Archive for
November, 2010

Handbook of Comparative Criminal Law Now Available

by Kevin Jon Heller

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I am delighted to announce that Stanford University Press has now published The Handbook of Comparative Criminal Law, which I edited with the University of Toronto’s Markus Dubber.  The book contains chapters on the substantive criminal law of 16 different countries, including some on which there has been little English-language scholarship, such as Iran, Egypt, China, and Argentina.  There is also a chapter on the comparative origins of the Rome Statute, authored by yours truly.  Here is one of the advance reviews:

“This book offers a rare combination of panoramic geographical reach with telling national detail and so provides an invaluable tool for thinking about where societies converge and diverge on all the perennial questions, including the proper ambit of criminal law, the severity of its sanctions, and the relative importance of its central purposes. The tightly integrated chapters, by leading scholars in their respective countries, invite us to ask why countries are harmonizing their criminal law in some respects, while preserving major differences in others. We are also led to wonder how it is that several modern societies—all avowedly ‘liberal’ in their self-understandings—differ so deeply in their view of what liberalism really requires of us when criminalizing serious wrong.”—Mark J. Osiel, University of Iowa

The book is priced at $90.00 (US), which seems eminently fair for a hardback that is nearly 700 pages long.  It’s available from Stanford here and from Amazon here.  I hope readers find it useful!

Should the Media Be Prosecuted for Espionage, Too?

by Kevin Jon Heller

That’s the excellent question asked by Ian, one of the commenters on Roger’s recent postThe New York Times, Der Spiegel, The Guardian, Le Monde, and El Pais — all are just as guilty of violating the Espionage Act as WikiLeaks.  There is no “we redacted some of the documents” defense in the Act, and prosecuting a news organization after it has published documents does not create prior restraint problems.  Moreover, given that those newspapers have a vastly wider readership than the WikiLeaks website, they have arguably harmed America’s national-security interests far more than WikiLeaks itself.  (And let’s not forget, WikiLeaks did not steal the documents; it obtained them from the person who did.  So there is no relevant difference between the newspapers and WikiLeaks in that regard; the “espionage” is simply one level removed with the newspapers.)

If WikiLeaks is really as evil as everyone claims — and I can’t recommend Glenn Greenwald’s post today on WikiLeaks hysteria highly enough — then the editors of the papers who published the government’s stolen documents should be sitting in the dock next to Julian Assange.  And unlike the shifty Assange, Bill Keller is sitting in his office in New York and can be easily apprehended.

I look forward to the bipartisan calls for his prosecution.

UPDATE: In the comments, Roger offers the following four questions regarding the potential liability of the media for espionage:

First, is the media outlet in unauthorized possession of the classified documents or is it simply reporting what others are reporting?  The statute seems to require possession of the documents to be culpable.

Second, does the media outlet have a reason to know of the harm that it will cause by the additional republication of what was originally disseminated by Wikileaks?

Third, does the republication by the media outlets cause the harm or does the original publication alone cause the harm as defined by the statute?

Fourth, according to Floyd Abrams, the courts have narrowed the Espionage Act to require some proof of intent to harm.  I doubt that the media outlets satisfy that standard, whereas it appears that Assange does satisfy that standard.

With regard to the first question, it is clear that most — and probably all — of the newspapers received the actual documents.  See here for The New York Times and here for The Guardian.  Also note that paragraph (e) in the Espionage Act does not require possession; it also criminalizes “access to” any document.  The various newspapers obviously had access to WikiLeaks’ documents, given their detailed description of the contents of those documents.

With regard to the second question, how could they not?  The newspapers had the same information as Assange concerning the US government’s belief that publishing the documents would harm national security, so if Assange had reason to know, they had reason to know as well.  Moreover, contrary to what Roger suggests, the newspapers did not simply republish the documents; in at least some cases, they published them first.  See here, for example, where The New York Times says that “[b]elow are a selection of the reports from a six-year archive of classified military documents to be published by WikiLeaks” (my emphasis).

With regard to the third question, I don’t see a harm requirement in the Espionage Act.  Paragraph (e), for example, applies to “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”  The potential for harm seems to be all that is required.  Moreover, if harm was required, the fact that the newspapers published at least some of the documents first would mean that Roger’s comment about republication would help Assange, not the newspapers.

Roger’s fourth question is the critical one.  Assuming that courts require intent to harm — a reading that is directly at odds with the statute — it might be possible to distinguish between WikiLeaks and the newspapers on that ground.  That said, I think it is difficult to argue that Assange intended the leaks to harm US national security; if you asked him, I think he would say that he believes that a secure government is one that is not permitted to keep its citizens in the dark about national-security issues.  That, at least to me, is the better reading of the quote that Roger mentioned in the comments to his post: namely, Assange’s statement that he wants to “bring down many administrations that rely on concealing reality — including the US administration.”  But I’m sure that many readers will disagree with me about that!

Secretary Clinton Ordered Spying on U.N. Officials: Did Harold Koh Approve?

by Julian Ku

Peter’s posts on how Wikileaks actually makes the US and its diplomatic service look fairly good are spot on.  The Foreign Service looks a lot more interesting now that I know I get to spy for the U.S., too!  But as this article from Slate notes, Secretary Hillary Clinton made it official State Department policy (“The “National Human Intelligence Directive on the United Nations“) to secretly gather “biometric” and other information on foreign and U.N. diplomats.  This is very cool and I am glad to hear that she ordered this, but it is…umm… almost certainly a violation of U.S. obligations under international law. As the Guardian quotes a U.N. spokesman,

Within hours of the release of America’s “National Human Intelligence Directive on the United Nations“, Farhan Haq, the UN secretary general’s acting deputy spokesman, issued a pointed statement reminding member states that the UN relies on their adherence to treaties and agreements about respecting the institution’s inviolability.

“The UN charter, the Headquarters Agreement and the 1946 convention contain provisions relating to the privileges and immunities of the organisation,” he said. “The UN relies on the adherence by member states to these various undertakings.”

He noted a clause in the 1946 convention which states: “The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial, or legislative action.”

Interestingly, the Headquarters Agreement was also adopted by joint resolution of congress, so it is binding law.  The argument from the U.S. side, if any litigation ever ensued domestically, would have to be that the Agreement is non-self-executing because it calls for arbitration in the event of any disputes between the U.S. and U.N.  But I would be curious to see if there was a legal memo somewhere justifying the legality of the Clinton directive here. And I would love to know how my old lawprof Harold Koh, now the State Department’s Legal Advisor, finessed this issue.  Or perhaps it is better to avoid giving these actions the taint of legality?

Wikileaks: It’s Tough Being a State (Some Are Taking Pity)

by Peter Spiro

The Wikileaks episode seems to be turning to the USG’s advantage, at least domestically: it’s provoking a lot of sympathy for the government as an entity.  That’s a rare sentiment these days.  Leave aside angry calls for Assange’s head (almost literally), people are actually feeling sorry for the USG.

One way that’s being expressed is to compare the government to private entities.  Two posts at the New Yorker’s site take this tack.  George Packer makes the sensible observation:

Lawyers, judges, doctors, shrinks, accountants, investigators, and—not least—journalists could not do the most basic tasks without a veil of secrecy. Why shouldn’t the same be true of those professionals who happen to be government officials?
while Blake Eskin pushes the envelope a little further with this thought:
The various classifications of cables—top secret, secret, noforn, secret/noform, confidential—remind me of the privacy settings for information shared on Facebook. You might let only certain friends see your e-mail address and phone number, but friends of friends can see your status updates, and everyone can see your Wall. . . . The State Department is a social network, and accusing Assange of treason (never mind that he’s not an American citizen) is screaming privacy foul on a national scale.
Of course there is a long tradition of anthropomorphizing the state.  But these Wikileak observations sound in a different register.  They are premised on an equivalence between the state and regular folk.  Imagine if you were doing your job as lawyer/shrink/accountant, and Assange swooped down on you!  Imagine if he hacked his way into your Facebook page!  They make the state human, in a nice way.

(Some of you who are bankers are about to feel the pain.  It will be interesting to see if private sector Wikileaks targets have any more luck squashing posts than the government.  Perhaps the stolen property argument — a line the USG is pressing in its response — will have more traction coming from a private litigant.)

The other silver lining, from the government’s perspective:  The State Department is getting a huge amount of free and generally positive publicity.  Some of  the cables were given a dramatic reading this evening on All Things Considered!  See here, here, and here — still looks like fun, doesn’t it?  I predict a record number of takers for the February 2011 Foreign Service exam (you can register here).

Wikileaks and the Espionage Act

by Roger Alford

Harold Koh has warned Wikileaks of the dire consequences to the United States resulting from the publication of over 250,000 classified documents. But I doubt that Julian Assange and Wikileaks cares much about the damage done to our nation from this breach. What they presumably do care about is criminal prosecution. As Marc Thiessen at the Washington Post argues today, it seems fairly clear that Assange has violated the Espionage Act. Read the key provisions for yourself:

Whoever, for the purpose aforesaid [e.g., obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation], and with like intent or reason to believe, copies, takes, makes, or obtains, … any … document, writing, or note of anything connected with the national defense; or

(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, … or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or….

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, … or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; ….

Shall be fined under this title or imprisoned not more than ten years, or both.

Given Wikileaks’ multiple breaches of the Espionage Act in recent months, why oh why has it taken so long for Obama, Holder, Clinton, Koh and company to bring criminal charges against Assange? Can anyone with expertise in this area offer a plausible explanation for their stunning failure to take action?

Latest Wikileaks Dump: Swan Song for the Diplomatic Cable?

by Peter Spiro

I suspect this will be a much bigger story than the previous Iraq and Afghanistan disclosures, mostly because there will be something here for everyone.  I’m not sure that the State Department looks particularly bad, as Timothy Garten Ash explains.  It shouldn’t be a revelation to anyone that diplomats sometimes do something that looks like spying.  This is much more likely to cause scandals in foreign capitals than in the US (which is not to say that it won’t hurt US foreign policy interests — it will).  What you will see are lots of examples of US diplomats executing their briefs, in most cases pretty well.

One possible casualty is the venerable tradition of the diplomatic cable.  There is an art to this medium.  The best cables have a narrative arc.  It would be fun to compose a full typology (including the serious policy assessment, the color story, the ambassador’s farewell cable, memcons, codel reports, and “scenesetters“, among others) — on top of the 250,000 wikileaks cables, we have more than a century’s worth of the Foreign Relations of the United States to work with.  US diplomats have always represented the bureaucratic elite (remember the handkerchief-up-the-sleeve stereotype), and some write elegantly.  As a sort of private reporting service for the US government, however, it must be getting tougher to add value as the sources of information multiply along with modes of diplomatic communication.  With the rise of email and other channels, I wonder if ambassadors and their staffs still consider cables the primary medium for staying in touch.  (Even less so in the Department itself, where a cumbersome inter-office clearance process has to make cables the choice of last resort.)

But this episode will surely make cables look less attractive still.  It’s one thing to understand that your work will come to light 25 years hence, when you (and your interlocutors) will either be dead or retired, too old much to care; or else flattered to see your handiwork become the stuff of history.  It’s another to have to worry about something being disclosed that might affect your ability to function in your next post (or whether you’ll get one at all).  The result will be less interesting stuff on paper for the record, more stuff over the phone or scattered in the diplomatic equivalent of tweets.  Diplomatic historians will be thrilled with this unexpected Thanksgiving weekend gift, but they may have a lot less to work with in the future.

A Response to Beth Van Schaack by Douglas Guilfoyle

by Melbourne Journal of International Law

I am grateful to Professor Van Schaack for her thoughtful and considered response. It strikes me as an entirely fair criticism that – albeit in a short commentary focusing on the standards governing the use of force by governments – I neglected to explore fully issues of combatant status in non-international armed conflicts and, more interestingly, belligerent nexus issues. The methodology adopted was to avoid speculation by focusing on the facts at hand at time of writing and this limited the scope of the piece.

Professor Van Schaack is correct to point out that the lack of an armed conflict between Somali pirates and their victims (or patrolling naval forces) and the existence of a non-international armed conflict within Somalia raises distinct issues. Could Somali pirates’ acts still be charged as war crimes as well as piracy, if those acts were sufficiently linked to the Somali conflict, and if so what is the relevant test of belligerent nexus?

