Given my own steeping in the European history of the later 19th century and the founding of the ICRC, I had always assumed that, to the extent there was what today we would call a transnational social movement toward these kinds of utopian impulses, they would have been centered in Europe.  Locksley Hall, The Parliament of Man, all that.  I would not have guessed that fifty years or more before, the provincial, remotely located Americans would have been making waves in these matters.  But Janis makes a strong scholarly case that antebellum American religious progressivists played a deep and wide role in fostering the spirit of internationalist utopianism that embraced the idea of international tribunals. But note - and I think this remains relevant today - that historically this progressive movement was located within, and was sheltered by, a still larger, or at least more transcendentally motivating, universalist utopianism - Christianity itself.  It is not, so far as I can understand from Professor Janis's account, the form of disconnected, deracinated cosmopolitanism that is sometimes urged as the basis for liberal internationalism today.  Perhaps we have come so far, in the progression of culture, technology, and ever more expansive idealism that the mediating universalisms such as religion can be set aside, but I rather doubt it. Rather, the risk of today's deracinated cosmopolitan-liberal internationalism is, on the one hand, that it cannot and does not succeed on its own terms - but still manages to neuter, on the other, the one form of large scale political organization that has shown itself itself, even with its many failures, able to deliver to those it governs, the nation-state - particularly expressed as liberal, democratic, and secular (in the sense of divided public-private).  Vive Westphalia, &tc. ps.  Reading over the comments, it seems as good a time as any to quote from Thomas Berger:

"Address me not in Christian sentiments," said the Lady of the Lake, "the which I find too coarse for fine kings.  Thine obligation was to maintain power in as decent a way as would be yet the most effective."

The irony, of course, is that the Lady offers Arthur a nearly pitch-perfect expression of Niebuhrian Christian moral realism.

Morrison and the Effects Test

[William S. Dodge is a Professor of Law at the University of California, Hastings College of the Law. One of his articles on extraterritoriality was cited in Justice Stevens’s concurring opinion.] There is no doubt that Morrison v. National Australia Bank is a landmark opinion, not just because the Supreme Court addresses here, for the first time, the extraterritorial reach of...

ECtHR Finds No Right to Same Sex Marriage: Will U.S. Courts Follow Their Lead?

Marko Milanovic over at EJIL Talk! has a nice discussion of a recent European Court of Human Rights Chamber decision (Schalk and Kopf v. Austria, no. 30141/04) finding that denying same-sex couples the right to marry does not violate a member state's obligation under the European Convention of Human Rights. The analysis is complicated, but one part of it is striking...

Reading a Couple of Books on Legal History, and a Comment on Fragmenting International Law

Flying around on various airplanes, I've been reading a couple of books on topics in legal history that I've found enjoyable and intellectually profitable.  One is Stephen Neff's Justice in Blue and Gray: A Legal History of the Civil War. I have benefitted greatly from Professor Neff's earlier books in international law history, War and the Law of Nations and The Rights and Duties of Neutrals, and the Civil War book is no exception.  Professor Neff (whom I had the pleasure of meeting earlier this summer as he is visiting at George Washington this term) is one of the most graceful writers in the field - he reads much less like a law professor; he writes as a sophisticated historian writing for a sophisticated but not specialized audience.  He wears his vast learning lightly and without pedantry. The second book is one that arrived as a review copy from Oxford, Mark Weston Janis' America and the Law of Nations 1776-1939.  Professor Janis is likewise an elegant and fluid writer, and, just having finished this not-too-long book, I'm enthusiastic.  (It is usefully accompanied by his earlier book, which I read back when it came out in 2004, The American Tradition in International Law: Great Expectations, which ran up through 1914.) I am not an expert in US foreign relations law, let alone its history, and both of Professor Janis' books opened my eyes to a great deal of background.  The new volume helps frame the history, finally, as it leads up to the era of the United Nations.  It does so by ranging from international law's place in US 19th century legal opinions and diplomatic writing to the role of incipient Wilsonian international organizations - rise and collapse - up through WWII.  Excellent book, congratulations to Professor Janis.

Morrison and Extraterritoriality: More Thoughts

[Austen Parrish is a Professor of Law and Vice Dean at Southwestern Law School.  His scholarship focuses on extraterritoriality and the uses of domestic law and courts to resolve transboundary challenges.] The decision is yet a day old, and already much has been said about Morrison.  As Julian notes, there is a lot to ponder in the case.  But some quick...

Justice Department Comings and Goings

The Times and others are reporting that current Acting Head of the Office of Legal Counsel (OLC) at the Department of Justice, David Barron, will be leaving his post this summer to head back to his professorship at Harvard Law School. (OLC rose to national prominence during the last administration as the home of John Yoo and colleagues, who...