September 2010

Something that our European readers have already probably heard as it is one of the most viewed stories on the BBC website (but not so much here in the U.S.), the Basque separatist terrorist organization ETA has renounced (at least for now) the use of violence:  Armed Basque separatist group Eta says it will not carry out "armed actions" in its campaign for...

As you may remember from my previous post on this topic, Kirsan Ilyumzhinov, the President of the autonomous republic of Kalmikia the President of FIDE (the world chess federation), has been named in a suit before the Court of Arbitration for Sport seeking the disqualification of his FIDE candidacy. While that case is still set to be argued next week, he has announced...

Mike Scharf and Paul Williams have published an interesting collection of recollections and colloquys among all ten living State Department legal advisers, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser, released by Cambridge UP earlier this year.  In addition to essays from each, recounting particular episodes from their tenures, there...

Columbia University historian Samuel Moyn has a new book out, The Last Utopia: Human Rights in History (Harvard/Belknap).  I haven't read it - but I have ordered it from Amazon! - and I'm sure I'll have more to say about it once I've read it.  However, it received a positive (and quite interesting in its own right) review from Brendan Simms, a well-known Cambridge international relations professor, in the Wall Street Journal.  And Professor Moyn has written a summary of the book's argument that appears as an article in this week's Nation.  The Nation piece is good reading on its own, and this part drew my attention:
Beginning in the 1990s, when human rights acquired a literally millennial appeal in the public discourse of the West during outbreaks of ethnic cleansing in Southeastern Europe and beyond, it became tempting to treat 1948 as a moment of annunciation, with large political consequences. Carter, and the 1970s, were rarely mentioned. It became common to assume that, ever since their birth in a moment of postgenocidal revulsion and wisdom, human rights had become embedded slowly but steadily in humane consciousness in what amounted to a revolution of moral life. In a euphoric mood, high-profile observers like Michael Ignatieff believed that secure moral guidance, born of incontestable shock about the Holocaust, was on the verge of displacing self-interest and power as the foundation of international relations. In Samantha Power's "A Problem From Hell": America and the Age of Genocide (2002), Raphael Lemkin, who crafted the draft resolution of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was dusted off as a human rights sage and hero, with Carter earning attention only for failing to intervene against Pol Pot's atrocities. In fact, when "human rights" entered the English language in the 1940s, it happened unceremoniously, even accidentally. Human rights began as a very minor part of a hopeful alternative vision to set against Adolf Hitler's vicious and tyrannical new order. In the heat of battle and shortly thereafter, a vision of postwar collective life in which personal freedoms would coalesce with more widely circulating promises of some sort of social democracy provided the main reason to fight the war. It's important to enumerate what human rights, in the 1940s, were not. Ignatieff was wrong. They were not a response to the Holocaust, and not focused on the prevention of catastrophic slaughter. Though closely associated with the better life of social democracy, only rarely did they imply a departure from the persistent framework of nation-states that would have to provide it. Above all, human rights were not even an especially prominent idea. Unlike later, they were restricted to international organization, in the form of the new United Nations. They didn't take hold in popular language and they inspired no popular movement. Whether as one way to express the principles of Western postwar societies or even as an aspiration to transcend the nation-state, the concept of human rights never percolated publicly or globally during the 1940s with the fervor it would have in the '70s and the '90s, including during negotiations over the Universal Declaration. What if the 1940s were cut loose from the widespread myth that they were a dry run for the post–cold war world, in which human rights began to afford a glimpse of the rule of law above the nation-state? What if the history of human rights in the 1940s were written with later events given proper credit and a radically different set of causes for the current meaning and centrality of human rights recaptured? The central conclusion could only be that, however tempting, it is misleading to describe World War II and its aftermath as the essential source of human rights as they are now understood. From a global perspective, the brief career of human rights in the 1940s is the story of how the Allied nations elevated language about human rights as they reneged on the earlier wartime promise—made in the 1941 Atlantic Charter—of the self-determination of peoples. Global self-determination would have spelled the end of empire, but by war's end the Allies had come around to Winston Churchill's clarification that this promise applied only to Hitler's empire, not empire in general (and certainly not Churchill's). The Atlantic Charter set the world on fire, but because similar language was dropped from the Universal Declaration, human rights fell on deaf ears. It is not hard to understand why. Human rights turned out to be a substitute for what many around the world wanted: a collective entitlement to self-determination. To the extent they noticed the rhetoric of human rights at all, the subjects of empire were not wrong to view it as a consolation prize.
Without, as I say, yet having read the book, I find this both intriguing.  No, more than that - it accurately captures in my own experience as an NGO person who first volunteered to do work for Human Rights Watch in 1983 when it was still two somewhat separate organizations, Helsinki Watch and Americas Watch.  This was a time when Aryeh Neier was operating out of a tiny dark office in the New York City Bar building, and the organization was not in its current position of glorious NGO hegemony and a $44 million annual budget - meaning, an offer from a Harvard Law student bringing his own funding was not an occasion to giggle at the presumption.  Ken Roth was still working as a Federal prosecutor.

There are some interesting comments in the live blog of the UNCTAD International Investment Agreements Conference from the likes of Todd Weiler, Susan Franck, and Jason Yackee. (You can also watch the proceedings here). Much substance in the coverage, but also some fun. Here's a taste: Todd Weiler: As I see Prof Franck is performing the live blog function,...

