Archive for
February, 2012

Oxford Accepting Applications for Chichele Professorship of Public International Law

by Chris Borgen

Here’s something you don’t see every day: Oxford University is seeking applicants for the Chichele Professorship of Public International Law. Oxford’s announcement begins as follows:

The Oxford Faculty of Law is a major centre for the study of international law. We aim to build Oxford’s role in the field, as international law becomes increasingly important and complex, and more closely involved with particular areas of domestic and transnational law.

The Chichele Professorship is at the centre of the University’s strength in international law. The Professorship, which is a position of senior leadership in the discipline, in Oxford and worldwide,will fall vacant upon the retirement of Professor Vaughan Lowe QC in September 2012.

Here’s the full list of previous holders of the chair (up to Vaughan Lowe, the current Chichele Professor):

Alberico Gentili, Regius Professor, 1587
Mountague Bernard, 1859- 1870
Thomas E. Holland, 1874-1910
Sir Henry Erle Richards, 1911-1922
James Leslie Brierly, 1922-1947
Sir Humphrey Waldock, 1947
D.P. O’Connell, 1972-1979
Ian Brownlie QC , 1980-1999

Gentili, Brierly, Waldock, Brownlie, Lowe… or, to sum up, many consider this the most storied chair in international law in the world.  Vaughan Lowe gave a succinct history of the professorship in his inaugural lecture. The application information is in this pdf. Good luck.

Hat tip to Don Anton for pointing this out. (and if you don’t read Don’s Weekly Digest of International Law, you should!)

How to Win the Kiobel Public Relations War

by Julian Ku

The Kiobel oral arguments have spawned lots of media coverage and commentary. I think this matters more than usual because the way this case plays out in the court of public opinion is going to have an effect on the justices.  For instance, Dahlia Lithwick at Slate concludes that..

The skepticism of the court’s conservative bloc notwithstanding, this is a case that may not be resolved on the usual 5-4 party lines. That’s because a decision giving Shell and the many folks who filed amicus briefs supporting Shell (Coca-Cola, Chevron, BP, KBR … you get the idea) what appears to be the right to commit human rights abuses abroad is about the only way they could make the corporate monster they built in Citizens United look any worse.

She is (for once) right about this.  I think the law is pretty good for the Kiobel defendants, but the optics are horrible.  For instance, this article on the Huffington Post hits all the typical notes:

How anyone could argue with a straight face that they shouldn’t be held responsible for such abhorrent behavior is almost beyond comprehension. Yet that’s precisely what Shell and their corporate supporters have been insisting in their legal briefs and what they will argue to the court today.

Shell has good legal arguments, but as I have suggested, these legal arguments are deeply unattractive to the general public. Their PR campaign in response should sound something like this:

1) Corporations can still be held accountable for egregious human rights violations under the domestic law of the state where they committed the acts or in their home state.  The appellate courts in Doe v. ExxonMobil, for instance, also recognized state tort law claims against Exxon for acts they committed overseas.  Chevron was recently subjected to an $18 billion judgment in Ecuador courts for alleged atrocities they committed there.  So the slogans about “corporate immunity” or “impunity” are misleading at best.

2) The only question is whether plaintiffs can ALSO use customary international law norms to bring foreign corporations into US courts for actions they allegedly took in foreign countries against foreign citizens.  That is the only type of case that the ATS allows, but which probably would not be allowed under state or federal law.  Hence, it is an extraordinary remedy the plaintiffs are asking for, and it is worth noting, that they are asking for this extraordinary remedy based on very sketchy reading of a very old statute that almost certainly was not designed to allow such suits.

3) The analogy to Citizens United is a catchy slogan, but is also misguided. First of all, Citizens United is a constitutional law case, and this is a question of international law.  In any event, the mere fact that entities have rights does not mean that they always have duties under the same type of law. Sure, corporations have rights under the U.S. Constitution, but that doesn’t mean corporations have duties under constitutional law as well. As US law has long held, constitutional obligations limit only the state, and not private parties. Why isn’t anyone grumbling about this doctrine?  Rights and duties don’t always go together. Private natural persons sometimes have duties under international law, but oftentimes they don’t.  This is not driven by the fact that private natural persons sometimes have rights.

Those Gutsy Filipinos: Philippines Invites Investors to Explore for Oil in South China Sea

by Julian Ku

That South China Sea dispute just won’t go away. Not as long as there’s still oil and gas down there

A new dispute is building between China and the Philippines over oil exploration in the South China Sea, with neither side showing any sign of backing down.The dispute began earlier this week, when Philippines Energy Minister Jose Almendras announced that foreign investors will be invited to explore for oil and gas on two undersea tracts northwest of Palawan Island, in what Manila has begun calling the West Philippine Sea.

China’s foreign ministry spokesman Hong Lei denounced the plan at a briefing in Beijing Tuesday, saying the tracts actually belong to China.

“Any country’s government or company engaging in the extraction and exploration of oil or gas in China’s sea territories, without permission from the Chinese government, is illegal.”

Hong said any such exploration without Chinese permission is illegal.

Manila, however, appears determined to go ahead. The Associated Press quotes Philippines Foreign Secretary Albert del Rosario on Wednesday reiterating his country’s decision to approve the exploration. The minister maintained that the areas in question are “well within (the Philippines’) territory” based on the United Nations Convention on the Law of the Sea.

The “Crucial” Choice of Law Question in Kiobel

by Julian Ku

Here is the second round of my exchange with Professor David Weissbrodt over at Pointoflaw. I begin by citing the following exchange during Kiobel’s oral argument yesterday.  

SULLIVAN: …The crucial question that is at the threshold is which law determines whether corporations are liable.
 
JUSTICE BREYER: I think you are right on that point….

– From the Kiobel v. Royal Dutch Shell, Oral Argument Transcript, February 28, 2012 at 32.

This exchange between Kathleen Sullivan, the attorney for respondents Royal Dutch Shell in Kiobel, and Justice Breyer highlights the importance of the “choice of law” question to this case. The “choice of law” question is whether international law or domestic law governs the question of corporate liability.

The importance of the “choice of law” question might seem surprising. After all one might expect that a leading international human rights lawyer like Kiobel’s attorney, Paul Hoffman, and a leading scholar of international human rights law like Professor David Weissbrodt, would invoke international law to justify holding corporations accountable for humanitarian atrocities. Yet both (along with the Obama Justice Department) are insisting the question of corporate liability is a matter for domestic and not international law.

The reasons for this insistence, as I argued in my prior post, is that the international law precedents for holding corporations liable for violations of customary international law are embarrassingly thin. They are so thin that the Petitioners barely mentioned them, and that the Obama Justice Department didn’t even invoke them. They are so thin that Professor Weissbrodt, who spearheaded the important U.N. effort to develop norms governing the behavior of transnational corporations, does not make this argument either.

Justice Breyer’s comment therefore suggests that if international law governs the question of corporate liability, the plaintiffs will lose. And that the only way plaintiffs will prevail is if they convince a majority of the Court (meaning Justice Kennedy), that the question of corporate liability is really a question of remedies, and that is a matter left to the domestic common law of the U.S.

On this “crucial” point, I still find the Petitioner’s argument lacking.

Read the rest of my post here and Prof. Weissbrodt’s post here.

Special JICJ Issue on the Crime of Aggression — And It’s Free!

by Kevin Jon Heller

It is my pleasure to announce that the Journal of International Criminal Justice, the leading journal in the field, has just published a special issue on the crime of aggression to commemorate its 10th anniversary.  The special issue, which is edited by Claus Kreß and Philippa Webb, contains a variety of fascinating articles on aggression from a number of leading scholars.  I am delighted to be one of the contributors (though everyone hates my article) — but I’m even more delighted that the special issue includes an article on aggression and quasi-states written by one of my most brilliant LLB students, Alexander Wills.  It’s an exceptional article and richly deserves its place among the others.

Here is a list of the articles in the special issue:

Introduction, Claus Kreß and Philippa Webb

Delegitimizing Aggression: First Steps and False Starts in the Wake of the First World War, Kirsten Sellars

‘In general a principle of justice’: The Debate on the ‘Crime Against Peace’ in the Wake of Nuremberg, Thomas Weigend

Justified Uses of Force and the Crime of Aggression, Erin Creegan

The Crime of Aggression and the Resort to Force against Entities in Statu Nascendi , Alexander Wills

Judicial Independence at Risk: Critical Issues Raised by Selected Human Rights Organizations regarding the Crime of Aggression, Leonie von Braun and Annelen Micus

Par in Parem Imperium Non Habet: The Crime of Aggression and the Complementarity Principle, Beth van Schaack

Aggression and Legality: Custom in Kampala, Marko Milanovic

What is the Crime of Aggression? Comparing the Jus ad Bellum and the ICC Statute, Mary Ellen O’Connell and Mirakmal Niyazmatov

Amending the Amendment Provisions of the Rome Statute: The Kampala Compromise on the Crime of Aggression and the Law of Treaties, Andreas Zimmermann

The Uncertain Legal Status of the Aggression Understandings, Kevin Jon Heller

Individual Civil Responsibility for the Crime of Aggression, Friedrich Rosenfeld

The ICC and the Crime of Aggression: A Dream that Came True and the Reality Ahead, Mauro Politi

You can find the articles, which are all free to download, at the Oxford website here.