The only substantive thought that occurs to me in response to this very useful question is that it is obviously true that non-combatant civilians may commit war crimes in either international or non-international armed conflicts (‘NIAC’s). The catalogue of potentially applicable NIAC war crimes overlapping with acts of piracy could certainly include hostage taking and possibly pillaging. Depending on the case, outrages upon personal dignity or cruel treatment and murder might also apply. The nexus test offered in by the ICTY Appeals Chamber in Kunarac (Case No IT-96-23/1-A, 12 June 2002 [57]) was: ‘the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit [the crime], his decision to commit it, the manner in which it was committed or the purpose for which it was committed’. Taken literally, this could cover non-combatant pirates who merely exploit the conditions created by the non-international armed conflict to commit crimes for personal financial advantage. Read as a whole Kunarac may support a higher standard, though, as on the facts it found the nexus requirement satisfied where ‘the perpetrator acted in furtherance of or under the guise of the armed conflict’. Even so, if evidence emerged that an act of piracy was aimed at funding an armed group participating in a NIAC, this could well qualify.

The final point to consider would be whether attacked sea-farers on the high seas could qualify as victims under the law of war crimes. In the case of a NIAC attacked mariners would appear to be protected as ‘persons taking no active part in hostilities’ under Common Article 3.

I am, of course, open to correction or further thoughts on all of this.

I certainly agree with Professor Van Schaack that, even if made out, this would not change the applicable law on the use of force for interdicting naval forces. Arresting either pirates or war criminals remains a law-enforcement exercise.

A Response to Douglas Guilfoyle by Beth Van Schaack

by Melbourne Journal of International Law

[Beth Van Schaack is an Associate Professor at Santa Clara University School of Law and contributor to IntLawGrrls.]

Professor Guilfoyle’s article makes a discrete and important contribution to his growing body of work on maritime law and the problem of piracy in the Gulf of Aden. The article cogently argues that international humanitarian law (‘IHL’) does not apply to most instances of piracy because of the absence of the existence of an armed conflict between pirates and their targets — a necessary predicate to the applicability of this body of international law. Based on Professor Guilfoyle’s account, it seems clear that the acts of violence in the Gulf of Aden do not meet the threshold of ‘protracted armed conflict’ between ‘organized armed groups’ necessary to trigger the application of IHL. (See Prosecutor v Boškoski, Case No IT-04-82-T (10 July 2008)). To date, these attacks are more akin to acts of banditry that do not satisfy even the lowest threshold established by common Article 3 of the Geneva Conventions. Professor Guilfoyle also convincingly demonstrates that nothing in the Security Council’s resolutions responding to acts of piracy calls this conclusion into question, notwithstanding that the Council has authorized the use of ‘all necessary means’ (code for uses of military force) and invoked ‘relevant humanitarian law’. Thus, he concludes that in the majority of circumstances, piracy is a law enforcement problem, not a law of war problem.

The seemingly facile conclusion of the article, however, dodges the more difficult question of the impact of a potential nexus between acts of piracy and the ongoing non-international armed conflict in Somalia between the beleaguered Transitional Federal Government and a loose coalition of fundamentalist militias. If such a link is eventually established or confirmed, IHL may apply to some acts of piracy committed in order to fund organized armed groups or regional warlords engaged in the protracted insurgency against the government of Somalia. The article would have made a more significant contribution had it focused more searchingly on this question of what type or degree of war nexus would be necessary to trigger the application of IHL.

One implication of such a nexus would be that attacks on commercial vessels such as we have seen in the Gulf of Aden may become prosecutable as war crimes (viz, violence to life and person or the taking of hostages). This possibility might circumvent some of the defects in national substantive law that have led to the release of captured pirates for lack of a legal basis to bring charges. The application of IHL would not, however, likely displace other law enforcement activities being undertaken in the region. Rebels and insurgents in non-international armed conflicts enjoy no combatants’ privilege (a point acknowledged in the above commentary but not in the article itself). Nor does IHL provide national authorities with any authority to capture and detain individuals engaged in non-international armed conflicts without the privilege of doing so. Rather, such responses will continue to be governed by other sources of national and international law, including the law of the sea and international human rights law. So, even applying IHL to this potential scenario results in a renvoi to a law enforcement model of capture, detention, and prosecution.

Regardless of the application of IHL, the international community should not lose sight of the fact that international human rights law remains applicable to the collective international response to acts of piracy. In a companion piece, Professor Guilfoyle focuses on the law governing the extraterritorial application of human rights law, the principle of non-refoulement, the prohibition of arbitrary detention, and due process protections (see Douglas Guilfoyle, Counter-Piracy Law Enforcement and Human Rights, 59 Int’l & Comp L Q 141 (2010)). In addition, the prohibitions of summary execution and other arbitrary deprivations of the right to life also establish limitations of necessity and proportionality on uses of force against individuals in the exercise of national and international police powers (see McCann v UK, 21 EHRR 97 (1996)).

‘The Laws of War and the Fight against Somali Piracy: Combatants or Criminals?’ by Douglas Guilfoyle

by Melbourne Journal of International Law

[Dr Douglas Guilfoyle is a Lecturer in Law at the Faculty of Laws, University College London.]

It is sometimes suggested that because pirates were described by classical authors as hostes humani generis (enemies of humankind) or because the Security Council has authorised the use of ‘necessary means’ in repressing Somali piracy that the laws of armed conflict (‘LOAC’) must (or might) play some role in counter-piracy operations off Somalia. Alternatively, it might be thought that because the current counter-piracy operations in the Gulf of Aden are being conducted by naval forces, the appropriate law governing their actions should be LOAC. Such arguments, to my mind, simply add to the entirely unnecessary confusion and speculation that surrounds the repression of high seas piracy. The law of piracy is now codified in treaty, and to the extent it remains ambiguous the current practice of States makes their interpretation of the treaty law fairly clear. With only one exception, no naval or government legal officer I have spoken to on the issue and I’ve spoken to many – thinks LOAC has any application.

The thrust of my argument is that any case for the application of LOAC must fail at the first hurdle: the attacks of Somali pirates on foreign merchant vessels do not constitute an armed conflict; nor do their occasional (and usually very brief) engagements with naval forces in the Gulf of Aden. Even if, as has recently been reported, pirates are increasingly connected with factions in the Somali civil war this would not necessarily change anything. Persons engaged in conflict on behalf of a non-State actor inside Somalia may still commit criminal acts outside Somalia. Indeed, historically, insurgents who attempted to exercise belligerent rights at sea were treated as pirates unless they had been granted some form of recognition.

My commentary thus makes the case that this is a law-enforcement operation to which LOAC has no application. Further, it isn’t obvious that deeming the laws of armed conflict to be applicable would make the task of navies any easier or, alternatively, provide any greater human rights protection to suspect pirates. There is already a clearly established framework for law-enforcement operations at sea; not only is this the correct law to apply as a matter of doctrine, few advantages would follow from applying the laws of war as a matter of policy.

One small caveat: the piece perhaps assumes there can be privileged combatant status for non-State actors during non-international armed conflict. The point is, of course, contested.

The full article can be accessed here.

A Response to Frans G von der Dunk by Steven Freeland

by Melbourne Journal of International Law

I would like to thank Professor von der Dunk – who is a close friend and highly respected colleague – for taking the time to provide his thoughtful responses to my article ‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism’, published recently in the Melbourne Journal of International Law. Professor von der Dunk and I have worked in collaboration on several research projects and he is a very highly regarded scholar in matters relating to the international, and national, regulation of the use and exploration of outer space. I look forward to reading the article in Space Policy to which he refers.

In relation to the comments he has made, I make the following brief responses (using his numbering):

1. I agree with Professor von der Dunk that, in particular, the ‘Common Heritage of Mankind’ categorization attributed in the Moon Agreement to the natural resources of the Moon (and other celestial bodies) has given rise to considerable debate and disagreement as to its meaning and (possible) application to the use and exploration of outer space. Nonetheless, the concept plainly does exist within the corpus of space law, though whether it has been particularly helpful or not remains another matter. The reference was made in the article to further emphasise the unique legal categorization of outer space in terms of a res communis ‘common’ asset, as opposed to traditional international law (and terrestrial) notions associated with territory.

2. I agree with Professor von der Dunk that the term ‘space tourism’ may be(come) too simplistic to aptly cover the multitude of different ways (and purposes) in and for which human space flight may take place in the future. My use of the term was not intended to be definitive of every such instance of human travel – rather it was used more generally to apply to those commercial human space flight ‘experiences’ that are proposed in the short-medium term. Indeed, I suggest that, as different forms and purposes of human space travel emerge, it may become necessary to develop another form of law – ‘aerospace law’ perhaps? – to deal with specific circumstances.

3. The argument as to whether the Rescue Agreement – which refers to astronauts in its title but to ‘personnel of a spacecraft’ in its substantive articles – gives rise to differing obligations towards (and rights of) astronauts vis-à-vis other space ‘travelers’, has been extensively discussed in the scholarship. I agree with Professor von der Dunk that other international regimes (eg Maritime Law) and rules will give rights to ‘non-astronauts’ (whatever that term may precisely mean), but I also do believe that the preambular words in the Rescue Agreement that I refer to, seen also in the broader humanity context of international space law, would give rise to particular rights for such persons under that treaty as well.

Once again, I thank Professor von der Dunk for his comments and look forward to many future discussions with him (preferably over a bottle of French wine) on these and other matters relating to the use and exploration of outer space.

 

A Response to Steven Freeland by Frans G von der Dunk

by Melbourne Journal of International Law

[Frans G von der Dunk holds the Harvey & Susan Perlman Alumni and Othmer Chair of Space Law at the University of Nebraska College of Law.]

The contribution of Professor Freeland to the important debate on the legal aspects of private manned spaceflights, as per his article ‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism’ is a thoughtful and enlightening exposé of some of the key legal issues involved in that debate, and I very much agree with the general thrust of the argument. Still, I would like to offer three critical observations for further consideration and debate as my current contribution to this debate.

Firstly, I am as yet unconvinced that the categorisation of outer space as a ‘common asset’ or ‘province of all mankind’ (p 93) ‘incorporat[es] within its regulation the concept of the “Common Heritage of Mankind”’. The key distinctions between the former and latter concepts, as correctly analysed elsewhere to lie in mandatory sharing of material benefits and mandatory sharing of technology, were precisely the reason why the Moon Agreement, heralding the Common Heritage of Mankind principle, was not ratified by many countries – Professor Freeland’s as well as my own fatherland excluded! – whereas the Outer Space Treaty, fundamentally defining all of outer space as the province of all mankind, was so widely accepted.

Secondly, a more fundamental problem arises in the definitional area (p 98). As I have argued elsewhere and will do so in more detail in a forthcoming article in Space Policy, I find the label of ‘space tourism’ a useful one only for the first two types of private spaceflight, orbital and suborbital space tourism. For a more profound analysis we should realise that the motivation for persons to be on board of a spacecraft would be a distinguishing criterion of doubtful value only. This awkwardness of the moniker of ‘space tourism’ consequently leads to the use, in the article, of the uneasy term ‘intercontinental rocket transport’ for the third relevant kind of private spaceflight discussed, where reference is even made to possible military use – should this still be ‘tourism’ (p 99)?

This is not merely a theoretical exercise, either. Today, high-adventure tourism law may provide the most sensible area to look at for guidance – in particular suborbital space tourism is not much more than sophisticated bungee jumping – but once suborbital transport would take off, transport law, in particular aviation law, would present the much more relevant analogies.

Precisely for purposes of air law, however, the motivation for someone to take a flight is basically irrelevant. On board businessmen, politicians, scientists, charity workers and tourists are all treated, legally speaking, exactly the same and for the legal status and regime of the flight it does not matter one bit whether the plane is filled with the one or the other. It should be noted finally that Virgin Galactic, the company generally considered closest to actually offering private flights into the edge of space, has already expressed its intention to use ‘space tourism’ essentially as a technology demonstrator for suborbital travel, where these forms of spaceflight become much more akin to aviation indeed – it expects the ‘real’ tourism, after an initial release of pent-up demand, to trickle down to a much lower level.

Finally, I respectfully disagree with the argument that space tourists should enjoy the same level of protection that ‘astronauts’ and ‘personnel of a spacecraft’ would enjoy especially under the Rescue Agreement (pp 103–4), for reasons of ‘sentiments of humanity’. We should realise, on the one hand, that under these obligations states have to go out of their way to assist astronauts in distress, and it does not seem appropriate to accord people essentially traveling into space for their own pleasure the same privileges. Not providing them with such privileges, on the other hand, does not deprive space tourists from any rights to assistance in case of need – general international obligations to assist humans in need, as they apply on earth, apply in outer space as well. After all, as Professor Freeland correctly states (p 118):

‘Outer space belongs to all of us. Our use of it should reflect underlying notions of cooperation and shared benefit, which must remain as the cornerstones in this next phase of human achievement’.

‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?’ by Steven Freeland

by Melbourne Journal of International Law

[Steven Freeland is a Professor in International Law at the University of Western Sydney, Australia, Visiting Professor of International Law at the University of Copenhagen, a member of the Space Law Committee at the International Law Association, a member of the Directorate of Studies at the International Institute of Space Law and a Faculty Member of the London Institute of Space Policy and Law.]