No doubt many readers have seen the press articles announcing George Soros' gift of $100 million to Human Rights Watch.  Most interesting to me was that the gift is aimed, in part, at diversifying the organization, staff, and board away from its current US-centric arrangement.  As the AP puts it:

But the money also is meant to make its donor base as international as its outlook. Plans call for Human Rights Watch to draw at least half its income and most of its board members from outside the U.S. within five years. Now, about 70 percent of the money and 80 percent of the board members are U.S.-based.

Soros considers that a liability -- one he blamed on a frequent target of his, former President George W. Bush.

"They're basically an American organization advocating human rights all over the world. But the United States has lost the moral high ground, during the Bush administration, and, therefore, it runs into opposition because there's resentment of American interference," Soros said in an interview in his sleek office in a midtown Manhattan high-rise. " ... It's a drawback, to be American in this context."

HRW agrees, although it already believes it is seen as independent of the US government.

"But it is helpful for our organization to personify the global values we promote," Executive Director Kenneth Roth said.

I wonder if it is quite so easy to personify global values in that way, however.  Multinational corporations, for example, often talk about how global they are, in outlook, in values, in all those ways.  Query whether it actually works that way in MNEs.  The Daimler-Benz model, for example, in which it was supposed to be a merger of equals between the American car company and the German one.  Under a surface veneer of the "global" company, in fact the true owners of the enterprise, Daimler, quickly asserted itself, and for a simple reason - the post-merger was turning into a disaster, and the immediate response was for management to seek to reduce its internal transaction and agency costs by asserting a command and control decisionmaking model that relied upon one side of the enterprise.  That is, a "mixed" culture inside an enterprise is a costly one in terms of many decisionmaking factors, because it invites much more negotiation inside.  

I have no desire to have the final word with Ken.  But I would like answers to two questions. First, where does Melzer or the ICRC say that armed conflict is a geographically-bounded concept, such that a participant in an armed conflict ceases to be targetable as soon as he leaves the battlefield?  I cited pages in Melzer's book on targeted...

Re the Volokh post to which Kevin refers below. Fear not, I was not trying to withhold content from OJ readers, but it did seem to me that I was days late in arriving at the issue that Ben and Kevin had already been discussing, whereas my VC post went into a lot of other stuff that didn't strike me as relevant to OJ readers.  Although we are pretty eclectic in our tastes here, as my personal drone post shows, I've sometimes had email complaints from readers wondering what the connection to international law is re some post of mine.  Am I wrong about that among our readers?  But anyway, my fundamental motivation in posting it to VC and then linking back to the OJ discussion was blog-strategic - drive some traffic over to OJ from Volokh.  I'm not trying to deprive OJ or its readers of my 'invaluable' thoughts. Very quickly as to substance in one matter of Kevin's response.  Kevin says I'm offering a caricature of Nils' view on territoriality and armed conflict.  Maybe.  But what Kevin calls caricature, I'd say is a reasonable statement in a couple of paragraphs on a blog of the center of Nils', and the ICRC's, views.  That's not a criticism.  There is a lot to be said for the view that armed conflict has geographical limits on it.  The ICRC, if I may summarize, or caricature, as you will, reached this view on the perfectly sensible and understandable grounds of its alarm over the Bush administration's Global War on Terror claims.  I think that the GWOT reached too far - as I have said many places, in my view - once again, a summary or caricature, as you will - what the Bush administration sought was the tail of law wagging the dog of war, the ability to use the law of war anywhere in the world with or without actual hostilities. The ICRC unsurprisingly became alarmed at this, and has - including through Nils' work - moved to a largely geographically based view of armed conflict.  I understand and sympathize with the reasons, in part because I share them and in part because even where I don't share the final conclusion and come to a different view, I do try to start with a sympathetic view to the argument and understand it on its own terms.  The sympathetic read of that argument is that the Bush administration wanted a global war in order to invoke the law of armed conflict anywhere, at any time, but without any connection to actual hostilities.  As I say, I reach a different view - different from the GWOT view or Nils' view, but I think I am starting from a position of seeking to understand it.  And for that matter, one of the reasons I think I understand it as a "large" view in the law of war is that some of the senior ICRC staff deliberately reached out to me for exactly the same reason - they heard what Koh was saying, what I was saying, what different people were saying, and they were admirably trying very hard to understand the positions and how they differed from their own.

I've got a new draft article on cyberthreats (you can download it at SSRN here).  I'd planned to wait before blogging about it, but events have overtaken my plans since Orin Kerr and Dave Hoffman are already discussing my ideas over at Concurring Opinions.  So, let me offer some responses to their questions here, and in the process explain (a) why some...

Thanks to the independence of two independents -- Tony Windsor and Rob Oakeshott, who come from conservative electorates.  That, my friends, is putting the good of the country ahead of short-term political interest. Go Julia!  And thank you, Tony and Rob, for sparing us from three years of Tony Abbott....

I have no idea why Ken posted his thoughts on the Washington Post editorial only at Volokh Conspiracy, but I wanted to respond to his post, because I think it is based on a critical misapprehension of the laws of war.  Here are the relevant paragraphs (my emphasis): [G]oing to the geographic definition of war as a legal concept.  This idea...