Parsing the Oral Arguments in Kiobel and Mohamad

by Chimene Keitner

[Chimène Keitner is an Associate Professor of Law at the University of California, Hastings College of the Law.]

The oral arguments in Kiobel and Mohamed will doubtless generate a new round of commentary on these cases. A “quick response” panel is planned for Thursday, followed by a Georgetown Law symposium on March 27 and an ASIL annual meeting panel on March 31.

Since I have written on the choice of law question under the ATS, I predictably agree with Kathleen Sullivan’s statement that “The crucial question that is at the threshold is which law determines whether corporations are liable.” (Tr. at 32.) However, I disagree with her argument that “corporate liability” is a “substantive norm,” and that the question of whether a natural person’s conduct can be attributed to a corporation for the purpose of imposing civil liability is necessarily governed by the same source of law as the standard for aiding and abetting, or the state action requirement addressed in footnote 20 of the Sosa opinion. Sullivan argued that all three of these questions (corporate liability, aiding and abetting, and state action) are “substantive questions answered by international law.” (Tr. at 37.) Elsewhere in the argument, she suggested that the proper source of law for theories of attribution, at least in a common law action, would be “the place of misconduct or the place where the corporation is headquartered.” (Tr. at 39.) Punitive damages, by contrast, she would categorize as a remedial matter properly governed by U.S. domestic law. (Tr. at 39.) Paul Hoffman argued on behalf of Petitioners that domestic law applies to the corporate liability question because “international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law” (Tr. at 6), and that in any event the substantive international legal norms at issue in this case do apply to corporations, as argued more fully by Opinio Juris contributor Oona Hathaway in an amicus brief.

In general, the Justices appeared to endorse a dichotomy between “substantive” rules and rules relating to “enforcement”—a dichotomy advocated by Ed Kneedler in his argument on behalf of the U.S. Government. Justice Kagan articulated this as the dichotomy between the law governing “who has an obligation” vs. “who can be sued.” (Tr. at 37-38.) As I suggested in my 2008 article, following Bill Casto, and in a shorter 2011 symposium piece,  it seems to me that the most coherent approach to the choice of law question distinguishes between “conduct-regulating” and “non-conduct-regulating” rules. Under the ATS, conduct-regulating norms are supplied by international law. Since entities inevitably act through natural persons, these norms govern the conduct of natural persons, but that does not mean that other organizations or entities cannot also bear the legal consequences of natural persons’ conduct in a variety of circumstances. (The reverse is also true—for example, foreign officials generally do not bear the legal consequences of commercial transactions that they enter into on behalf of the foreign state.) Paul Hoffman indicated some sympathy for this view in his final response to Justice Scalia’s question about what source of law he would apply to the standard for aiding and abetting liability (an issue not presented for review in this case), when he responded that “I think that—that aiding and abetting could be viewed as a conduct regulating norm, that it actually applies to the things that can be done to violate the norm. And therefore, international law would apply to that.” (Tr. at 56.) However, the same answer does not necessarily hold true for the corporate liability question presented in Kiobel, because rules of attribution are not conduct-regulating.

As a general matter, I abstain from making predictions in cases. However, in a slight break from my own tradition, I will hazard a guess that there will be at least one opinion supporting corporate liability (on the principle that corporations are routinely held liable for the torts of their agents), one opinion opposing corporate liability and also challenging the ATS’s grant of jurisdiction over extraterritorial conduct and over suits between aliens, and one opinion (perhaps a concurrence) opining on how ATS suits fit (or not) into the evolving global landscape of domestic adjudication of international law violations (whether these are denominated violations of international law, common law, or domestic statutes that codify international law norms).

Kiobel and Mohamad Oral Argument Transcripts

by Kenneth Anderson

… from this morning’s hearing:  Kiobel and Mohamad.  I would be curious as to readers’ prognostications of how the Justices will rule based on the oral arguments today. (Thanks for comments, interested in more.  For example, where did this extraterritoriality question suddenly materialize from and does it portend something different from what was originally thought?  You can also see John Bellinger’s take on the argument at Lawfare.)

Update: Reading the transcripts more carefully, as well as Chimene Keitner’s thoughtful post above, I recall that in some blog post somewhere a few year ago – my old blog, OJ, Volokh, I don’t even remember – I said that the problem of corporate liability and that ATS was that in order to get the international law predicate going, “you needed not just a what but a who.”  I assumed that this would be an issue in the oral argument; like lots of other folks, I didn’t anticipate that extraterritoriality would figure in any significant way.

Comment on Kiobel and Mohamad

by Juan E. Mendez

[Juan E. Méndez is the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, and a Professor at American University Washington College of Law.]

Torture is illegal and immoral, and like slavery, we should have abolished it by now. And yet its use continues to haunt our societies. In fact, the issue of torture — and whether corporations are immune from liability for committing torture — will come before the U.S. Supreme Court on Feb. 28.

In Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority and Palestine Liberation Organization, the Supreme Court will decide whether or not torture victims can sue corporations and other non-governmental entities, for their injuries. The two federal statutes at issue—the Torture Victim Protection Act (TVPA) and the Alien Tort Statute (ATS)—have been used for more than a decade to hold corporations liable for torture, genocide, crimes against humanity, and war crimes, even when those violations occurred outside of the United States.

While Kiobel and Mohamad do not represent the first time that torture victims have sued corporations or other non-state actors for committing the most atrocious of abuses, this is the first time that the push back from corporations has reached the Supreme Court. On the one hand, corporations declare, in cases like Citizens United v. FEC, that they have rights. On the other hand, corporations refuse to take responsibility for committing or aiding in torture or genocide. If “corporations are persons too,” we ought to be able to hold them accountable for the most serious crimes.

Kiobel is a modern-day David and Goliath story. The Kiobel plaintiffs, Nigerian political activists who opposed Shell’s oil exploration in the Niger Delta in the mid-1990s, allege that they were subjected to torture, extrajudicial killings and crimes against humanity by the corporate-funded Nigerian military forces. On the other side of the table is one of the largest oil companies in the world, Royal Dutch Petroleum, which reaped a reported $30 billion in profits in 2011. The Supreme Court granted certiorari, after a New York federal court of appeals held that corporations cannot be sued for international law violations. Similarly, the Mohamad court held that corporations and non-physical entities are immune from suit under the TVPA, where a man was allegedly tortured to death by agents of the Palestinian Authority in the West Bank.

The appellate decisions under review, fly in the face of the United States’ commitment to a zero-tolerance approach to torture. As a party to the Convention Against Torture and other treaties, the United States prohibits torture by all U.S. actors and is obliged to afford remedies against all victims. Torture cannot be excused when used against foreigners in secret locations outside the United States. And it cannot be excused when committed or abetted by a corporation anywhere in the world. If torture occurs, the United States is obliged to investigate, prosecute and punish every instance and to offer remedies, reparation and rehabilitation to victims.

What is at stake in Kiobel is the effective eradication of torture. To exempt corporations from liability is akin to providing amnesty for acts that are unquestionably illegal. It tells torturers and their enablers: if you want legal immunity, privatize your operations. It sends the message to corporations around the world: torture your employees and members of the communities in which you operate, because you won’t be held accountable and your bottom line could actually grow.

As the United Nations Special Rapporteur on Torture, I apply a victim-centered approach to my mandate, derived from international standards but also from personal experience. As a young lawyer in Argentina, I represented political prisoners during the “Dirty War” inflicted on my country by the military dictatorship. Because of my work, I was arrested, tortured, and held in administrative detention for more than a year.

I have seen first-hand how torture and other forms of inhuman treatment can thrive in an environment where accountability is lacking. I know that the physical and psychological injury that victims suffer lasts long after the torture ends. And I believe that victims’ reintegration with their families and into their daily lives is not complete until their perpetrators are brought to justice.

As a witness and as a survivor, I feel an acute sense of responsibility to ensure that the perpetrators of torture are punished and that their punishment is held up as a warning to others. I remain convinced that the ATS, enacted in 1789, and its companion statute, the 1992 TVPA, hold great potential for holding perpetrators accountable. I hope that the Supreme Court will uphold the promise of these laws, and fulfill the United States’ commitment to protect human rights, and not allow corporations to get away—literally—with torture.