I thank the moderators of Opinio Juris for the opportunity to participate in the Online Symposium and to discuss my article, entitled ‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?

The recent confirmation by National Aeronautics and Space Administration scientists regarding the presence of substantial amounts of water on the Moon has further galvanised the aim of humankind to develop ever more ambitious plans for space travel. Central to this ongoing evolution is the development of technology capable of transporting large numbers of passengers into outer space as commercial space tourists. It is increasingly likely that, within the foreseeable future, space will no longer be the sole domain of professionally trained astronauts or the exceptionally wealthy.

However, the prospects for both suborbital and orbital private human access to space give rise to some challenging legal and ethical questions and call into question the adequacy of existing international law instruments that are directed towards the regulation of the use and exploration of outer space. It is clear that the existing international legal regimes covering air and space activities are not well suited to large-scale commercial access to space, largely because they were developed at a time when such activities were not a principal consideration in the mind of the drafters. The lack of legal clarity must be addressed as soon as possible, to provide for appropriate standards that will further encourage such activities.

Questions regarding the international regulation of space tourism are all the more complex given the fundamental principles and limitations that are found in the international legal regime that has already been established for outer space, in particular its categorisation as a ‘common asset’ — incorporating within its regulation the concept of the ‘Common Heritage of Mankind’ — raising broader ethical questions about space tourism activities.

The corpus of existing space law and legal principles — comprised of United Nations-sponsored multilateral treaties, UN General Assembly Resolutions, a wide range of national legislation, decisions by national courts, bilateral arrangements, and determinations by intergovernmental organisations — represents an important base from which to develop the legal tools to properly regulate the next stage of space activities. Yet this body of law is not sufficient even for present purposes, let alone for the coming decades. The advent of space tourism raises many unanswered legal questions. As more space tourism (and other) activities take place, appropriate dispute resolution procedures must be agreed upon in order to deal with conflicts that will inevitably arise, both at the public and private international law level. Detailed traffic management systems must be developed. Moreover, a comprehensive legal framework must be established at the international level to reflect the wishes of the wider (global) community and provide certainty.

At the same time, however, the broader philosophical and ethical aspects of human activities in outer space — indeed the place of human beings in the universe — demand that we continually reassess the ‘why’ and ‘what’ in relation to our ongoing exploration and use of outer space. Moreover, just as the exploration and use of outer space is impacted by terrestrial concerns — including economics, politics, social and fundamental human rights — it also serves as a model for our future activities on Earth. There are many lessons that we can learn from our (over-)exploitation of the Earth’s natural resources. Should we adopt an ‘efficiency’ approach to the exploitation of the resources of outer space, doing it as quickly as we can, irrespective of the longer-term consequences? Or, rather, should our future activities in outer space — and ultimately on Earth — be more considered and measured, taking into account the differing expectations and capabilities of the various countries on Earth?

All of these issues represent considerable challenges as to how international law, incorporating the international legal regulation of outer space, will be able to cope with future activities in space, including the advent of commercial space tourism. The way in which the law is developed and adapted to meet these challenges will be important not only for outer space itself, but also for future generations living on Earth.

Outer space belongs to all of us. Our use of it should reflect underlying notions of cooperation and shared benefit, which must remain as the cornerstones in this next phase of human achievement. International law has a crucial part to play in this regard.

The full article can be accessed here.

A Response to Jean-Marc Coicaud by Ramesh Thakur

by Melbourne Journal of International Law

Dr Jean-Marc Coicaud is one of the more thoughtful and reflective UN officials, and his response shows why. Broadly speaking, I agree with all three of his comments

The conceptual, political and operational relationship between law and legitimacy will be treated differently by political and legal theorists. For some, lawfulness is both a necessary and a sufficient condition of legitimacy. For others, it is neither necessary nor sufficient, as captured in the phrase ‘I answer not to law but to my conscience’. My instinct is that, at least in relation to organized political communities, including the international community as symbolized by the United Nations, law is a necessary but not sufficient condition for legitimacy. Perhaps the UN University could undertake a project devoted to the theoretical exploration of the relationship by a team of political scientists and international law scholars.

Second, rather than the relationship between legitimacy and justice, that between power and justice or, even better, between realism and idealism, will prove more fruitful in the UN context. The organization needs to achieve a better balance between the wish of the peoples and the will of governments; between the aspirations for a better world and its performance in the real world; between the enduring political reality enveloping and at times threatening to suffocate it and the vision of an uplifting world that has inspired generations of dreamers and idealists to work for the betterment of humanity.

The UN Charter was a triumph of hope and idealism over the experience of two world wars. The flame of idealism flickered in the chill winds of the Cold War, but refuses to die out. The economic, political and military realities as well as the vision of a good international society have changed since 1945. Yet the imagined idea of a universal organization dedicated to protecting world peace and promoting human welfare has survived the death, destruction and disillusionment of armed conflicts, genocide, persistent poverty, environmental degradation and the many assaults on human dignity of the 20th century.

The UN is still the symbol of our dreams for a better world, where justice and fairness is dispensed even to the weak and the law of the jungle gives way to the rule of law. It remains the symbol of lofty aspirations and the locus of collective action. As the repository of international idealism, Utopia is fundamental to its identity. It is still our best hope for unity in diversity in a world in which global problems require multilateral solutions.

Third, the UN record shows a surprising capacity for institutional innovation, conceptual advances, policy adaptation and organizational learning. Yet, simultaneously, it has also proven remarkably resistant to major and necessary change. The reforms of 2005 were a great disappointment when set against the needs, the expectations and the major resources and efforts that had been invested in the exercise. Is the UN reform-proof and, if so, what does this mean for reorganizing the institutional basis of world order?

Understanding the Legitimacy Crisis of the UN — The Next Steps: A Response to Ramesh Thakur by Jean-Marc Coicaud

by Melbourne Journal of International Law

[Dr Jean-Marc Coicaud is the Director of the United Nations University Office at the United Nations in New York.]

Professor Thakur highlights what he claims to be today the weak legitimacy of the United Nations. He does so not only by stressing the gap between the principles upon which the legitimacy of the UN is meant to be based and reality, but also at times by questioning the principles themselves. Professor Thakur concludes that the United Nations, and even the international system it is part of, is suffering a significant crisis of legitimacy.

Such an assessment is by and large correct. The recent rise of the G-20 as a possible alternative to the United Nations is one indication, among others, that the UN is not in a position of strength, in a position to meet the challenges of today’s world. That said, beyond describing the limitations of the United Nations, there are a number of issues that Professor Thakur alludes to but does not expand on in his article which are worth exploring. Indeed, a more systematic examination of these issues would probably help in acquiring the analytical clarity that is required to overcome the policy and political problems that the weakened legitimacy of the UN entails. Three issues come to mind.

First, the relationship between law and legitimacy needs further elaboration, in particular the ways these are intertwined and interrelated. For example, on the one hand, legitimacy is more than law since a law with no legitimacy does not have much authority – a situation resulting from the fact that the values at the core of legitimacy give law its mandates and guidelines. On the other hand, legitimacy is less than law since without the “officialization” and the operational dimension that law constitutes, legitimacy is no more than an idea and cannot be made a reality.

A second element which requires further elaboration is the relationship between legitimacy and justice. Professor Thakur alludes to the link between justice and legitimacy, the latter being namely an expression of the former. But what about the connection between power and legitimacy and what this means for legitimacy’s ability to serve a justice agenda? After all, norms of legitimacy are more often than not associated with a situation of hegemonic power. In this context, how does one ensure that the power origin of legitimacy does not hamper the ability of legitimacy to express and serve justice?

Third, there is the question of change. For if the reality of the UN does not fulfill legitimacy expectations, it becomes imperative to not only find out what needs to be changed in the United Nations and the environment in which it operates, but also how change can be realized. In other words, the problem is not simply to identify what needs to be changed and what needs to be kept. It is also to find out how to engineer change, from the normative, policy and political points of view.

Unless we answer these questions now, it will be difficult to go beyond a mere description of the crisis of legitimacy the UN is currently facing.

‘Law, Legitimacy and United Nations’ by Professor Ramesh Thakur

by Melbourne Journal of International Law

[Ramesh Thakur is a Distinguished Fellow at the Centre for International Governance Innovation, and Professor of Political Science at the University of Waterloo in Canada.]

The UN is the site where power should be moderated by lawful authority. Legitimacy connects authority to power. The greater the gap between power and justice in world affairs, the greater the international legitimacy deficit. The gulf between law and legitimacy is a potentially serious crisis for the UN.

Developing countries are objects but not authors of international norms and laws, whose roots can mostly be traced to Europe. Thus the very universality from which the UN draws its legitimacy is in some crucial respects more token than real.

If Kosovo was an illegal and yet legitimate intervention, the reverse is true of many sanctions regimes. The Security Council is legally competent to impose sanctions. But as these sanctions became discredited for their harsh humanitarian consequences, instead of the UN legitimizing sanctions, the latter erode the UN’s legitimacy.

With respect to the use of international force to avert or halt atrocity crimes inside states, the old norm of non-intervention is giving way to the responsibility to protect. But the continuing rhetoric-action gap will undermine faith in the UN system for ‘timely and decisive action.’

There is also skepticism among developing countries that the motive for intervention is disinterested humanitarianism rather than self-serving commercial and geopolitical calculations. Moreover, they resent the evident double standards. The Bush administration’s dismissal of Charter prohibitions on aggression undermined the principle of a world ruled by law. The West wants to hold the rest’s use of internal force to international account, but exempt its own use of international force from independent accountability.

This will widen the law-legitimacy gulf of the ICC. Force is used most often by the powerful who, however, exempt themselves from the ICC’s purview. An initiative of international criminal justice meant to protect vulnerable people from brutal national rulers has been subverted into an instrument of the powerful against vulnerable countries.

Similarly, for the five NPT-licit P5 to insist that nonproliferation is an enforceable obligation while disarmament can be postponed indefinitely compromises the Security Council’s authority as the anti-nuclear enforcer.

The P5 also determine the choice of Secretary-General. After several rounds of indicative balloting, Ban Ki-moon was the only one to escape the threat of a P5 veto, and his choice was ratified by the General Assembly by acclamation. Having been given neither voice nor vote in his selection, why should the ‘international community’ accept him as ‘their’ leader and spokesman?

The Security Council suffers from a broader fourfold legitimacy deficit. Its performance legitimacy suffers from an uneven and a selective record. It is unrepresentative from almost any point of view. Its procedural legitimacy is suspect on grounds of lack of democratization and transparency in decision-making. It is unanswerable to the General Assembly, the World Court, the nations or the peoples of the world.

The UN’s legitimacy has also suffered because of the oil-for-food scandal even though, in the total sweep of the scandal, UN lapses were minor. The real UN scandal of recent years has been predatory peacekeepers.

The full article can be accessed here.


Melbourne Journal of International Law, Vol. 11-1: Opinio Juris Online Symposium

by Melbourne Journal of International Law

We are delighted to introduce the second online symposium issue of the Melbourne Journal of International Law hosted by Opinio Juris. This week will feature three pieces published in our most recent issue issue 11(1). The issue was generalist in its focus and saw articles on topics as diverse as the law of space tourism, the right to cross-examine prosecution witnesses in international criminal courts and the nature of legal inquiry in the Mekong River basin. Three of the authors published in 11(1) will be contributing to this online symposium.

Our first contributor is Ramesh Thakur, Distinguished Fellow at the Centre for International Governance Innovation, and Professor of Political Science at the University of Waterloo, Canada. Professor Thakur’s article, ‘Law, Legitimacy and United Nations’, identifies a gap between law and legitimacy in the practice of the United Nations and posits that this is a serious challenge to the authority of the organisation. Thakur detects this ‘legitimacy deficit’ with respect to a number of areas. He points to the difficulties with international sanctions regimes, the concerns regarding the structure of the Security Council and questions relating to the motivations underpinning humanitarian intervention, all of which challenge the claims to universality and legitimate authority made by the United Nations. The respondent will be Dr Jean-Marc Coicaud, Director of the United Nations University Office at the United Nations in New York.

Our second contributor is Steven Freeland, Associate Head of School and Professor of International Law at the University of Western Australia School of Law. Professor Freeland’s article, entitled ‘Fly Me to the Moon: How Will International Law Cope with Space Tourism?’, examines whether the current international legal regimes covering the use of air and space are capable of dealing with the advent of a commercial space industry. He argues that the existing international law was primarily drafted with other concerns in mind, and as a result is unsuited to large-scale commercial space activities. Freeland also provides some suggestions about particular areas in which principles need to be developed, particularly around ethical issues such as the pollution of the space environment and the protection of heritage sites. The respondent will be Frans von der Dunk, Harvey & Susan Perlman Alumni and Othmer Chair of Space Law at the University of Nebraska College of Law.

Our third contributor is Dr Douglas Guilfoyle, Lecturer in Law at the Faculty of Laws, University College London. Dr Guilfoyle’s article, entitled ‘The Laws of War and the Fight against Somali Piracy: Combatants or Criminals?‘ argues that the laws of armed conflict are prima facie inapplicable to the current counter-piracy operations in the Gulf of Aden off Somalia, and further, that the application of these principles would be counter-productive or question begging given that there is already a clearly established framework for law-enforcement operations at sea. Guilfoyle also examines some issues relating to the applicability of the laws of armed conflict to civil war insurgents who take to the seas to overthrow their government. The respondent will be Beth Van Schaack, Associate Professor at Santa Clara University School of Law and contributor to IntLawGrrls.

We hope that you enjoy participating in the upcoming discussion around these three areas of international law.

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

Tim Farhall, Christopher Hibbard and Mary Quinn

2010 Editors

Jordina Rust

2010 Assistant Editor

The Perils of International Aid Efforts: U.N. Responsible for Bringing Cholera to Haiti

by Julian Ku

The stories of the earthquake and then the cholera coming out of Haiti continue to horrify and sadden, if it the global media wasn’t already numb from Haiti stories.  There is plenty of blame to go around: Bill Clinton, the Haitian government, and now we can add the United Nations to that list.

Almost everyone now accepts that the United Nations brought cholera to Haiti last month. The evidence is overwhelming and many experts (including the head of Harvard University’s microbiology department, cholera specialist John Mekalanos) made up their minds to that effect several weeks ago.

Poverty and a lack of rudimentary infrastructure compels much of Haiti’s population to drink untreated water, but there has been no cholera there for decades. Haitians have no experience with – and therefore little resistance to – the disease. All the bacterial samples taken from Haitian patients are identical and match a strain endemic in southern Asia. Cholera broke out in Nepal over the summer, and in mid-October a new detachment of Nepalese UN troops arrived at their Haitian base in Mirebalais, near the Artibonite river. A few days later Haitians living downstream of the base started to get sick and the disease spread rapidly throughout the region. On 27 October, journalists visited Mirebalais and found evidence that untreated waste from UN latrines was pouring directly into an Artibonite tributary.

Interestingly, I am not aware of any legal mechanisms that would allow Haitians to recover damages or seek some sort of accountability for the negligence (apparent) here.  But surely some political accountability would be nice. In any event, given the longstanding record of failure by both the Haitian government and the U.N., perhaps it is time to reconsider that annexation idea.

No, Facebook, I Am Not Friends With Hitler

by Kevin Jon Heller

I know Facebook does some strange things regarding friend suggestions, but I think this “tag your friends” request might take the cake.  Behold how Facebook interpreted a photo I took of Mein Kampf in the Nuremberg Documentation Center:

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Lieber Society Military Prize

by Kenneth Anderson

If you are a member of a nation’s regular or reserve armed forces (not just the US military), think about submitting a paper to the American Society of International Law’s annual Lieber Society Military Prize paper competition.  The submission for the 2011 prize is due by December 31, 2010.  Details below the fold. Continue Reading…

The End of Treaties?

by Duncan Hollis

So thinks James P. Rubin in an Op-Ed in today’s NY Times.  His argument comes in two parts.  First, a minority of the Senate plays an obstructionist role, which means that the United States simply doesn’t join important treaties: 

For much of the world, treaty ratification is a simple matter. In parliamentary systems like those in Britain and France, ratification is virtually automatic, because the government also controls the legislature. In China, it is a mere formality ordered from the top.

But the same treaties that are so easily ratified in other countries are, for good or ill, often left to languish in the Senate, where 67 votes are needed for approval. The result is international frustration with American leadership, as many widely shared goals — from children’s rights to a ban on nuclear weapons testing — are held hostage by a small group of senators, who often represent a tiny percentage of the American public.

Second, he argues that U.S. domestic law commitments can substitute for its treaty commitments

Fortunately, there is an alternative: we could achieve roughly the same results without signing a treaty. International negotiations would still be needed, but instead of a binding treaty, the administration could commit to pursuing Congressional action to accomplish the agreed terms. The effect would be the same, but the process would be much easier at home, requiring a simple majority in the Senate, instead of two-thirds.

This strategy is already being used on climate policy. After the Senate failed to ratify the Kyoto Protocol on climate change that was negotiated during the Clinton administration, it became clear that any treaty to cut greenhouse gas emissions would be a lost cause. In recent years negotiators have continued to pursue international climate agreements, but with the understanding that adherence would occur through domestic energy legislation that the rest of the world could then examine and assess.

I’m not sure that I buy either argument. The Senate’s role is nothing new to American politics or the world stage (see, e.g., Versailles).  Neither is the notion that simple majorities of the Congress can supplant the Senate’s supermajority (see, e.g., the Uruguay Round Agreements Act, authorizing U.S. participation in the WTO).  Moreover, the contemporary example Rubin cites — using congressional legislation rather than a treaty to limit greenhouse gas emissions — only seems to undercut his argument.  Last time I checked, Congress had refused to pass climate legislation, and future prospects of doing so remain dim.  On the contrary, a global treaty (assuming it solves the obvious coordination and collective action problems inherent in global warming) might actually be the one thing that could provide Congress with the necessary impetus to pursue such legislation. 

That said, Rubin’s Op-Ed did raise an interesting question about the on-going START stalemate.  Why do the United States and Russia need to do this via legally binding commitments at all?  Could the United States and Russia simply do a new START agreement via a political commitment?

Catalonian Independence Group Gets World Record For Largest Lip-Synching Video

by Chris Borgen

Let’s just put this one in the “I couldn’t have made this up” files. According to the explanation attached to the YouTube clip:

Lip dub for the independence of Catalonia and the rest of the Catalan Countries, recorded October the 24th 2010 in the city of Vic. Achieving a total amount of 5.771 participants, the World Records Academy awarded the World Record for being the lip dub with highest participation ever. The initiative was born by a group of Catalans, whose aim is to let the whole world know that Catalonia is a nation, and without its independence it cannot be assured its survival and future. The chosen song was composed by the group “Obrint Pas” and its title is “La Flama”.

And it’s a ska tune, no less.

The Degraded State: Some Can’t Even Get Checking Accounts

by Peter Spiro

Here’s an interesting story from FP’s The Cable: Several dozen countries can’t get checking accounts with which to operate their embassies in Washington.  Angola is the lead example: the Bank of America shut down its accounts here and no one else appears to want its business.

The Angolans, frustrated and running out of options, are considering reciprocity measures, such as closing the bank accounts of the U.S. embassy in Angola, refusing to receive the credentials of incoming U.S. Ambassador Christopher McMullen, or closing the banks accounts of U.S. companies in Angola, such as Chevron, Exxon, BP, and Boeing, according to a source in the American business community with interests in Angola and who is closely monitoring the crisis.

“We don’t know why it is happening,” the Angolan diplomat said. “In the context of the Vienna Convention, we hope the American administration is going to take measures for us to operate here. The administration says that Angola is a strategic partner to the U.S., so we would like at least to be treated as a strategic partner… A diplomatic mission cannot operate anywhere without a bank account.”

Article 25 of the Vienna Convention of 1961 on Diplomatic Relations states, “The receiving State shall accord full facilities for the performance of the functions of the mission.”

Why are the banks running away from embassy business? According to the State Department official, several banks, including Bank of America, are calculating that the effort spent making sure government accounts are not being abused for money laundering purposes, sometimes with suspected links to terrorism, is becoming too complicated and costly to justify keeping the accounts.

Leaving the VCDR complications aside, this kind of situation would have been unthinkable in the old world, both because even the worst bad guys had their bankers in Washington and because any difficulty would have been solved with a phone call, high level (USG) official to high level (bank) counterpart.  That BoA can’t take what has to be a pretty small hit in dealing with these sovereign entities (presumably building its favor bank in the process) says something about one aspect of the new public/private dynamic.

Microfinance Meltdown in India

by Kenneth Anderson

I have done a fair amount of work in microfinance and closely related areas (development finance involving business clients with larger-than-microfinance loans) in the developing world, and am overall a big fan.  As many people are.  The question that has long loomed, however, is whether it can or should scale upwards to become a full-fledged part of the global capital markets, or whether it should remain a highly subsidized development activity for very poor people or, most plausibly, some of both.  I wrote about this problem in an article in 2002 — asking whether sufficient attention had been given in the conceptualization of microfinance to the question of whether it was supposed to serve as:

  • a genuinely economic connection between very poor people and the capital markets, or instead
  • a kind of “faux-market” in which the tools of the market were deployed as a form of artificially sustained discipline over the efficient use of resource, but nonetheless massively subsidized and, in that sense, never genuinely part of the global capital markets but instead always some sort of philanthropy.

I, like everyone else I have known in this field, have wanted to see some of the first, some of the second and, most crucially, some kind of “venture philanthropy” merger of the two that would somehow combine:

  • the discipline of genuine capital markets to induce efficient use of capital to promote geniune economic growth;
  • access to much larger pools of capital than are available to government aidagencies or NGOs, through the commercial capital markets;
  • subsidies or guarantees to facilitate the entry of for-profit entities into the sector, in order to help them gain experience with loan-making, monitoring, default, and other costs of microfinance, and to overcome the problem of microfinance’s problematic diseconomies of scale compared to other commercial lending;
  • the many social benefits of microfinance for both very poor people and not-so-poor but still poor people as separate groups; and above all,
  • scalability.

So, back in the 1990s, I proposed internally to the Open Society Institute structures of credit guarantee facilities that would allow a consortium of philanthropic and government aid agencies to offer part-guarantees to banking institutions seeking to enter the sector, with the aim of doing all the above good things.  At the time — and in most situations in which I’ve inquired about this since, with the very particular exception of India — the response from the microfinance organizations was, well, that’s nice — but as a matter of fact, at this point we don’t suffer from a general lack of capital.  We can get capital at a zero or negative capital cost in the form of interest free loans from governments or straight out donations.  We don’t need to tap the capital markets, even in a subsidized form at this point, thanks very much.  Maybe someday; not now.

The reasons why this is so are important.  The microfinance providers with whom I was speaking were generally in the business of microfinance for poor people in which the transaction costs were clearly extraordinarily high for the size of the loan and possible rate of return, if one took into account all the monitoring and active involvement with the borrowers, etc., etc.  And that was leaving aside completely the transaction costs of the foreign donors and any other upstead costs; it was just the narrow cost of a local NGO engaging in microfinance loans.  Everyone likes to tout — or anyway did like to tout — the fantastic repayment rates of these microloans as evidence of client creditworthiness .  But within the sector, practitioners have always been very clear that this is on account of large investments at the front end of monitoring and reliance upon the heavy hand of social stigma and joint and several liability (as a substitute for material collateral) of other members of a “lending circle” as disciplinary mechanisms to ensure repayment.

This is nothing new; microfinance practitioners, although sometimes evangelical in their zeal for it as a development tool, have a pretty decently practical streak, and recognize that this is a subsidized — heavily subsidized — activity when it comes to most clients.  It is another instance of the problem that much of development, as William Easterly tirelessly points out and Jeffrey Sachs seems gradually to be acknowledging, is not a scalable activity.  It takes place at the capillaries, and the blockages are not the mass flows of capital — it is what happens in the “last mile.”  Talking with a finance academic who has decided to start teaching in this area — he remarked somewhat ruefully, I can’t get my students interested in this because the whole point of finance is scalability.  But there are many extraordinarily bright and experienced finance experts, people who perhaps made some money on Wall Street and decided to do something more personally satisfying in the last fifteen years, who have been bringing an immense amount of sophistication to the problem of applying finance to development.  Parts of it have worked, and parts of it are showing the problems, which is a somewhat understated way of stating the current banking for the poor crisis in India. Continue Reading…

Tory Mayor of London to Bush: Don’t Visit Europe

by Kevin Jon Heller

This is how real conservatives roll — not the faux American kind, who believe that waterboarding is wrong only when someone else is doing it:

It is not yet clear whether George W Bush is planning to cross the Atlantic to flog us his memoirs, but if I were his PR people I would urge caution. As book tours go, this one would be an absolute corker. It is not just that every European capital would be brought to a standstill, as book-signings turned into anti-war riots. The real trouble — from the Bush point of view — is that he might never see Texas again.

One moment he might be holding forth to a great perspiring tent at Hay-on-Wye. The next moment, click, some embarrassed member of the Welsh constabulary could walk on stage, place some handcuffs on the former leader of the Free World, and take him away to be charged. Of course, we are told this scenario is unlikely. Dubya is the former leader of a friendly power, with whom this country is determined to have good relations. But that is what torture-authorising Augusto Pinochet thought. And unlike Pinochet, Mr Bush is making no bones about what he has done.