Kiobel and Unattractive Legal Arguments Against Corporate Liability Under the Alien Tort Statute

by Julian Ku

I am participating this week in a discussion on Kiobel v. Royal Dutch Petroleum, the case on corporate liability under the Alien Tort Statute that will be argued tomorrow at the Supreme Court, at the Manhattan Institute’s Point of Law Blog.  My interlocutor will be Professor David Weissbrodt of the University of Minnesota.  Here is a snippet of my opening salvo:

I will use two recent op-eds on the upcoming case to launch our discussion. Each op-ed reflects how the disputants in Kiobel would like to frame their argument to the Supreme Court and to the public.

In the NYT, Peter Weiss, formerly of the Center for Constitutional Rights, focuses on the importance of the ATS in holding human rights offenders accountable and the general unfairness of excluding corporations from ATS lawsuits.

In the Washington Post, former Bush Administration State Department Legal Advisor John Bellinger, argues that ATS lawsuits are being used to harass corporations into settlements, to interfere with other nation’s domestic affairs, and to embroil the United States in disputes with important foreign allies like the United Kingdom, the Netherlands, and Germany.

I think Bellinger has a very strong argument (I have joined an amicus brief in this case making very similar arguments) and I haven’t seen the petitioners in this case or their amici make a very persuasive response to it. If the Supreme Court rules against the Kiobel plaintiffs, I am betting some version of this argument will be in the majority opinion.

But it is also noteworthy that Bellinger does not respond to Weiss’ claim about the unfairness of excluding corporations. He doesn’t do so because the “corporations are not liable under the ATS,” is the kind of rigidly formalistic argument that rarely succeeds at the Supreme Court and has almost no appeal to the general public. The NYT headline to Weiss’ op-ed, “Should Corporations Have More Leeway to Kill Than People Do?,” neatly captures the difficulty that the Shell defendants face in making this argument.

But just because the argument is unattractive, doesn’t mean it is wrong.

Please check out Point of Law for the rest of my post, and later on this week for Prof. Weissbrodt’s thoughts on the Kiobel question.

Garzon Acquitted in Amnesty Case (Updated)

by Kevin Jon Heller

It won’t save his job, for reasons Julian mentioned a week or so ago, but it’s still good news:

Spain’s top court acquitted renowned judge Baltasar Garzon on Monday of abuse of power by trying to investigate Franco-era atrocities, in a case that exposed deep wounds dating back to the civil war.

Six members of the seven-strong Supreme Court panel came out in favour of acquitting the 56-year-old, clearing a major obstacle in Garzon’s efforts to revive a career which has been stalled by a string of court cases.

Garzon was accused of violating an amnesty by trying to investigate the disappearance of some 114,000 people during the 1936-39 Civil War and General Francisco Franco’s dictatorship that ended in 1975.

Garzon had argued that the atrocities were crimes against humanity and not subject to a 1977 amnesty voted through by parliament.

The court ruled that his decision to launch the probe was “a mistake” since there needed to be a suspect still alive, but that the move did not constitute an abuse of power.

“It is not possible in our procedural system to open an inquiry without the final goal of imposing a penalty,” the court wrote in its ruling.

[snip]

The court had agreed to try Garzon in a suit brought against him by two right-wing groups, despite a call from Spain’s public prosecutor for the case to be dismissed.

The two-week trial heard testimony from 12 descendants of people killed during the Civil War, who say their relatives lie in mass graves.

One witness, 75-year-old Olga Alcega, told the court how her grandfather was shot dead by Franco’s forces in 1936.

“Fear reigned this country. Nobody dared to speak out, it is up to us, the grandchildren of the victims who dare speak,” said Alcega, who attended the hearing dressed in black.

The origins of the case — and the public prosecutor’s stance — tells you all you need to know about its merits.  Whether international law permits amnesties for serious international crimes is a difficult question, but there was no justification whatsoever for prosecuting Garzon for investigating such crimes.

As Santorum Causes Ruckus in Holland, Will Candidates Have to Play It Straight with Foreign Law?

by Peter Spiro

In case you missed it, Rick Santorum asserted earlier this month that it’s open season on old people in the Netherlands – that euthanasia accounts for 10% of all deaths and that the elderly walk around with “Do Not Euthanize” bracelets in the way of medical alerts.

Nothing new on the home front: it’s long been red meat for Republicans to trash foreign laws and practices.  What’s new here is that other countries are paying attention.  It sounds like Santorum’s jibe provoked some outrage in the Netherlands (for those of you who speak Dutch, story here, along with a Dutch parliamentarian’s Facebook protest).  (For those interested in the substance, Jonathan Turley does the math on Santorum’s claims here.)

Obviously Santorum doesn’t care about the Dutch vote (though in a perfect world perhaps he would). But candidates presumably will think twice before provoking diplomatic dust-ups.  Could the world’s scrutiny of US presidential contests force candidates to fact-check when they venture beyond water’s edge?  Perhaps that’s wishful thinking, but it’s another example, at least, of how no politics are merely national any more.

Hathaway, McElroy, and Solow Respond to Comments on International Law at Home

by Oona Hathaway and Sabria McElroy and Sara Aronchick Solow

Our thanks to everyone who has participated in this symposium—John Bellinger, David Sloss, Chimene Keitner, and Steve Vladeck—as well as to Matt Christiansen, who has coordinated the symposium for YJIL. It’s been such a pleasure to see the thoughtful and varied reactions to our Article. Here we take the opportunity to offer a few brief words in response to round out the symposium.

First, we very much appreciate John Bellinger’s generous and kind response. We know that John labored long and hard to bring the Medellin case to a different conclusion. As he rightly points out, the Court’s decision creates both backward-looking and forward-looking problems—backward-looking because there is new uncertainty about the validity of treaties long considered self-executing, and forward-looking because it is difficult to convince treaty partners to include statements of self-execution that speak almost exclusively to our own, largely idiosyncratic, legal debates. He is absolutely right that comprehensive legislation to try to address these problems by allowing private rights of action under a wide range of treaties is highly unlikely. A question for further debate is whether there is a class of treaties—such as, perhaps, Friendship, Commerce, and Navigation treaties—for which such legislation might be both desirable and feasible. Finally, we agree wholeheartedly that efforts to educate members of Congress and state officials is going to be an important part of the long-term solution to the problems we identify in the piece.

Second, we are so grateful to have David Sloss, who is a leading scholar on this topic, join the symposium. For those interested in a comprehensive comparative treatment of these issues, his book offers a great resource. His observation that treaties regulate three types of relationships—horizontal relations between states, vertical relations between states and private parties, and transnational relations between private parties that cross national boundaries—is extremely illuminating and offers an important part of the picture. We think that it does not contradict our argument here. Many (not all, but many) treaties could be interpreted by a court in different ways. The Vienna Convention on Consular Relations, for example, might be regarded as a treaty that creates horizontal relations between states or as one that addresses vertical relations between states and private parties. The same is true of, for example, the 1783 Treaty of Peace between the United States and Great Britain that was famously the subject of the seminal case Ware v. Hylton, in which the Court upheld the right of individual British creditors to recover debts from Americans. In Medellin, the Court treated the Vienna Convention as exclusively creating horizontal relations and in Ware, it treated the Treaty of Peace as addressing vertical relations between states and private parties. That difference, we contend, is not dictated by the content or nature of the two treaties but is instead best explained by the different presumptions the Court applied in the two cases—a presumption in favor of inferring private rights and private rights of action from ambiguous treaty language in Ware and an explicit presumption against doing so in Medellin.

Third, Chimene Kietner’s response is clarifying. She is absolutely right that our exclusive focus in the piece is on treaty enforcement. We bury the caveat in footnote 14 (“This Article focuses exclusively on Article II treaties. When it uses the term ‘international law,’ it is referring only to such treaties.”). The article thus does not address even in passing the other major source of international law—customary international law—nor does it address the use of foreign and international sources in U.S. constitutional interpretation. As noted in the opening post, the article began as an attempt to understand the likely impact of Medellin on international law enforcement in U.S. courts. That proved a fruitful topic and one that deserved article-length treatment. The focus of the article thus does not reflect a “deeper reason”—indeed, one of us (Oona Hathaway) is counsel of record in a brief in Kiobel (to be argued before the Supreme Court on February 28) arguing that the Alien Tort Statute and Torture Victims Protection Act provide for civil liability for corporations for violations of specific prohibitory norms of international law.

Fourth, and finally, Steve Vladeck’s response is fascinating. His comments place the shift that we identify in treaty law enforcement into broader context. His observation that it has become far more difficult for courts to infer direct causes of action into federal statutes that fail expressly to so provide raises the prospect that the flipped presumption we identify is just one example of a much broader and more significant transition in the courts. We are persuaded that there may be comprehensive and worrisome parallels between the Supreme Court’s shifting approach to domestic enforcement of treaty obligations and its shifting approach to the availability of private enforcement of implied federal rights in other contexts. If that were true, it might suggest a slightly different causal story than the one we identify—one perhaps less focused on the Bricker Amendment controversy and the efforts to prevent the use of international treaties to challenge Jim Crow and more focused on the shift in the role of the courts in protecting individual rights more generally.

Our thanks again to all the participants for a fascinating discussion and to Opinio Juris for hosting it!

Choice-of-Law Clauses in European Sovereign Debt

by Kenneth Anderson

All is proceeding as my colleague Anna Gelpern has foreseen. Indeed. Years ago, she mentioned to me in passing that the markets seemed remarkably unaware, or anyway remarkably sanguine, about the question of whether local law (e.g., Greek law) or foreign law (e.g., English law) governed as the choice-of-law clause for the vast tonnage of European sovereign debt.  Today, we find the Greek government passing retroactive laws imposing collective action clauses and aggregation mechanisms on the very large proportion of its sovereign debt governed by Greek law.

Was this possibility priced into the bonds?  Or correctly priced-in? I myself find it hard to believe that it was, though without any evidence to speak of. But there are two excellent papers on these topics by Stephen Choi, Mitu Gulati, and Eric Posner that bear reading.  The first, last updated in March 2011, is “Pricing Terms in Sovereign Debt Contracts: A Greek Case Study with Implications for the European Crisis Resolution Mechanism”; the second, posted November 2011, is“Political Risk and Sovereign Debt Contracts.” (Thanks to commenter from my last sovereign debt post for reminding me of these.)

But one of the reasons for my (unsupported) intuition about pricing choice-of-law terms in European sovereign debt is simply my perception that the market (up until the sovereign debt crisis hit the newspapers) consisted of people for whom the issue was fundamentally interest rate risk, not credit risk.  So I was interested to see this post today at Zerohedge, attributed to Hypo Capital Management.  Ordinarily, I find Zerohedge a bit too edgy and conspiracy-theory oriented for my taste, but if the folks in this guest post have done the work they report here, I think it is quite interesting and important.

HCM say they have managed to walk through a sample of individual sovereign debt issuances, looking at debt covenants and choice-of-law clauses particularly, comparing local law and foreign law issuances.  They then plot these as yield-to-maturity against maturity, separating the local and foreign law-governed bonds to see whether there is a separation, for Greece, Italy, and several others.  Thus:

We did the unthinkable, read the unreadable and made it back alive to tell the tale: we ploughed through all of the individual bond prospectuses of our favorite list of countries in peril and actually found a lot of useful information for the investor. Given that the sovereign bonds of the Eurozone used to be looked at as riskless assets, it is safe to assume that the exercise hasn’t been done by a lot of investors on a regular basis. Judging by the difficulty to even obtain the information, both the interest of investors to obtain it and that of issuers and underwriters to provide it has been and remains extremely limited. [Emphasis added]

Well, good for them.  (I’ve since spoken with some market friends who tell me that others are busily doing the same exercise, but I don’t know what conclusions others have reached and haven’t had time to look.)  The countries they looked at were Greece, Portugal, Italy, Austria, Hungary, and Spain.  And their conclusion is, excepting Greece, there remains a potentially significant mis-pricing of sovereign debt, because prices continue to reflect the assumption that there is no important divergence created by choice-of-law clauses in the debt.  Which is to say, no political-legal risk in the countries listed above, apart from Greece, running to debt governed by local law rather than foreign law.  Which is also to say, the assumption of the markets continues to be that (excepting Greece) pari passu means pari passu:

In our view, the state of the crisis warrants a broad-based significant markup for investor-friendly prospectus language and we see trading opportunities in most of the countries we analyzed …. Establish selective long/short pair trades in maturity-matched foreign/local bonds, or go long foreign law bonds and hedge via CDS.

I have not tried to reproduce their graphs here; you can see them at Zerohedge.  Their broader comment is worth reproducing, however (emphasis added):

Relative illiquidity and low issuance sizes distort yields and spreads. Investors traditionally shunned foreign law bonds and piled into local law issues. This may seem puzzling at first glance, given the duration and severity of the crisis. We attribute this to the investor base: their thinking remains entrenched in traditional categories, namely interest rate risk as opposed to credit risk. Only when the threshold is clearly crossed -as in the case of Greece- does duration-based pricing make way for default-based pricing and a different investor base takes over. When Greece lost its last IG rating, it disappeared from the universe of EZ government bond managers and entered the realm of HY bond investors. Thus credit criteria began to matter and were being priced in. In our view, the state of the crisis warrants a broad-based significant markup for investor-friendly prospectus language and we see trading opportunities in most of the countries we analysed.

I am not sure I understand – or agree – with all their thinking here, however.  They say that investors shunned foreign law bonds and instead bought local law bonds.  Is that what the evidence (see their charts at ZH) or their deductive argument suggests?  It seems to me they argue that investors had reason to be, and in fact were, indifferent as between legal regimes governing the bonds.  That does not alter the conclusion that there might well be a mis-pricing opportunity as between foreign and local law bonds, but I don’t see that it arises strictly from a preference for one over the other, rather than indifference.

Welcome to the Blogosphere, Erga Omnes!

by Kevin Jon Heller

The blog is run (so far, solely) by Sonia Cardenas, the Charles A. Dana Research Associate Professor of Political Science and Director of the Human Rights Program at Trinity College in Hartford, CT.  Here is her description of the blog:

This site explores universal jurisdiction, through the prism of politics and human rights.  Universal jurisdiction is the revolutionary idea that any country can prosecute anyone for basic human rights crimes committed anywhere.  Usually, this is a topic covered by legal experts, but I’m a political scientist and human rights scholar.  I am especially curious about the contentious place of universal jurisdiction in today’s world—about the political and social struggles that ensue when states attempt to prosecute non-nationals for human rights crimes and the ethical and policy questions that follow.  The blog offers a space to reflect broadly on universal jurisdiction around the world, on contemporary debates and developments,including those surrounding torture, genocide, and piracy on the high seas.

Welcome to the blogosphere!

May the U.S. (Still?) Use Military Commissions for Crimes in Iraq?

by John C. Dehn

Over at Lawfare last Friday, Bobby Chesney commented on a NY Times article reporting that military commission charges have been initiated against Ali Musa Daqduq. Chesney describes Daqduq as “a Hezbollah member involved in an attack on American forces in Iraq in which the attackers disguised themselves as American soldiers and Iraqi police and in which several captured American soldiers were murdered post-capture.” As Bobby notes, Daqduq has been charged with various crimes, including perfidy, murder in violation of the law of war, material support to terrorism, and others.

The Times piece voiced concern about the fact that Daqduq is the first non-al Qaeda and non-Taliban defendant charged by the commissions. Bobby swept that concern aside by observing that a commissions proceeding against him is perfectly within the terms of the Military Commissions Acts of 2006 and 2009 (MCA). While I agree with that conclusion, I think Bobby glosses over an important underlying legal issue.

The reason that the proceedings against Daqduq are potentially problematic is because it is not clear whether using the MCA in this way in consistent with constitutional limits on the jurisdiction of military commissions. As I have explained here before, the Supreme Court has consistently held that military commissions are a part of the war powers of the U.S. government.  The Supreme Court explained in In re Yamashita,

German “Financial Services Executives” to Come to Greece to Provide Technical Assistance for Tax Collection

by Kenneth Anderson

I don’t see how this is going to go as planned:

More than 160 German financial services executives are willing to come to Greece in order to strengthen the Greek tax mechanism, according to a report to be published in the German magazine ‘Wirtschafts Woche’ … The magazine cites German deputy finance minister Hans Bernhard Beus, who explains that a key factor is the knowledge of a foreign language – some of them speak Greek – while the return to active duty of retired tax collectors should not be ruled out. Many come from the state of North Rhine-Westphalia, whose finance minister, Norbert Walter-Borjans, compares Greece with 90s East Germany, noting that even the East Germans at the time were suspecious towards the West.

Those of us who have worked in development finance at the bottom-most level, with local companies and officials, understand that no amount of technical assistance can work in the face of entrenched resistance in the location.  Less so still when the perception is that it is all pain and no gain.  Tax collection, more than most activities of government, depends upon perceptions of legitimacy; the idea that a government can collect against serious popular will is far-fetched, and particularly so when it is perceived as being on behalf of foreign interests.

It is likewise hard to see the local Greek tax collectors as wanting to be in the service of foreign governments and banks it seems to me as likely that they will see it as their patriotic duty to help tax evasion as stop it.  The reference to East Germany seems to me especially perplexing; whatever the East Germans’ suspicions of their rich West German cousins, it was reunification and they were all Germans.  Surely no one actually thinks that the arrival of tax collectors masquerading as technical assistance will be seen on any side in this as European solidarity? Yes, one could say that the price of receiving more bailouts has to be, on any objective measure, reform of Greece’s public finances – and that this is objectively a form of European solidarity.