[snip]

“Waterboarding” is a disgusting practice by which the victim is deliberately made to think that he is drowning. It is not some cunning new psych-ops technique conceived by the CIA. It has been used in the dungeons of dictators for centuries. It is not compatible either with the US constitution or the UN convention against torture. It is deemed to be torture in this country, and above all there is no evidence whatever that it has ever succeeded in doing what Mr Bush claimed. It does not work.

[snip]

How could America complain to the Burmese generals about the house arrest of Aung San Suu Kyi, when a president authorised torture? How can we talk about human rights in Beijing, when our number one ally and friend seems to be defending this kind of behaviour? I can’t think of any other American president, in my lifetime, who would have spoken in this way. Mr Bush should have remembered the words of the great Republican president, Abraham Lincoln, who said in 1863 that “military necessity does not admit of cruelty”. Damn right.

Love the comparison to Pinochet!

Israel Behind Stuxnet Attack on Iran?

by Kenneth Anderson

I’m going to leave it to the cyberwar legal experts to discuss the legal issues, but regarding the recent Stuxnet worm that Iran reports infected particularly its nuclear program, the New York Times says

Experts dissecting the computer worm suspected of being aimed at Iran’s nuclear program have determined that it was precisely calibrated in a way that could send nuclear centrifuges wildly out of control.

Their conclusion, while not definitive, begins to clear some of the fog around the Stuxnet worm, a malicious program detected earlier this year on computers, primarily in Iran but also India, Indonesia and other countries.

The paternity of the worm is still in dispute, but in recent weeks officials from Israel have broken into wide smiles when asked whether Israel was behind the attack, or knew who was. American officials have suggested it originated abroad.

The new forensic work narrows the range of targets and deciphers the worm’s plan of attack. Computer analysts say Stuxnet does its damage by making quick changes in the rotational speed of motors, shifting them rapidly up and down.

Costa Rica Files ICJ Case Against Nicaragua

by Julian Ku

This is all you can do, I suppose, when you don’t have an army to resist invasions (and can they bring Google in as a third party?)

(CNN) — Costa Rica has taken its border dispute with Nicaragua to international court, repeating claims that its territory has been invaded.

In a statement Thursday, Costa Rica’s foreign ministry said the country had filed a lawsuit at the International Court of Justice in The Hague, Netherlands, to end a situation that “threatens imminent and irreparable harm” to Costa Rica.

The suit asks the court to stop “the construction of a canal on Costa Rican soil,” according to the statement.

Tensions between Nicaragua and Costa Rica have flared over Calero Island, a parcel of land on the Atlantic coast. Nicaragua denies its troops are in Costa Rican territory. Costa Rica claims it has been invaded.

Costa Rica claims that in addition to the Nicaraguan troops, a dredging project in the river is dumping sediment on its side of the border, and that a Costa Rican flag in the area was replaced with a Nicaraguan flag.

China’s Drone Production

by Kenneth Anderson

China has been moving to catch up with the US and Israel in production of military UAV drones, reports the Wall Street Journal today, in an article by Jeremy Page (Friday, Nov. 19, 2010, A11).   The article says that the uptick in drone output has surprised the West:

Western defense officials and experts were surprised to see more than 25 different Chinese models of the unmanned aircraft, known as UAVs, on display at this week’s Zhuhai air show in this southern Chinese city. It was a record number for a country that unveiled its first concept UAVs at the same air show only four years ago, and put a handful on display at the last one in 2008.  The apparent progress in UAVs is a stark sign of China’s ambition to upgrade its massive military as its global political and economic clout grows.

I don’t think Western experts should have been all that surprised, at least looking to the long term.  As has been noted repeatedly here at OJ, drones are not some fantastically advanced technology, beyond the reach of all but DARPA.  On the contrary, the avionics and flight control mechanisms have been around for a long time, with tweaks to the basic concept of remote controlled flight provided by advanced in communications and computers.  Sometimes journalists and others make dire predictions about the US or Israel having set off an “arms race” over drone deployments – the US and Israel, then China and Russia, then India and Pakistan …. but this misses the point.  Drones will spread because they will take over significant parts of civil aviation in coming decades, no matter what, and that will be so in any industrialized economy.  The technology is widely available and represents a vast cost savings – military aviation has many additional reasons why drones are useful, but this is part of a broader wave for all aviation.

It is not really all that different from DARPA subsidizing research into self-driving vehicles.  This has obvious applications to urban warfighting, which is why DARPA has funded it for years – but winning researchers from the DARPA competitions for self-driving vehicles have now moved over to work with Google, finally deploying self-driving vehicles on the streets of the Bay Area this year.  It’s not an arms race; it is the future of parts of vehicle automation for both civilian and military vehicles.

The real areas of technical competition in UAVs are not in avionics, nor in the weaponry – though improvements there will make them smaller and more discriminating as well – but in the sensors deployed on the drones.  Sensors are hard – even today, the drone sensors, as far as we know publicly, are still in the range of video.  There’s a lot of room for sophistication.  The Economist had a good article recently on both the difficulties and the gradual improvements in the abilities of robotic “eyes” to “see” things.  That’s the future technical competition in robotics, or at least an important part of it – much less so the avionics.  As for arms races, the true arms race in the military UAV world will not be a race to deploy – everyone who wants UAVs will have them, in various sizes.  The race that matters will be the technological counters to drones – the counter-technologies that will bring them down out of the sky.  That, we have yet to see deployed, but it will arrive very soon.

Google’s 21st-Century Internet Trade Agenda

by Roger Alford

This Google published an extremely useful and interesting white paper on the 21st-century Internet trade agenda. The basic argument is that the Internet will never reach its full potential if governments continue to impose restrictions on the free flow of information.

The statistics included in the report are amazing. Online traffic has increased by 66 percent in the past five years and one quarter of the world’s population (1.7 billion people) use the Internet. Annual Internet-based commerce soon will reach $1 trillion. Internet and telecom services contributed 3.3 percent of global GDP in 2004, compared with 1.8 percent in 1990.

Yet despite this growth, governments are increasingly aggressive in regulating the Internet. They do so through technology, licensing, legal orders, and self-censorship. Forty governments have instituted broad-scale restrictions of information flow on the Internet. As a result, the trade ports of the 21st-century are routinely blocked.

Such restrictions should be challenged through existing and new trade rules. Google argues that the existing WTO service rules require governments to (1) provide transparency; (2) provide judicial and independent review of administrative decisions; (3) objectively and impartially administer rules; and (4) provide non-discriminatory treatment. The document includes numerous references to key WTO rules and decisions in support of these objectives.

Going forward, Google argues that governments must (1) close gaps in the existing WTO framework in order to ensure GATS disciplines apply to all Internet trade and (2) negotiate new rules that reflect today’s information economy in multilateral and bilateral trade agreements. The objectives for the future trade agenda would be to advance the unrestricted flow of information on the Internet, promote even stronger transparency rules, and ensure that Internet services can be provided without local investment.

It’s almost impossible to understate the importance that the Internet will have for international trade in coming decades. Yet we have a WTO regime that was established when the Internet was in its infancy. Google’s suggestions for a more robust regulatory regime of Internet trade is most welcome and deserves serious consideration.

Lindsey Graham on All Options Open re Iran and Nukes

by Kenneth Anderson

Tod Lindberg, editor of the Hoover Institution’s Policy Review, reports in the Weekly Standard on a blunt message delivered by Senator Lindsey Graham (R-NC) at a discussion meeting of senior transatlantic policy makers, the Halifax International Security Forum.  It’s not a forum that would attract a lot of attention, but the attendees are very senior in transatlantic relations and NATO.  Quoting from Graham:

Nobody would like to see the sanctions work any more than I would because I’m still in the military [Graham is a colonel in the Air Force reserves who has served active duty during Senate breaks in Iraq and Afghanistan] and I get to meet these young men and women on a regular basis, and I know what it’s been like for the last nine years. So the last thing America needs is another military conflict. But the last thing the world needs is a nuclear-armed Iran. And if you use military force, if sanctions are not going to work and a year from now it’s pretty clear they’re not going to work, what do our friends in Israel do? So I would like the president to make it abundantly clear that all options are on the table. And we all know what that means.

Tod LIndberg’s report adds that Graham was just winding up:

And if that day ever came, my advice to the president, in open session here, if you take military action against Iran as the last effort to stop their nuclear ambitions, you do open up Pandora’s box. But if you let them acquire nuclear weapons, you’ll empty Pandora’s box. So my view of military force would be not to just neutralize their nuclear program, which are probably dispersed and hardened, but to sink their navy, destroy their air force, and deliver a decisive blow to the Revolutionary Guard. In other words, neuter that regime. Destroy their ability to fight back and hope that people .  .  . inside Iran would have a chance to take back their government and be good neighbors to the world in the future. So that’s what I mean by being tough, sir, that everything is on the table and that we need to start talking more openly about that because time is not on our side.

From the standpoint of OJ as an international law blog, I suppose I’d note this as in the long tradition of state practice and opinio juris on what the use of force under the Charter actually means.  The diplomats and officials there might have been shocked and disturbed at the prospect that the US might decide to attack Iran and seek to end its ability to acquire nuclear weapons; that some international lawyers might regard it as per se illegal under the Charter does not seem to have been the source of their dismay.  One can continue to argue the literal words of the Charter and express concern about violations of them; one can go with the Justice Sima route and note that state practice suggests that literal reading is not plausible any longer; or one can go full-on desuetude as Michael Glennon does.  What I don’t think works is simply to ignore the record of state practice and recite the formula of the Charter; I accept the Glennon view while others might sharply disagree, but in any case, it seems to me not possible now, if it ever was possible, not to address the facts of how states behave in this of all matters.

ps.  I should belatedly add two things.  I’m not commenting here on Graham’s views on the politics of the situation, inside or outside Iran; I think it would be hard to come up with an international action with more possible unintended and unforeseeable consequences.  On the legal issues, I’m here referring not just to things like Israel bombing nuclear facilities, but Michael Glennon’s claim about the “desuetude” of the legal rule regarding the Charter role of the Security Council – a broader claim about state practice and opinio juris than this situation, but also one that his paper (and in his new book, Fog of Law) limits to that particular Charter rule.

Wittes on the Ghailani Verdict

by Kevin Jon Heller

I don’t have time to respond to the Ghailani verdict, which Julian notes below.  I would simply direct readers to Ben Wittes’ superb post at Lawfare, in which he criticizes those who view the verdict as a vindication of the military commissions.  Here’s a snippet:

Second, it really is not clear that prosecutors would have fared better in a military commission. There is a fairly pervasive myth that military commissions represent the tough option, while federal courts represent the soft, wussy option. You know the trope: Military commissions represent a war mentality (tough, manly, conservative), while federal courts represent a pre-9/11 law enforcement mentality (weak, emasculated, liberal). The gross underperformance of the military commissions over many years has not shaken the trope, nor has their quiet development towards greater due process norms. There is no particular reason to think that the government would have gotten in before the key witness that the court in New York excluded. The simple reality is that one cost of interrogating Ghailani in the CIA’s high-value program over a long period of time is to make any subsequent trial difficult.

Read the entire post!

CEDAW is Back! U.S. Senate Holds CEDAW Hearings

by Julian Ku

Here we go again!  The U.S. Senate Committee on Foreign Relations may hold a hearing today on U.S. participation in the Convention for the Elimination of Discrimination Against Women (I say may because I can’t seem to find it on the Senate FRC schedule).  This is at least the third time the Committee has looked at CEDAW and, I believe, CEDAW has cleared this committee twice before with large majorities. So I don’t expect anything different this time around.

Debates over CEDAW have a strange pattern. Proponents simultaneously claim CEDAW is crucial to protecting women’s rights, and at the same time point to doctrines like non-self execution and reservations to CEDAW as evidence CEDAW will not require any change in U.S. law.  Proponents also typically pooh-pooh pronouncements from the committees formed to report on CEDAW implementation.   Opponents of CEDAW usually take the opposite tack, often overstating the importance and impact of CEDAW.

Christina Hoff Summers does a good job of making a reasonable and sensible case against CEDAW here.  I’m not sure she is right about that, but she is probably right that the legal effect of CEDAW is still somewhat uncertain. But So far courts have been pretty uniform in upholding reservations to other human rights treaties.  But she is certainly right that most international law scholars think the reservations have no effect and that there will be a push after ratification to get courts to recognize CEDAW and ignore the reservations.

If the hearing is held today, it will be interesting to see the U.S. government’s views on the effectiveness of the reservations to CEDAW.  Stay tuned.

Time to Give Up on Civilian Trials for Gitmo Detainees

by Julian Ku

Wow! The first civilian trial of a Gitmo detainee, Ahmed Ghailani, results in a near-acquittal.