But I would have thought that the ability to deliver this kind of tough love requires that one have internalized – really have internalized – some sense of shared demos.  Not just separate societies happening to share a currency union.  What German technical assistance proposes to do is properly understood as the consequence of a shared sense of citizenship that can accept joint sacrifice, not the act that produces it.

What I most don’t understand, however, is the strategy by Germany and other EZ states.  They are not stupid, and all of these concerns have occurred to them, along with many more.  It seems unlikely that they would proceed in the face of such obvious objections without some reasons to believe it could work.  Or some form of Plan B.  But I do not see what it is; suggestions welcomed.

Greenwashing… By Lego

by Kevin Jon Heller

Reuters reports that Denmark-based Lego will soon be powered solely by the wind:

The family firm that controls Denmark’s Lego is buying almost a third of a German offshore wind power project in an unusual foray outside the toy business to showcase its green credentials to customers.

Lego’s parent company, Kirkbi A/S, will invest 3 billion crowns ($534 million) for a 32 percent stake in DONG Energy’s 277-megawatt Borkum Riffgrund 1 wind farm, which is scheduled to be fully operational in 2015, the companies said.

[snip]

Lego said the investment would enable it to reach a target of generating enough renewable power to meet all its energy needs as the wind farm would produce more electricity than Lego would consume up to and including 2020.

“This investment supports the Lego Group’s ambitious environmental goals,” Kirkbi Chief Executive Soren Thorup Sorensen told Reuters.

I’m all for wind power.  But it’s worth pointing out that Lego produces 19,000 million bricks per year — each and every one made out of plastic, the primary ingredient of which is… oil.  So color me underwhelmed.

Mitt Romney Is Learning Geography from Fox News

by Kevin Jon Heller

At Wednesday’s debate, Mitt Romney claimed that one of the reasons Iran supports the Syrian government is that Syria is Iran’s “route to the sea.”  Hmm:

Where’s Syria?  Oh, yeah, it’s off to the left — past Iraq. And what’s that funny blue thing to the south of Iran?  Could it be… water?

Take it away, Emily Heil at the Washington Post: “Iran has direct access to waterways, thank you very much, with some 1,520 miles of coastline along the Arabian Sea. It doesn’t even share a border with Syria, so this ‘route to the sea’ that Romney spoke of would involve cutting through Iraq (rugged terrain!) before cutting through Syria to get to the sea. The journey from Tehran to Damascus is about 1,000 miles.”

We’d be in good hands with President Romney.

Self-Execution Beyond Treaties

by Steve Vladeck

Just two days ago, in his dissent in Douglas v. Independent Living Center of Southern California, Chief Justice Roberts argued that Medicaid beneficiaries should not be able to pursue injunctive relief under the Supremacy Clause against California state officials alleged to have violated the substantive provisions of the federal Medicaid statute, given that the federal law neither (1) provides a direct cause of action; nor (2) can be indirectly enforced via 42 U.S.C. § 1983. In his words,

to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U.S.C. § 1983 jurisprudence. We have emphasized that “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.

Although the Chief lost the battle on a technicality in Douglas, it seems safe to say that he’s winning the war. Alexander v. Sandoval made it far more difficult for courts to infer direct causes of action into federal statutes that fail expressly to so provide; Gonzaga University v. Doe (which the Chief himself argued back in his private practice days) made it far more difficult for litigants to indirectly enforce federal statutes against state officers via 42 U.S.C. § 1983 in cases in which the underlying statute wasn’t itself clearly meant to be privately enforced; and the Court’s comparable scaling back of implied constitutional remedies against federal officers under Bivens is no less well-entrenched.

I open with this point because, the more I read International Law at Home: Enforcing Treaties in U.S. Courts, the more convinced I become that we might draw fairly comprehensive (and perhaps alarming) parallels between the Supreme Court’s evolving approach to domestic enforcement of treaty obligations and its contemporary take on the availability of private enforcement of implied federal rights in the cases noted above. After all, I don’t think it’s that much of a stretch to see Medellín’s rather stilted approach to direct enforcement of treaties in largely the same light as the Court’s approach to private enforcement of federal statutory rights in Sandoval. And as with the historical pedigree of treaty enforcement carefully traced by Hathaway, McElroy, and Solow, it wasn’t until fairly recently (the 1970s) that the Supreme Court began to assert more systematic objections to inferred federal remedies.

Medellin’s Mischief, or Does International Law Stop at the Land’s Edge?

by Chimene Keitner

Hathaway, McElroy, and Solow offer an overview of attempts to enforce treaties directly in U.S. courts, as well as a typology of underappreciated modes of treaty enforcement, which they label indirect, defensive, and interpretive. In so doing, they enable us to better appreciate the ways in which courts engage with treaties, while at the same time reminding us that “the problem of international law enforcement is not simply one for the courts to solve” (106). They are to be commended for a piece that will help make the conversation about treaty enforcement better informed when it looks to the past, and more focused on concrete proposals when it looks to the future.

The article is in part motivated by the authors’ observation that courts have become less receptive to attempts by individuals to enforce treaties through private rights of action in the wake of Medellin (71). Although the authors believe that this reticence is based on a misreading of dicta from the Medellin decision (id.), they do not focus their energy on correcting this misinterpretation. Rather, they suggest possible alternative perspectives through which to view treaty enforcement by U.S. courts, and possible alternative mechanisms to bind the political branches to comply with international legal commitments.

Three observations might illuminate directions for future research. First, it is true that Sosa v. Alvarez-Machain focused on the law of nations prong of the Alien Tort Statute rather than its treaty prong, and so perhaps falls outside the scope of this particular analysis (77). It is also true that debates about the use of foreign and international sources in U.S constitutional interpretation do not involve treaty enforcement per se (90). However, to the extent the authors seek to explore “when international law can be used in U.S. courts and when it cannot” (52), a broader lens might reveal other interesting dynamics at work, such as those examined in David Sloss, Michael Ramsey, and William Dodge’s edited volume on International Law in the U.S. Supreme Court. If by “international law” the authors really do mean just treaties, it would be interesting to know whether this focus simply flows from the subject-matter of Medellin, or whether there is a deeper reason (other than, quite understandably, space constraints) for a focus on treaties to the exclusion of customary international law.

Medellín’s Influence on the Judicial Application of Treaties

by David Sloss

It is a privilege to comment on the excellent article by Professor Hathaway and her co-authors entitled “International Law at Home: Enforcing Treaties in U.S. Courts” (“IL at Home”). The article makes several important contributions to the growing body of scholarship on the domestic application of treaties in US courts and I agree with many of the authors’ central claims. In this brief comment I will focus on one of the more important claims that, in my view, is not entirely persuasive. IL at Home asserts that a single sentence in the Supreme Court’s decision in Medellín v. Texas “has led to a significant shift in U.S. courts’ approach to Article II treaties.” IL at Home, at 70. The sentence at issue says there is a “background presumption . . . that [treaties] . . . do not create private rights or provide a private cause of action in domestic courts.” Medellín, at 506 n.3.

I believe that Medellín‘s presumption against private rights of action has had less influence — or perhaps a different type of influence — than the authors claim. To understand why, it is necessary to discuss judicial practice before Medellín. According to IL at Home, in the period from World War II to Medellín, “the lower federal courts developed a bifurcated approach to treaty enforcement.” Id. at 64. They “continued to infer a private right of action for treaties that involved economic or commercial relations. But they began taking a more skeptical approach toward treaties . . . regulating the relationship between the state and the individual.” Id. at 64-65.

This claim is mostly right, but the authors fail to specify the lines between the bifurcated categories with adequate precision. As I have written elsewhere, treaties regulate three types of relationships: horizontal relations between states; vertical relations between states and private parties; and transnational relations between private parties that cross national boundaries. See David Sloss, Treaty Enforcement in Domestic Courts: A Comparative Analysis, in THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY (Sloss ed., 2009). US courts never had a major role in enforcing horizontal treaty provisions. From the Founding until World War II, domestic courts played a significant role in enforcing both vertical and transnational treaty provisions. Since World War II — or at least since publication of the Restatement (Second) of Foreign Relations Law in 1965 — US courts have been hesitant to enforce vertical treaty provisions, but they have continued to enforce transnational treaty provisions quite vigorously. See David Sloss, United States, in THE ROLE OF DOMESTIC COURTS, supra.

John Bellinger Comments on “International Law at Home”

by John Bellinger

As a member of the Secretary of State’s Advisory Committee on International Law, both while I was Legal Adviser and under Harold Koh, Oona Hathaway has made very useful contributions to the work of the Legal Adviser’s office, especially on treaty issues. “International Law at Home,” which Oona has written together with her colleagues Sabria McElroy and Sara Aronchick Solow, continues in this same vein. I haven’t yet had a chance to read the article and its wealth of footnotes in great detail, but I will offer a few comments:

1. I was surprised by the Supreme Court’s Medellin 2008 decision. I spent four years at the State Department working on the case and spent my last day in government flying back from the Hague on Inauguration Day 2009 after receiving the judgment of the ICJ after Texas executed Jose Medellin. I had expected a majority of the Supreme Court to affirm the validity of President Bush’s February 2005 order directing state courts to comply with the ICJ’s 2004 Avena decision. I have heard a few die-hard critics suggest that the President must have expected that he would be reversed by the Supreme Court, but it does not make much sense to me that the President would order compliance with an ICJ decision knowing his order would be struck down. His order was decidedly unpopular in Texas and with conservatives, and he received little credit in the international community for his effort to comply with international law. To my knowledge, the President made his decision, based on the recommendation of his Secretary of State, because the U.S. is required under the U.N. Charter to comply with decisions of the ICJ and because demonstrating commitment to the Vienna Convention on Consular Relations (VCCR) would help protect Americans who are arrested in other countries, as I explained in my testimony last summer before the Senate Judiciary Committee in support of the Consular Notification Compliance Act of 2011.

2. The Medellin decision’s requirement for a clear textual statement that a treaty is self-executing has caused practical difficulties and uncertainties for the Legal Adviser’s office in the negotiation of new treaties and interpretation of existing treaties. As Oona and her colleagues point out, it is very difficult for US negotiators to insist on a general statement of self-execution in multilateral conventions which are implemented in different ways in different legal systems. (Mindful of the need for Senate approval and the careful scrutiny that all treaties are subject to by various groups in the U.S., State Department lawyers are already required to be the most meticulous negotiators of any country in the world, which contributes to the perception that the U.S. is generally skeptical of all treaties.) And the Supreme Court’s decision that the U.N. Charter is not self-executing, coming 63 years after its ratification, has sent State Department lawyers scrambling to determine how many other treaties might also not be self-executing.

3. Part III of the article — “How International Law Comes Home” — is an especially valuable and well-documented compendium of the different ways treaties are applied in U.S. courts.

4. Part IV of the article includes several practical suggestions for ensuring enforcement of treaties in U.S. courts. I agree that a Clear Statement Rule — a statement by the President and the Senate indicating whether they intend a treaty to be self-executing — should be the equivalent of the “explicit textual expression of self-execution” required by the Court in Medellin. To my knowledge, this practice is already being observed by the Executive branch and the Senate after Medellin. I am less enthusiastic, or at least less sanguine, about the article’s suggestion of comprehensive legislation to allow private rights of action under a wide range of treaties. A legislative enactment is required to implement certain treaties, including the UN Charter according to the Supreme Court. As noted above, I supported Senator Leahy’s Consular Notification Compliance Act in order to ensure the U.S. can comply with its treaty obligations and to ensure consular protections for Americans abroad. Unfortunately, that bill not only does not appear to be moving forward, but some Senators have even questioned whether the federal government has the constitutional authority to require state officials to give consular notice, even if required by the VCCR. Therefore, I suspect that the article’s recommendation for a “broad-based proactive statutory approach” will be a bridge too far for the Congress right now.

5. I would add a final suggestion for “How to Strengthen International Law At Home.” The American Society of International Law, foundations, and other interested groups should step up their efforts to educate members of Congress and state officials about the value to their constituents of certain treaties, such as the VCCR and other more technical international agreements. These officials need to understand better that the State Department does not negotiate these treaties in order to bestow unilateral benefits on other countries but because these treaties are in the interest of everyday Americans.

Sovereign Debt and Collective Action Clauses

by Kenneth Anderson

The Wall Street Journal’s “Heard on the Street” column yesterday made an interesting comparison between sovereign bonds and corporate bonds.  It pointed out that although in ordinary times, developed country sovereign debt is typically considered safer than corporate bonds of the same jurisdiction – the risk free rate of return, and the sovereign power to be able to tax, etc. – in extraordinary times, sovereign debt presents political risks not present in corporate bonds.

[T]he Greek debt restructuring is showing that in some ways, corporate-bond investors have more clout—and are less exposed to arbitrary actions—than their government peers. Greece is hoping bondholders will write off over €100 billion ($132.4 billion) of debt in a voluntary bond swap. But in an attempt to ensure the swap is completed, it is also introducing collective-action clauses in its bonds. That will mean that if enough bondholders sign up, even those that don’t will be swept up in the swap. Meanwhile, the European Central Bank has done a side deal with Greece that means its bonds are excluded from these clauses and thus won’t take losses. Unlike the International Monetary Fund, which injects new money to help fund a distressed country on the understanding its debt is ranked above other bonds, the ECB simply bought in the secondary market and then declared it wouldn’t take a loss. Its estimated holding of €45 billion of Greek bonds means that private-sector investors have to take deeper losses to make the numbers work.

No company can change the terms of its bonds retroactively, as Greece is able to do since over 90% of its debt is governed by Greek law. Any corporate borrower that tried to treat one of its existing bondholders more generously than others would get short shrift. Further, creditors have no recourse to sovereign assets in Greece, whereas in a corporate-debt restructuring, there are underlying assets—factories, stock, equipment—that ultimately can be seized and valued. If corporate bondholders convert their debt into equity as part of a restructuring, they then have the power that equity ownership confers: They could demand new management. Greek bondholders can’t demand a new Greek government. There is no such thing as sovereign equity. That makes corporate bonds look safer in some situations than government debt.

The article goes on to point out that the markets are valuing some Portuguese corporate bonds in exactly this way – as less risky than Portuguese sovereign bonds.  Of course, the traditional method of imposing political risk was simply through inflation and devaluation, which is not available to EZ members unilaterally – so the emphasis turns to retroactive imposition of collective action clauses and such mechanisms.  But via Fabrizio Goria’s Twitter feed, we can take a look at a number of samples of collective action clauses with aggregation mechanisms, via a useful document prepared by Cleary Gottlieb.  It simply offers a sample of the language found in various prospectuses from the last ten years or so, including Argentina, the Dominican Republic, and other places – very instructive reading.

In addition, Goria also points us to a useful short article at Bepress, by Joy Dey from 2009 – useful primer to the issues involved.  Of course, my colleague Anna Gelpern, plus Mitu Gulati and several others, have been writing extensively on these questions, posted at SSRN and elsewhere. Talking about this occasionally with Anna Gelpern, I always wonder to what extent the fact of Greek law controlling most of the bonds rather than English law was considered at all, let alone rationally priced in.  The WSJ column ends with the observation that the safety of sovereign bonds was always considered the power to tax.  As the EZ sends special envoys to monitor Greece’s fiscal posture, the ability actually to collect the taxes levied looks rather in doubt.  No amount of legal or financial engineering, it would seem, creates the ability for foreign tax collectors to collect what the Greeks themselves have never been willing or able to collect.  As Reinhardt and Rogoff observed in This Time is Different, in sovereign debt crises, it is the control exercised by the local government in response to local stakeholders that causes it to favor local interests over foreign ones – no matter what the pieces of financial paper say.  It is unlikely that in Greece, this time will be different.

Ninth Circuit Embraces Foreign Affairs Field Preemption

by Roger Alford

Yesterday the Ninth Circuit, sitting en banc, has unanimously embraced the doctrine of foreign affairs field preemption. It will surely prove to be a controversial blockbuster case for foreign affairs law, with or without Supreme Court review.

The case of Movsesian v. Munich Re addressed a California statute, section 354.4, that authorized California courts to entertain various insurance claims brought by Armenian Genocide victims arising out of policies issued or in effect between 1875 and 1923. There was no clear conflict with a federal law, but rather a longstanding reluctance on the part of the federal government to formally recognize the Armenian Genocide for fear that it would offend U.S.-Turkish relations. Thus, one anticipated that the case would rely on cases such as Crosby, Garamendi and Medellin to determine whether the state law conflicted with a federal policy.

The Ninth Circuit did not take the path of conflict preemption, choosing instead to find that foreign affairs field preemption, (also known as dormant foreign affairs preemption), controlled the question.

First, the Ninth Circuit concluded that it was not enough that the California law concerned an area of traditional state responsibility, namely regulating insurance and passing laws providing state causes of action. One must look to the real purpose of the state law, which was to “provide potential monetary relief and a friendly forum for those who suffered from certain foreign events.” Focusing on the purpose of the statute led the court to conclude that the law did not concern an area of traditional state responsibility.

Second, the Ninth Circuit concluded that the law intruded on the federal government’s exclusive power to conduct and regulate foreign affairs:

The law establishes a particular foreign policy for California–one that decries the actions of the Ottoman Empire and seeks to provide redress for ‘Armenian Genocide victim[s]’ by subjecting foreign insurance companies to lawsuits in California….

The passage of nearly a century since the events in question has not extinguished the potential effect of section 354.4 on foreign affairs. On the contrary, Turkey expresses great concern over the issue, which continues to be a hotly contested matter of foreign policy around the world….