The first former Guantanamo Bay detainee to be tried in federal criminal court was found not guilty on Wednesday on all but one of the 285 counts he faced for his role in the 1998 East Africa embassy bombings.

The Washington Post reporter follows up this lead with an unsourced assertion that is, however, totally right:

The verdict will likely kill the already fading prospect of putting other Guantanamo detainees on trial in U.S. civilian courts.

And welcome to indefinite detention, Mr. Khalid Sheikh Mohammed! How did we get here to a result that no one is really happy with? It’s a long story, and it looks like we will get to hear all about it when the new Republican House holds excruciatingly hostile hearings on this subject.

Surprisingly Free e-SOS Podcast

by Duncan Hollis

I have my podcast debut this week over at Surprisingly Free — “a weekly podcast featuring in-depth discussions with an eclectic mix of authors, academics, and entrepreneurs at the intersection of technology, policy, and economics.”  I talk about my forthcoming article, An e-SOS for Cyberspace, with Surprisingly Free’s host, Jerry Brito. Click here for a listen.

Culture Clash! or, Scenes from a Separatist Cook-Out

by Chris Borgen

Gotta say, even though I write about issues of self-determination, secession, and statehood, I didn’t expect to read this on the front page of the Arts and Leisure section of the Sunday New York Times:

At a glance it looked like any small-town fair, with smoke wafting from the barbecue, families gathering around picnic tables, music percolating over loudspeakers and doting parents trailing after happy toddlers in front of white tents hawking brightly colored T-shirts and knickknacks.

But the Ghjurnate Internaziunale di Corti (the International Days of Corte) were hardly fun and games. It turns out that militant separatists, like baseball owners, car salesmen and trade unionists, also convene regularly to hash out strategies, exchange war stories and rally the troops. The Days, a late-summer annual affair, bring together militants from around the world. Those T-shirts and knickknacks were printed with hooded gunmen pointing rifles, and the barbecue raised money for jailed comrades. Even a few toddlers, like their parents, were decked out in military fatigues…

Sardinian separatists, Basque and Catalan nationalists, Melanesian Kanaks from New Caledonia, Occitanes from Provence and a few leaders of Sinn Fein joined locals to speechify and grumble about prisoners, debate tactics and talk cultural politics. Battles over sovereignty and independence are being waged far less often these days as violent campaigns than as hearts-and-minds political struggles over identity. And identity means culture.

State-building has long gone hand-in-hand with linguistic and cultural politics:

In the 19th century, rising modern states obliterated local cultures to fortify national identities only to pave the way for their revival at the end of that century. The same happened during the last century when the Soviets and Franco’s Spain, along with the British empire, imposed cultures on diverse peoples who, as soon as the opportunities arose, reasserted their own identities in more or less explicitly political protest.

But now cultural identities are fragmenting more than ever.

The irony is that constructing a supranational Europe, rather than homogenizing, say, Basques and Occitanes, into undifferentiated “Europeans,” has helped these movements to define themselves more clearly. For one thing, founded or unfounded fears of homogenization can be a spur to action (or at least to a sharper sense of self-definition). Moreover, (and seemingly contradicting this first point), EU practices can seem more protective of national minorities than local policies. Maite Goientxe, a Basque representative at the Days of Corte, notes:

“Like all cultural questions, language is ultimately a political matter. Basque is not permitted today in my part of France, which means Basque representatives from my region can speak Basque at the Parliament in Brussels, but not back home. From our perspective that’s discrimination. Critics say separatists promote division and exclusion, but we say independence movements are about the opposite of exclusion. We want to get rid of the exclusion we feel today.” [Emphasis added.]

Perhaps moreso than the much-anticipated ICJ Advisory Opinion on Kosovo, EU policies towards language rights and cultural diversity will likely be important factors in framing the ongoing push-and-pull between national minorities and national governments in the EU. If the Days of Corte are any indication, linguistic and cultural politics (more so than ideological or ethnic politics) will likely remain the central issues in this debate.

Dana on the Principle of Legality in International Sentencing

by Kevin Jon Heller

While doing research for an essay on sentencing and the rights of defendants in international criminal law — my contribution to the international law/Islamic law conference to which I’m now heading — I stumbled across an exceptional essay by Shahram Dama, a professor at John Marshall Law School.  Here is the abstract:

Although ranking among the most fundamental principles of criminal law, nulla poena sine lege (no punishment without law) receives surprisingly little attention in international criminal justice. Indeed, it may be considered the ‘poor cousin’ of nullum crimen sine lege (no crime without law), which has attracted far greater consideration. Given that they work in tandem as principles of legality, the neglect of nulla poena sine lege is difficult to justify, although not without explanation. As one prominent scholar observes, nulla poena affects only proven criminals while nullum crimen protects the mass of respectable citizens. While most criminal justice systems have made considerable efforts to close this gap over the years, international criminal justice has not. The potential contribution of nulla poena sine lege has been overlooked on the international level by policy makers, drafters, and judges. Likewise, there exists a lacuna in academic scholarship on this subject. Under-theorization of nulla poena in international criminal justice stalls the maturation in international law of this long standing criminal law principle, keeps dormant its contribution to justice, and challenges the legitimacy of international punishment.

This article aims to redress this imbalance by (1) developing the normative content of nulla poena sine lege under international law, (2) critically evaluating the statutes of international criminal courts and their sentencing jurisprudence on genocide, crimes against humanity and war crimes, and (3) advancing a theory for understanding the role and potential contribution of nulla poena to international justice. I argue for an understanding of nulla poena that goes beyond its simply caricature as a principle of negative rights, designed merely to prevent retroactive punishment, to one that captures its full contribution to justice, including equality before the law, consistency in punishment, and legitimacy in international prosecutions. By advancing an international standard for nulla poena sine lege, I hope to lay a foundation on which international sentencing can more readily achieve the goals of the international community in prosecuting and punishing perpetrators of mass atrocities.

It’s a very sophisticated essay, by far the best that I’ve read on the topic.  So, to quote the inestimable Larry Solum, read Dana!

Carolyn Evans New Dean of Melbourne Law School

by Kevin Jon Heller

I am delighted to announce that my colleague Carolyn Evans has been appointed Dean of the Melbourne Law School — the first female Dean in the law school’s history.  Carolyn is one of the world’s leading law and religion scholars, as her biography attests:

Carolyn has degrees in Arts and Law from Melbourne University and a doctorate from Oxford University where she studied as a Rhodes Scholar and where she held a stipendiary lectureship for two years before returning to Melbourne in 2000. She also qualified to practice law and is a barrister and solicitor of the Supreme Court of Victoria. In 2010, Carolyn was awarded a Fulbright Senior Scholarship to allow her to travel as a Visiting Fellow at American and Emory Universities to examine questions of comparative religious freedom.

Carolyn is the author of Religious Freedom under the European Court of Human Rights (OUP 2001) and co-author of Australian Bills of Rights: The Law of the Victorian Charter and the ACT Human Rights Act (LexisNexis 2008). She is co-editor of  Religion and International Law (1999, Kluwer); Mixed Blessings: Laws, Religions and Women’s Rights in the Asia-Pacific Region (2006 Martinus Nijhoff) and Law and Religion in Historical and Theoretical Perspective (CUP 2008). She is an internationally recognised expert on religious freedom and the relationship between law and religion and has spoken on these topics in the United States, United Kingdom, Russia, China, Greece, Vietnam, India, Hong Kong, Switzerland, Malaysia, Nepal and Australia.

As readers know, I was a big fan of James Hathaway, our previous Dean. I’m glad that our law school will continue to be in such capable hands!

A Head-Spinning Self-Execution Story

by Duncan Hollis

This is a wild tale of self-execution (which, I’m fairly sure, is the first time anyone has used the adjective “wild” to describe the self-execution concept). 

For years, the Bush Administration sought to get the U.S. Congress to amend the Arms Export Control Act (AECA) to ease licensing restrictions on arms exports to two of the United States’ closest allies — the United Kingdom and Australia.  Federal officials were unsuccessful in this effort.  So, instead, in 2007, they negotiated bilateral treaties with both countries (see here and here).  The treaties include U.S. commitments to exempt certain exports to the U.K. and Australia from the AECA’s restrictions and requirements.  For our purposes, the most interesting part of those treaties is preambular language, which reflected the parties’ “Understanding that the provisions of this Treaty are self-executing in the United States.”  In other words, in both contexts, the parties anticipated that these treaties would operate as U.S. law on ratification, and, thus, supersede the more onerous provisions of the AECA under the later-in-time rule.  This was a remarkable and (so far as I know) unprecedented move within a treaty text (made all the more interesting since it came from an Administration that in other contexts was openly hostile to self-executing treaties, not to mention that the other countries involved do not permit self-execution within their respective domestic systems). 

Fast forward to this fall, when the U.S. Senate considered giving advice and consent to these treaties.  Unlike the federal government, however, the Senate was less sanguine about the prospect of a self-executing treaty trumping the AECA. As a result, the Senate conditioned U.S. ratification on the following declaration: “This Treaty is not self-executing in the United States, notwithstanding the statement in the preamble to the contrary.”  Why on earth did they include that declaration?  Well, on further questioning, the federal government did an about-face and informed the Senate Foreign Relations Committee (SFRC) that ‘‘Notwithstanding the statement in the preamble of these Treaties, the Treaties are not self-executing. They will be implemented through legislation and regulations thereunder.’’ As such, Congress would have to pass the desired amendments to the AECA to satisfy the U.S. treaty obligations, rather than having the treaty itself effect such amendments.

The Senate gave its advice and consent to the two treaties on Sept. 29, 2010.  Congress has also apparently crafted the necessary statutory amendments, meaning that–even if the treaties are non-self-executing–U.S. law should comport with U.S. obligations under each treaty when they enter into force.

But even if compliance seems not to be at issue, my own head is still spinning from this course of events. I’ve got four outstanding questions.

The Al-Aulaqi Hearing

by Kenneth Anderson

Probably many readers have seen this over at Lawfare, but Ben Wittes has a very interesting account of the oral argument from a few days ago on the Al-Aulaqi targeted killing lawsuit.  A snippet:

Judge Bates was deeply engaged with counsel for both sides throughout the argument. At the hearing’s end (shortly after I had left), he made clear that his ruling is not imminent. He did not tip his hand decisively as to which way he will rule. That said, I think we can venture a few inferences and conclusions based on his comments and questions. Those inferences and conclusions are generally quite favorable to the government.

In Honor of the 35th Anniversary of Michael Walzer’s Just and Unjust Wars

by Kenneth Anderson

I’m at Penn Station, waiting for the train from New York City back to DC, happy but slightly dazed after an intense three day conference in celebration of the 35th anniversary of Michael Walzer’s Just and Unjust Wars.  My thanks and congratulations to Gabby Blum, Ian Scobbie, and Joe Weiler for organizing it, and to NYU for hosting it.  I was humbled to be in the presence of so many great intellectuals, not just in law, but in moral philosophy – Professor Walzer himself, Jean Elshtain, Thomas Nagel, and others.

Three intense days, with Professor Walzer offering a few short comments at the end.  I think it is okay to paraphrase them from my notes.  His final comments go to a running theme of the meeting – the distinction, and its persistence or not, of a moral and legal independence of jus in bello from jus ad bellum.  He says that even though a defender of their independence, they come together in the following crucial and urgent moral way.  (This is a paraphrase, not a direct quote, and should not be quoted as something directly said by Professor Walzer):

The worry is that if you fight in accordance with the legal regimes of international law, you can’t win.  That is a major challenge, and I was very happy that General [Charles] Dunlap denies that and says you can.  Still, it is a worry.  It must be possible for the good guys to win within the rules, at least as a possibility, but also as a real possibility.  That’s where ad bellum and in bello come together: to win a just war fighting justly.

But suppose it isn’t possible.  That’s what moral philosophers partly do – worry.  What follows if it is not possible, or not a real possibility?  What then?  Well, the rules would have to be changed.  We would have to reconsider the content of the rules jus in bello if we could not live within jus in bello and still have the just side win on the battlefield.

ps.  One general observation about the tenor of Professor Walzer’s (paraphrased) remark here.  Just and Unjust Wars is taken in the United States academic and human rights advocacy community as the manifesto of the introduction of individual human rights in war.  In part that is right.  But it is correct in the sense of rejecting “realism,” in the amoral Hobbesian “by a necessity of nature” sense, on the one hand – but not thereby embracing a genuinely full Christian view of just war as an expression of immanent natural law, on the other hand.  If the meta-theory underlying Walzer’s normative ethics of war is one of making it secular and an expression of modernity, then it does so by giving up the immanent ground of God’s natural law.  In the full Christian just war ethics, justice is the key concept, because it is an expression of the love of God for all his children, and not the far narrower and circumscribed (mere) notion of rights, the obligations which we owe to one another because man is the measure of all things.