[S]ection 354.4 expresses a distinct point of view on a specific matter of foreign policy. Its effect on foreign affairs is not incidental; rather, section 354.4 is, at its heart, intended to send a political message on an issue of foreign affairs by providing relief and a friendly forum to a perceived class of foreign victims…. [T]he law imposes a concrete policy of redress for ‘Armenian Genocide victim[s],’ subjecting foreign insurance companies to suit in California by overriding forum-selection provisions and greatly extending the statute of limitations for a narrowly defined class of claims. Thus, section 354.4 ‘has a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with those problems.’ Zschernig, 389 U.S. at 441. Section 354.4 therefore intrudes on the federal government’s exclusive power to conduct and regulate foreign affairs.”

Wow. I have been following this case for two years and would never have predicted that foreign affairs field preemption would control the result. The entire course of litigation appeared to be addressing questions of conflict preemption in the absence of a clear federal mandate or even an obvious federal policy with respect to the Armenian genocide.

One wonders, of course, whether the Ninth Circuit decided to embrace field preemption to avoid the problematic question of finding conflict preemption in the absence of a federal law on the matter. The broadest reading of Garamendi seemed to allow for the possibility of federal policy preemption, but Medellin arguably cut back on that position.

If field preemption governs the question of foreign affairs, one wonders why the Supreme Court bothered with its conflict preemption analysis in Crosby and Garamendi.

On the Ninth Circuit’s reading, with respect to any subject that intrudes on foreign affairs, all that matters is whether the real purpose of the state law is to respond to foreign events instead of pass laws of neutral applicability.

Of course, any number of state laws may now be preempted under foreign affairs field preemption. These might include, for example, long-arm statutes to address libel tourism, state laws regulating drug trafficking at international borders, ad hoc state tax credits to promote targeted foreign direct investment, emergency state funds for the benefit of Japanese tsunami victims, or state pension divestment rules such as those applied to address South African apartheid. In all such cases the purpose of the state law is to address specific issues arising from foreign events rather than pass neutral laws of general applicability. Therefore those laws too would be preempted under the Ninth Circuit’s expansive foreign affairs field preemption analysis.

What if Someone Kept a Transcript at Bretton Woods, and It Was Lost for 72 Years?

by Julian Ku

I hadn’t heard about this story, and I am still rather stunned to read that

…An official studying deep in the bowels of the US Treasury library has recently uncovered a prize of truly startling proportions – an 800 page plus transcript of the Bretton Woods conference in July 1944, the meeting of nations which established the foundations of today’s international monetary system.

Bizarrely, this extraordiary manuscript has never before come to light. Professor Steve Hanke of John Hopkins University, whose former student it was who discovered the document, is now dashing to publish it in full in conjunction with his friend, Jacque de Larosiere. The first stage of the process, transcribing the type-written document into digital form is now complete, though it is not yet available. It’s hoped eventually to produce a hard copy, book version.

As far as I know, there has been relatively little attention paid to the Bretton Woods conference as part of the study of the IMF, its Articles of Agreement, and GATT. That is to say, the drafting history seems to play a smaller role than one might think it would when analyzing these agreements as legal documents.  So this seems to open a remarkable new source for research and insight into these agreements.

Introducing International Law at Home

by Oona Hathaway and Sabria McElroy and Sara Aronchick Solow

We would like to open with a word of thanks to Opinio Juris, to our editors at the Yale Journal of International Law, and to the commentators who have agreed to participate in this discussion, for making this symposium possible. We are so grateful to be a part of this community.

Our article, International Law at Home: Enforcing Treaties in U.S. Courts, aims to make sense of when and how international law can be used in U.S. courts and when it cannot. We began working on this article now nearly three years ago in the immediate aftermath of the U.S. Supreme Court’s decision in Medellín v. Texas. At the time, we aimed to understand the likely impact of Medellín on the enforcement of international law in U.S. courts and consider how the government might respond.

In the article that has since taken shape, we have three central aims. First, we seek to provide an account of the legal and historical context of Medellín—examining both the case law that led up to the decision and how the lower courts have since responded. Although we are far from the only ones to provide an historical account of the enforcement of international law in U.S. courts, we aim to point out some patterns that may have not been fully addressed. We show that between 1790 and 1947, the Supreme Court adopted a presumption both in favor of finding treaties self-executing and finding that they created a private right of action. Interestingly, these cases involved four areas of primary rights—contract, property and inheritance, habeas corpus, and the right to carry on a trade—that had always been treated as judicially enforceable under the common law. That strong presumption in favor of enforcement weakened but did not disappear in the period following World War II, a shift we argue can be traced at least in part to a backlash against the emerging human rights revolution and the threat some feared it posed to racial segregation and Jim Crow. Finally, we show that in the few years since Medellín, the lower federal courts appear to have interpreted Medellín to put in place a strong presumption against treating treaties as self-executing or as creating a private right or private right of action. Medellín has thus apparently succeeded in flipping the Founding-era presumption in favor of enforcement into a presumption against.

Second, we aim to place direct enforcement of international law through private rights of action into broader context in a second way—by looking at all the ways in which international law can be enforced in U.S. courts. The direct enforcement of treaties called into doubt in the wake of Medellín is only a part of the picture, we argue. Treaties are enforced in U.S. courts in several other ways as well—through what we term “indirect enforcement,” “defensive enforcement,” and “interpretive enforcement.” By examining this broader scope of treaty law enforcement, we hope to place the effect of Medellín into perspective. We hope, as well, that this fuller picture of treaty law enforcement will be useful to scholars and practitioners aiming to better understand how international law “comes home” in the United States.

Third, we consider steps that can be taken to increase the likelihood that treaties will continue to be enforced in U.S. courts in a post-Medellín world. We offer three proposals for how each of the branches of the federal government can strengthen the enforcement of international law. First, we argue, Congress could pass legislation providing for the judicial enforcement of certain subsets of Article II treaties. We suggest that this might be used not only to address the enforcement of individual treaties but could be used as a broader fix in particular areas of law—most notably to address new concerns about the enforceability of commercial treaties placed into doubt by Medellín. Recognizing that legislative fixes face difficult political obstacles in the short term, we offer two other proposals as well. Our second proposal is for a Clear Statement Rule: the President could submit treaties to the Senate for ratification with clear statements about whether they are self-executing, either in the treaty’s formal text or accompanying documents. Indeed, this is already becoming a part of existing practice post- Medellín. Third, we point out that the federal government can resort to a Public Right of Action through which it would bring lawsuits to enjoin state and local governments from activities that place the United States in violation of its international treaty obligations. We argue this approach should be used sparingly, however, as it places the federal government in an adversarial position vis-à-vis a state or local government. Together, our proposals acknowledge that the problem of international law enforcement is not simply one for the courts to solve. It is as much within the Congress and the President’s power and responsibility to address as it is within the courts’. The President and the Senate, after all, concluded the Article II treaties now called into doubt, and we argue that they must now work, together with the courts, to put the doubts to rest.

Opinio Juris/Yale Journal of International Law Symposium: Hathaway, McElroy, and Solow on International at Home

by Editors of the Yale Journal of International Law

The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris through this symposium. Today we will be discussing an Article by Oona A. Hathaway (Yale Law School), Sabria McElroy, and Sara Aronchick Solow, (both Yale Law School class of 2010) entitled International Law at Home: Enforcing Treaties in U.S. Courts and published in Vol. 37, No. 1. Our sincere thanks to Peggy McGuinness and the rest of the Opinio Juris team for hosting this exciting discussion.

Although this discussion will focus on International Law at Home, we would like to introduce two additional Articles in Vol. 37, No. 1. First, in The “Gateway” Problem in International Commercial Arbitration, George Bermann (Columbia Law School) discusses how and when courts should decide “gateway” issues in international arbitration—issues that go to the validity of the agreement to arbitrate. Professor Bermann argues that the French and the German approaches neither adequately explain courts’ decisions nor provide a strong logical basis for them. In contrast, the more nuanced U.S. approach, which involves demarcating “gateway” and “non-gateway” issues, has strong explanatory and normative force. Recognizing the pragmatic balance struck between legitimacy and efficacy explains an otherwise confusing set of precedents and provides a superior approach to recognizing the gateway.

Second, in Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Law, Anthea Roberts (Harvard Law School (Visiting Professor) and Department of Law, London School of Economics and Political Science) and Sandesh Sivakumaran (School of Law, University of Nottingham) examine the role of nonstate actors in the formation of international humanitarian law. They argue that the current model, in which nonstate actors are subject to international humanitarian law, but do not have a role its creation, is outdated and normatively questionable. Using the example of nonstate armed groups, Professors Roberts and Sivakumaran explain why nonstate actors should be a given a role in the creation of international humanitarian law. They then explore how the interests of nonstate groups could be incorporated into the formation of international humanitarian law using a less statist approach to the doctrine of sources.