Rights gives up the fully foundational, fully immanent understanding of justice of Christian just war ethics – not in favor of relativism as to right and wrong in war, but in favor of something that seeks moral grounding and judgment in fact – and yet still vastly more contextual, contingent, and human than a fully realized theory of justice in war would offer.  We see through a glass darkly, etc. – and, alas, that’s all we ever hope to do.  And yet practical wisdom requires, as Walzer emphasizes in the opening chapters to Just and Unjust Wars, that we make moral judgments as best we can. But that is a long ways, I at least would suggest, from the way in which the rights theory of war has taken Walzer’s work in its long elaboration in politics and institutions.  Walzer’s remarks above point to something that I, at least, would see as a theme strongly present in Walzer’s opening chapters in Just and Unjust Wars – viz., rights in the service of a moderate moral realism.  It is not a theory of rights in war that is opposed in some way to moral realism, but that, I believe, is how Walzer’s theory has been deployed in the decades since the book’s publication in 1977.

(In my further view, of course, the millennial dream of what international criminal law is supposed to do is essentially the reintroduction of full immanence to the ethics of war by the backdoor means of courts whose promise will be fulfilled, but always at some moment forward, in the fullness of time.  Time as the universal solvent of all things, a sort of creeping immanence.)

The New World of International Trade Arbitration

by Roger Alford

In the past twenty years the world of investment arbitration has taken the commercial world by storm. There are over 2,750 bilateral investment treaties and almost every one of them has an arbitration provision. Investment arbitration is now a prominent feature of the arbitration landscape.

Just as BITs have proliferated in recent years, so too have free trade agreements. There are approximately 380 free trade agreements now in existence, and yet the question of dispute settlement in the FTA context has rarely featured in the discussion. Sure, there have been NAFTA Chapter 20 cases, and the occasional ad hoc dispute–such as the Canadian-U.S. Softwood Lumber dispute. But international trade arbitration pursuant to FTAs is still in its infancy.

The recent EU-South Korea FTA signed last month may signal a new era of FTA arbitration. The dispute settlement chapter of this FTA combines features of both investment arbitration and the WTO DSU.

The procedures are similar to investment arbitration. There are provisions for the request for arbitration, establishment of an arbitral panel, rules on arbitrator conduct, rules governing proceedings, evidence gathering and hearings, time limits for the award, etc. There are a few unique provisions, such as drawing arbitrators by lot from a roster of fifteen, and adopting the seat of arbitration as either Seoul or Brussels, depending on which State is the complaining Party. But in most respects the procedures are familiar to other forms of arbitration involving States.

When it comes to remedies, however, the FTA arbitration rules are similar to the WTO. A non-complying State may offer compensation for a violation, or failing that, be subject to retaliatory countermeasures (i.e., increased tariffs). Those tariff increases may not exceed the level applied to other WTO members, but will result in the suspension of duty-free benefits under the FTA. Similar to the WTO, disputes as to compliance measures or deadlines are subject to further arbitration. The traditional recognition and enforcement questions under the New York Convention are irrelevant in this context.

Over 50% of all trade in goods occurs on a preferential basis. Like BITs, FTAs will continue to proliferate. Sophisticated dispute resolution mechanisms in FTAs are long overdue. The future portends a new world of international trade arbitration, and a growing international trade arbitration bar.

Google Maps to Blame for Nicaragua’s Invasion of Costa Rica?

by Roger Alford

“By no means should Google Maps be used as a reference to decide military actions between two countries.” That’s the official response from Google to news reports that Nicaragua invaded Costa Rica based on Google’s improper drawing of the border. Details from the Tico Times. And no, the link is not to the Onion.

The more serious question is what policy should Google have for disputed borders? The Nicaragua Foreign Minister said that “the contentious map is ‘absolutely correct’ and that Google shouldn’t make ‘any modifications’ to the border coordinates.” Google explains how it got the border wrong here. Basically they relied on an inaccurate map issued by Arbitrator Grover Cleveland in an 1888 boundary dispute.

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Obama Endorses India to Join Security Council as Permanent Member, and a Note on State Disaggregation and the Global New Class

by Kenneth Anderson

News services are reporting that President Obama, speaking to the Indian Parliament, has endorsed India receiving a permanent seat on the UN Security Council.  The AP story adds that this was the biggest applause line in the speech, fully consonant with the rise of Indian nationalism within India, and its rapidly increasing sense of importance in the broader world.  What of this nationalism?  And the rise of national pride of place among the newly rising great powers, not just India?

I continue to find mystifying the Western academic international law world’s infatuation with the ideals of the dimishining importance of states and membership in states.  Particularly when that mostly seems to refer not to a universal aspiration, but only to the inability of the leading Western-states-in-decline to persuade themselves to exercise the coherence that makes states socially useful – and that largely through the cultural and class predilections of the political classes of those societies.  When are we going to see proper analytic attention to the Globalized New Class as a phenomenon?  In any event, the rising new powers understand that states are about coherence, and that the constant struggle of most states, most of the time, is to remain coherent and prevent “disaggregation” of the state into internal groups of power and “public choice” struggles for primacy and the resources of politics to economic ends.

Disaggregation is attractive to many Western intellectuals, I’d suggest, however, because our species-being, so to speak, has gradually come to be purely contractual free agency.  We gave up on any kind of “fiduciary professional” model of the intellectual when we discovered that we could leverage our knowledge skills, at least until China and India caught up, across a needy global economy.  It required freeing ourselves from the strictures of local communities; but the opportunities for globally marketizing our professional expertise being very large, we have moved a long, long way from RH Tawney’s post-war British model of the professional as community leader through expertise.

That’s not how we academics pronounce the disaggregation of the state.  Our favored trope is to declare disaggregation of the state as an enabler of individual freedom.  We mean by that, of course, particularly market freedom of the academic free agency market (best of both worlds: free agent competition as academics and tenure).  The coherence of states is seen by us as an inhibition to individual freedom in some cosmopolitan, fully-marketized, free-agent status for every individual in the world.   Continue Reading…

Kevin’s Traveling Roadshow

by Kevin Jon Heller

I am heading to Europe on Wednesday for a couple of weeks.  I will be in Salzburg from November 13-19, participating in an amazing project on the intersection of international and Islamic law that is sponsored by the International Bar Association and the Salzburg Global Seminar.  (The definition of terror: my chapter for the resulting book, on sentencing and rights of defendants, will be formally responded to by Lord Peter Goldsmith, the former Attorney General of the UK, and Shirin Ebadi, the Iranian Nobel Peace Prize winner!)  I will be in Nuremberg from November 19-21 for the 65th anniversary of the Nuremberg Trial.  I’ll then be in Cologne from November 21-23 to give a talk on the Karadzic trial at the University of Cologne.  Finally, I’ll be in Amsterdam from November 23-26 to give a talk at Leiden University, most likely on crimes against humanity at the NMTs.  As always, Opinio Juris readers in those locations should send me an email if they’d like to meet up!

P.S.  I should add that I will be in Las Vegas from November 27-December 12 to visit my mom and give a talk (on December 7) at UNLV.  I would be happy to meet up there, as well — as long as it’s not at a casino.

U.S. Takes Its Lumps at the U.N. Human Rights Council: Is it Worth It?

by Julian Ku

I understand the rationale behind the Obama Administration’s policy of engagement with the U.N. Human Rights Council.  So I understand why U.S. delegates subjected themselves to sharp and sometimes ridiculous criticism by other states during a session yesterday on United States human rights practices.

A delegation of top officials, led by Assistant Secretary of State Esther Brimmer, gave diplomats at the U.N. Human Rights Council a detailed account of U.S. human rights shortcomings and the Obama administration’s efforts to redress them. It marked the first time the United States has subjected its rights record to examination before the Geneva-based council, as part of a procedure that requires all states to allow their counterparts to grade their conduct.

Several delegations camped out overnight to be first in line to criticize Washington, with the initial few speakers including CubaIran and Venezuela.

The United States’ most vociferous critics – Cuba, Iran, Nicaragua, North Korea and Venezuela – opened the session with a string of highly critical accounts of U.S. policies, denouncing detention policies from Abu Ghraib to Guantanamo Bay and characterizing the embargo on Cuba as an act of genocide. Cuba and Nicaragua also called for the release of five Cuban intelligence officials held by U.S. authorities on espionage charges and for the prosecution of Luis Posada Carriles, the alleged mastermind of the 1976 terrorist bombing of a Cuban airliner.

“The United States of America, since its very origin, has used force indiscriminately as the central pillar of its policy of conquest and expansionism, causing death and destruction,” said Nicaragua’s envoy, Carlos Robelo Raffone. “We would like to forget the past . . . but unfortunately, the United States of America, which pretends to be the guardian of human rights in the world, questioning other countries, has been and continues to be the one which most systematically violates human rights.”

All of this is a bit hard to swallow (do we really need to hear from North Korea on human rights? And would human rights really be better off if, say Nicaragua or Venezuela was guarding it?). But it might be worth swallowing hypocrisy if, say, down the road, U.S. criticisms of other countries had some impact or influence.

But I think it is fair to say that the UN Human Rights Council is almost completely a political show without any serious policy impact or legal significance.  There is no evidence that states change their behavior due to the HRC’s criticism.  Does anyone think Cuba will suddenly release political prisoners due to HRC criticism?  Moreover, as far as I can tell, the HRC sessions use human rights law as political slogans, but nothing more.  No one attempts to seriously apply legal principles to measure human rights behavior.  If they did, they wouldn’t be able to claim with a straight face that the embargo on Cuba is “genocide.”

The HRC has no legally binding authority (or much moral authority) anyway.  Mostly, it just serves to further damage the U.N.’s image in the United States, a dangerous thing to do now that the Republican House is back in charge of U.N. funding.

Annual Duke-Harvard Foreign Relations Law Workshop

by Duncan Hollis

Duke Law is hosting the annual Duke-Harvard Foreign Relations Law Workshop tomorrow, and, as usual offers a stellar line-up.  This year’s topic is The Political Economy of Foreign Relations Law.  For those interested in knowing more, the line-up is after the jump.

Suing to Block Oklahoma’s Constitutional Amendment

by Duncan Hollis

A few days ago, Roger (and others) discussed the possibility of legal challenges to Oklahoma’s constitutional amendment prohibiting its judges from considering international and Sharia law.  I have my own questions about the amendment under the Supremacy Clause beyond the more obvious arguments that Oklahoma Courts must apply treaties that fall within Article VI’s ambit (putting aside for now debates over whether non-self-execution limits which treaties fall within Article VI).  For example, does the Amendment preclude state judges from looking to foreign law to interpret the meaning to give to a U.S. treaty obligation?  Chief Justice Roberts and Justices Kennedy, Scalia, Ginsberg, Alito and Sotomayor all endorsed doing so last term. Or, what about looking to the law of treaties to discern what constitutes a U.S. treaty commitment or how to interpret it?  If they don’t look to such international and foreign laws, on what grounds would Oklahoma judges interpret or apply a U.S. treaty?

These questions, however, do not appear widespread among those troubled by the amendment.  For now, the focus appears to be on its singling out Sharia law specifically.  And, as anticipated, that move has generated a law suit:

An Oklahoma Muslim filed a federal lawsuit on Thursday to block a state constitutional amendment overwhelmingly approved by voters that would prohibit state courts from considering international law or Islamic law when deciding cases.

The measure, which got 70 percent of the vote in Tuesday’s election, was one of several on Oklahoma’s ballot that critics said pandered to conservatives and would move the state further to the right.

The lawsuit, filed in U.S. District Court in Oklahoma City, seeks a temporary re[s]training order and injunction to block the election results from being certified by the state Election Board on Nov. 9. Among other things, the lawsuit alleges the ballot measure transforms Oklahoma’s Constitution into “an enduring condemnation” of Islam by singling it out for special restrictions by barring Islamic law, also known as Sharia law.

“We have a handful of politicians who have pushed an amendment onto our state ballot and then conducted a well-planned and well-funded campaign of misinformation and fear,” said Muneer Awad, who filed the suit and is executive director of the Council on American-Islamic Relations in Oklahoma. “We have certain unalienable rights, and those rights cannot be taken away from me by a political campaign.” About 20,000 and 30,000 Muslims live in Oklahoma, Awad estimated.

Legal experts have also questioned the measure.

Joseph Thai, a professor at the University of Oklahoma’s College of Law, said the ballot measure is “an answer in search of a problem.” He said he knows of no other state that has approved similar measures.

“There is no plausible danger of international law or Sharia law overtaking the legal system,” Thai said in an e-mail to The Associated Press. He said courts only consider international law when deciding issues involving a federal treaty, a business contract or a will that incorporates international law.

Thai said the ballot measure “raises thorny church-state problems as well” and could even affect a state judge’s ability to consider the Ten Commandments.

Jess Braven over at the Wall St. Journal Blog has his own story on the suit as well.  It seems then that we’re only at the start of a national conversation on these issues.

Bush Admits Authorizing Waterboarding

by Kevin Jon Heller

A couple of weeks ago, New Stream Dream accused me of never believing individuals who — like Khadr and Lynne Stewart — confess to committing crimes.  Well, I believe this confession:

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

Sadly, because we are supposed to look forward and not backward — unlike other states, as Glenn Greenwald constantly reminds us — Bush will never be held accountable for admitting that he committed war crimes and crimes against humanity.  But he certainly should be.

David Glazier on a New Piracy Decision, U.S. v. Hasan

by Kevin Jon Heller

The following is a guest post by David Glazier, an Associate Professor at Loyola Law School in Los Angeles.

As Opinio Juris readers likely recall, there are two ongoing federal prosecutions in Norfolk, Virginia before different judges of Somali pirates who made the boneheaded mistakes of attempting attacks on two separate U.S. Navy warships. (Hey, it was dark!)  In the first case, U.S. v. Said, (previously discussed on this blog by Julian, Kevin, and I in posts here, here, here, and here) Judge Raymond A. Jackson threw out the piracy charge against a group that tried to attack the USS Ashland, an amphibious landing ship, ruling that the statutory reference, 18 U.S.C. § 1651, “Piracy Under the Law of Nations,” must be limited to the definition understood at the time the law was enacted (1819!) and that piracy only constituted robbery on the high seas per the 1820 Supreme Court decision United States v. Smith.  Since the attack was unsuccessful, no robbery took place and the judge thus dismissed the piracy charge although allowing other related charges to go forward.  That result is now on interlocutory appeal to the Fourth Circuit by the prosecution.

In the second case, U.S. v. Hasan, Judge Mark S. Davis reached the opposite conclusion in a rather comprehensive 98 page opinion just handed down, holding that the federal piracy statute’s reference to piracy as defined by the law of nations incorporates the current definition found in the 1958 High Seas Treaty and 1982 UN Convention on the Law of the Sea, which is broad enough to include unsuccessful attacks within its ambit.  He thus ruled that the attempted attack on the frigate USS Nicholas can be prosecuted as piracy.  Judge Davis cited Sosa v. Alvarez-Machain as support for his view that the customary international law to be applied by U.S. courts can evolve over time, and makes extensive use of the work of past Opinio Juris guest commentator Eugene Kontorovich. This decision is not subject to appellate review until after the trial, but my sense is that the district court opinion is intended to aid the Fourth Circuit in reaching what I think is the correct result in Said — that the treaty language is controlling.  Since Somalia is a party to UNCLOS (as are 160 other nations), it hardly seems unfair to consider the pirates to have fair notice of its provisions, whereas it seems more of a stretch to consider them on notice of an 1820 decision of a foreign supreme court.

Judge Davis’s opinion in Hasan is available here.

One Bright Spot in the Election

by Kevin Jon Heller

At least the war criminal lost:

The basic facts are undisputed: on 15 April 2004 Ilario Pantano, then a second lieutenant with the US marines, stopped and detained two Iraqi men in a car near Falluja. The Iraqis were unarmed and the car found to be empty of weapons.

Pantano ordered the two men to search the car for a second time and then, with no other US soldiers in view, unloaded a magazine of his M16A4 automatic rifle into them, before reloading and blasting a second magazine at them – some 60 rounds in total.

Over the corpses, he left a placard inscribed with the marine motto: “No better friend, No worse enemy.”

[snip]

A few months after he killed the two unarmed Iraqis, a member of his unit reported him to senior officers and he was charged with premeditated murder. At a pre-trial military hearing, prosecution witnesses testified that the detainees, Hamaady Kareem and Tahah Hanjil, were unthreatening and that their bodies were found in a kneeling position having apparently been shot in the back.

Sadly — though certainly not surprisingly, in this age of right-wing extremism — the fact that Pantano is a murderer did not stop 97,591 North Carolinians from voting for him.

International Law Banned in Oklahoma State Courts

by Roger Alford

Yesterday voters in Oklahoma voted overwhelmingly (70% in favor to 30% against) to ban the use of international law and Sharia law in state courts. It appears that the referendum will be headed to the courts for review, for as my colleague Michael Helfand has noted, the ban on Sharia law may well be unconstitutional under the First Amendment.

The full text of the referendum reads as follows:

“The Courts . . . when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law.

How much of an impact will this referendum have? Hard to say. I can think of six scenarios. First, state courts will be prohibited from relying on international or Sharia law as a tool to develop the common law or to interpret Oklahoma statutes or the Oklahoma or federal constitutions. Second, governing law clauses in contracts that rely on international law or Sharia law will not be enforceable. Third, the provision prohibiting state courts from addressing “legal precepts of other nations or cultures” may preclude courts from enforcing foreign choice of law provisions. Fourth, the enforcement of foreign judgments that rely on foreign law as the rule of decision may also run afoul of the prohibition on looking to the “legal precepts of other nations or cultures.” Fifth, the enforcement of foreign arbitral awards that rely on international, Sharia, or foreign law may also now be suspect in Oklahoma state courts, although such a state law provision would be preempted under the FAA and the New York Convention, which must be applied in state courts under Southland. Sixth, as Julian Ku has noted earlier, foreign investors will now be wary of consenting to jurisdiction in Oklahoma state courts.

The backlash against Lawrence v. Texas, Roper v. Simmons, and Graham v. Florida continues. Or perhaps this referendum is more about animus against Islam and international and foreign law are collateral damage.

The U.S. Midterm Elections and International Law

by Julian Ku

What does the change of power in the U.S. Congress (at least in the House) mean for U.S. attitudes toward international law and foreign policy?  Not much, I think, since I think foreign policy is one of the few areas where we can imagine the new more conservative Republicans and President Obama working together better than he did with progressive Democrats.  But here is a quick guess on the impact of this election on upcoming issues:

1) Climate Change Treaty Negotiations – Since the likely swing vote in the Senate is a conservative Democrat from West Virginia who literally shot the cap-and-trade bill in a TV ad during his campaign, I wouldn’t count on any movement at all on this front over the next two years.

2) Guantanamo – Let’s just say it is going to stay open until at least the end of President Obama’s first term, and maybe well into his second term (if there is a second term).

3) Civilian trials in U.S. of Guantanamo detainees – This is a mixed bag, but Congress can have a big influence on this issue through their oversight and funding power. I imagine military commission trials are going to continue, and there will be fewer civilian trials.

4) Targeted killing – This is also not entirely clear, but I somehow doubt the new House majority cares one way or the other. I bet they go on and continue escalating, especially in places like Yemen and Somalia.

5) Law of the Sea Treaty – Not gonna happen. I think we may have to wait until the second term of the Palin Administration for this one.

6) New Free Trade Agreements, or passage of Colombia and Korea Free Trade Agreements –  This could happen, and is actually more likely to happen under a Republican Congress.

Anyone out there have their own thoughts on the likely impact? Disagreements?

Dave Glazier on Khadr’s Sentence

by Kevin Jon Heller

I have bumped Dave’s comment to the main page, because it’s worth a read — and not just because it supports my claim that Khadr will serve no more than two years in a Canadian prison…

I have now heard back from the Canadian attorney quoted by the New York Times and after working through all the applicable statutes in detail, we conclude that the basic rules applicable to Khadr are that he should be eligible for parole after serving 1/3 of his total sentence (32 months) or 20 months after repatriation, and even if not paroled, should be eligible for “statutory release” after 2/3 of his sentence (64 months) or 52 months after repatriation.

The only Canadian rule providing for credit for total time in custody is only applicable to life sentences and thus does not apply to Khadr.

There is one remote possibility — if Khadr’s conviction for “murder in violation of the law of war” was held to be the direct equivalent of Canada’s “first degree murder,” then the fact that Khadr only received an 8 year term for this offence would be treated as a “youth sentence” under Canadian law, and youthful offenders can be awarded an early release by a juvenile court on the recommendation of the appropriate provincial official.  But a killing in the flow of a battle seems extremely unlikely to qualify as first degree murder, and Canadian law provides that a sentence in excess of seven years for the equivalent of second degree murder is to be treated as an adult sentence, placing Khadr outside the reach of Canadian juvenile authorities.  The Canadian professor speculates that the government may thus have recommended the eight year sentence specifically to ensure this outcome (and it seems a bit of an odd term otherwise).

He also told me that the generic experience with parole in Canada is that most offenders receive parole after serving about 1/2 of their sentence, but his opinion was (good news for Kevin’s prediction) that Khadr would likely be promptly paroled.

Several commentors talk about the possibility of Canadian Supreme Court intervention.  I would just note that the plea agreement, like that of Hicks which was previously made public, specificly proscribes any direct or collateral challenge to the conviction, sentence, or treatment in U.S. custody, and the Canadian law on inmate transfers requires that the foreign judgment be final, barring any challenge after repatriation.  Granted Canadian judges might find some pretense to review this case given its unique nature and the particular abuses Khadr was subject to.  But the letter of the law, and concerns that doing so might hamper the ability of Canada to get citizens back from other repressive countries, both argue against doing so, particularly if it is anticipated that the National Parole Board will take favorable action on his first application.  (I should be clear that this final paragraph reflects only my personal opinion and has not been discussed with anyone else).

Extraterritorial Regulation of Human Rights and the Environment Under the WTO General Exceptions

by Roger Alford

One of the most significant questions under GATT Article XX is whether States can violate WTO rules in order to protect against foreign harms. It is an issue that has plagued the GATT/WTO for almost twenty years, most famously in the Tuna-Dolphin and US–Shrimp cases. If, for example, Article XX(b) allows departures from WTO rules “to protect human, animal, or plant life or health,” does this mean that States can take action to protect human or animal health or life at home and abroad? It is a critical question for countries wishing to limit the importation of goods or services that are produced in violation of core human rights or environmental treaties.

In US–Shrimp, the WTO Appellate Body avoided directly addressing whether there is an implied jurisdictional limitation in Article XX, concluding that where endangered sea turtles migrate through the waters of several countries, there was a “sufficient nexus” between the migratory and endangered sea populations and the United States for purposes of Article XX. (para. 133).

What I find amazing in every discussion I have seen about Article XX is the failure to read the general exceptions in their context. Under VCLT art. 31(2), whether one can regulate foreign harms to human health or safety under Article XX(b) or exhaustible natural resources under Article XX(g) must be read in the context of the other exceptions.

Those other exceptions leave no doubt that they allow WTO members to regulate foreign harms. Article XX(e) is an exception “relating to the products of prison labour,” an exception added by the United States to allow import restrictions on products produced by involuntary servitude. Article XX(j) relates to measures taken for products in “general or local short supply” and references the equal entitlement to the international supply of products in short supply. Article XXI allows security regulations of fissionable material, a clear reference to trade restrictions preventing other countries from using such material to build nuclear weapons. It also allows Member State action pursuant to obligations under the U.N. Charter, a reference to, inter alia, Security Council resolutions imposing trade embargoes on countries that threaten international peace and security.

If these exceptions allow Member States to regulate foreign harms, why should the other exceptions not be interpreted to authorize a Member State to regulate foreign harms? Moreover, VCLT 31(3) requires treaty provisions to be interpreted in light of subsequent agreements between the parties and relevant rules of international law applicable between the parties. If treaties or international law principles of prescriptive jurisdiction allow Member States to regulate extraterritorial harms, then this too should inform the interpretation of the Article XX exceptions.

On this theory, Member States should be able to take measures under Article XX(a), (b), or (g) to promote human rights or environmental concerns arising in other countries, even if those harms are not manifest in their own jurisdiction.

It’s Over: Khadr Gets “Eight Years”

by Kevin Jon Heller

This according to AP:

The sentence was handed down Sunday under a plea bargain in which the young Canadian admitted to five war crimes charges, including killing a U.S. soldier in Afghanistan. Under the deal, the judge was limited to the eight-year sentence and had to ignore the recommendation of a military jury that Khadr serve 40 years.

The case attracted intense scrutiny and criticism because Khadr was 15 when he was captured after suffering serious wounds during a four-hour battle at an al-Qaida compound in Afghanistan in 2002.

Appearing relaxed, Khadr stared straight ahead as the judge read a sentence that calls for him to stay at the Guantanmo prison another year before he can ask Canada’s government to allow him to return to his homeland to serve out his sentence or seek early release on parole. He doesn’t get credit for the eight years he already spent at Guantanamo.

The Canadian government gave no indication how it might react. Melissa Lantsman, a spokeswoman for Canada’s foreign affairs minister, said only that a decision will be made when Khadr formally applies.

Anyone want to play over/under?  I say that Khadr serves no more than two years in a Canadian prison — just long enough for America to lose interest in him.