With that, we begin the discussion of International Law at Home. The article is available at YJIL’s website. We are pleased to welcome a distinguished group of commenters including: John Bellinger, former Legal Adviser to the Department of State and currently a Partner at Arnold & Porter, David Sloss from Santa Clara Law, Chimène Keitner from University of California, Hastings College of the Law, and Steve Vladeck from American University Washington College of Law.

Professor Hathaway, Ms. McElroy, and Ms. Solow introduce their piece here. The comments will be posted throughout the day tomorrow.

Ben Wittes’ Appalling Take on Rahmatullah

by Kevin Jon Heller

Readers interested in watching Ben Wittes desperately try to spin British condemnation of the U.S. approach to the war on terror need only check out his post today on Rahmatullah.  As I discussed a couple of months ago, the British Court of Appeals held that Rahmatullah was entitled to be released from U.S. custody because the U.S. had rendered him from Iraq to Afghanistan in violation of the Fourth Geneva Convention.  No one ever expected the U.S. to release Rahmatullah; the U.S. has a long and ignoble history of ignoring criticism from abroad, even when that criticism comes from its close allies.  And that is exactly what happened: the U.S. refused to release him.  So three days ago the Court of Appeals issued a new decision stating that there was nothing more it could do to enforce its writ of habeas corpus.

Enter Wittes, seeing the sordid affair as some kind of reaffirmation of American goodness and virtue:

It is always an awkward spectacle when a court has to climb down, having issued an opinion that it has no real power to effectuate. That’s what has now happened in the British Court of Appeals in the case of Yunus Rahmatullah. The opinion, which came down today, is a faintly-embarrassing retreat from the judicial arrogance with which this case began. The Rahmatullah case began with a roar, but it ends with a whimper.

Rahmatullah, you’ll recall, is the Pakistani detainee held at Bagram by U.S. forces but who was captured by British forces in Iraq in 2004 and transferred to American custody. Back in December, as Bobby explained at the time, the British court ruled that he was being unlawfully detained and issued a habeas writ compelling the British government to seek his return so that he could be freed. In that opinion, the judges were making a statement of sorts–a statement of impatience with supposed American lawlessness and with the war paradigm for counterterrorism. They were ordering the British government, on pain of contempt, to confront these evils, at least as to this one detainee.

[snip]

And in today’s opinion, the same British court that ordered this whole Kabuki dance concluded that, well, yes, this was, in fact, good enough. The tone of the opinion today is very different from the tone of the one in December.

This interpretation of the decision may comfort Wittes, but it bears no resemblance to what the Court of Appeals actually wrote.  Here are the most important paragraphs:

16. The melancholy truth is that the events since we handed down judgment appear to establish that (i) when the UK defence forces handed over the applicant to the US authorities in questionable circumstances in 2004 (see [2011] EWCA Civ 1540, para 9), they most unfortunately appear to have sold the pass with regard to their ability to protect him in the future, and (ii) Mr Parmenter of the MoD turns out to have been right when he said that he thought that the issue of a writ of habeas corpus would, in terms of its practical outcome for the applicant, be a ‘futile course of action’ (see [2011] EWCA Civ 1540, para 21).

17. That does not mean that the issue of the writ of habeas corpus was a pointless exercise in this case: it performed its minimum function of requiring the UK Government to account for its responsibility for the applicant’s detention, and to attempt to get him released. This case is an illustration of (i) the court performing perhaps its most vital role, namely to ensure that the executive complies, as far as it can, with its legal duties to individuals, in particular when they are detained, and (ii) the limits of the powers of the court, as a domestic tribunal, in that its reach cannot go beyond its jurisdiction, and that jurisdiction does not extend to the US military authorities in Afghanistan.

So, in Wittes’ view, it is “judicial arrogance” to point out that the U.S. violated the Fourth Geneva Convention when it rendered Rahmatullah from Iraq to Afghanistan (and that British authorities should never have handed him over in the first place).  And it is “a faintly-embarrassing retreat” from that “judicial arrogance” to reaffirm that the U.S. violated the Fourth Geneva Convention and acknowledge that, in light of the U.S.’s willingness to ignore one of its closest allies, there was nothing more the court could do to remedy the violation.  Apparently, Wittes believes that the Court of Appeals should have ordered the British military to invade Bagram and free Rahmatullah.

Finally, note Wittes’ reference to “supposed American lawlessness.”  I guess that it’s “supposed” because Wittes personally disagrees with the Court of Appeals’ careful analysis of the Fourth Geneva Convention issue.  Far be it from him to explain why it was legal for the U.S. to transfer Rahmatullah into occupied territory.  Indeed, Wittes does not even bother to defend the Yoo-like memo written by his co-blogger, Jack Goldsmith, that the Court of Appeals repudiated in its first decision and repudiates again in this one.  Better to simply accuse British judges of being arrogant wussies.

I guess legal argument is for wussies, too.  Real men like Wittes engage only in empty rhetoric.

UPDATE: Ben links to my post at Lawfare and asks, sarcastically, what I really think about his post.  That’s one of the things that I genuinely like most about him: he can take it as well as dish it out.  Unlike someone like David Bernstein, who complains endlessly when someone uses the same kind of rhetoric toward him that he regularly uses toward others — this post, in which Bernstein said he’d engage in “honest, intelligent debate” about Israel with Glenn Greenwald only if Glenn “promise[d] to blog more responsibly in the future,” made my entire week — Ben knows full well and accepts that when you write as tendentiously as he does, others (i.e., me) are going to respond in kind.

The Choice-of-Law Conundrum for Torts in Iraq

by Roger Alford

Last week the Fifth Circuit rendered a fascinating decision in McGee v. Arkel Int’l about choice-of-law rules as applied to torts in Iraq. I’ve never seen anything quite like the Iraqi law in question, so I thought it is worth sharing for the private international law aficionados among our readers.

The Iraqi law in question, passed by the Coalition Provisional Authority, tries to avoid the application of Iraqi tort and contract law to contractors working in Iraq for the U.S. Defense Department. With respect to contracts, Section 4 of CPA Order 17 provides that:

Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts….

Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract….

With respect to torts, Section 18 of CPA 17 provides that:

[T]hird-party claims including those … for personal injury, illness or death … arising from or attributed to acts or omissions of … Contractors or any persons employed by them for activities relating to performance of their Contracts, … shall be submitted and dealt with by the Sending State whose personnel … are alleged to have caused the claimed damage, in a manner consistent with the Sending State’s laws, regulations, and procedures.

So what substantive law governs when a National Guardsman is electrocuted in Iraq while cleaning a Humvee due to faulty wiring of an electric generator maintained by a Defense Department contractor? That was the question the Fifth Circuit had to decide in McGee.

Applying Louisiana choice-of-law principles, the Fifth Circuit concluded that Iraqi substantive law applied. The wrongful conduct and resulting injury occurred in Iraq, therefore Iraqi law should apply under Louisiana choice-of-law rules. As for CPA 17, the Fifth Circuit concluded that it required application of Louisiania law, which includes Louisiana choice-of-law.

Section 18 requires claims to be ‘submitted and dealt with … in a manner consistent with the Sending State’s laws, regulations and procedures.’ Included in that law is the state’s choice-of-law principles. Consequently, if the plaintiff’s claim is ‘submitted and dealt with … in a manner consistent’ with Louisiana law, that law uses Iraqi law for the standards of conduct and safety. Section 18 restates what the law of the forum state for the current suit, Louisiana, already required. It is superfluous here.

Judge Edith Jones dissented, finding that CPA 17 was trying to guarantee the application of the Sending State’s substantive law, not its choice-of-law rules.

In my view the whole point of Section 18 is to substitute the Sending State’s substantive laws for those of Iraq. Read in the majority’s fashion, the courts and ‘processes’ of Iraqi law are excluded from handling these cases under Iraqi law, but American courts are not…. This reading of Section 18 is unnecessary. To say that the tort claims shall be handled ‘consistent with the Sending State’s laws’ need not include the Sending State’s conflict of laws reference back to Iraq. Such an interpretation preserves the evident intent to apply the domestic law of Sending States to their contractors operating in Iraq.

Anyone familiar with choice-of-law rules knows the doctrine of renvoi. Thus, when drafting a governing law clause in a contract one must be very careful to draft it in such a way that choosing the law means choosing the internal law, not choice of law which may send you right back to another jurisdiction’s substantive law.

It would seem that the Coalition Provisional Authority did not anticipate this fairly standard problem when it adopted CPA 17, with the result that Iraqi substantive law will govern the merits of tort claims involving Contractors, even though Iraqi law stipulates that such torts will be dealt with in a manner consistent with the laws, regulations, and procedures of the Sending State.

Tucker Carlson Advocates Genocide (Bemusingly Updated)

by Kevin Jon Heller

Various right-wing commentators, Mitt Romney, and dozens of congressmen have demanded that the President of Iran, Mahmoud Ahmadinejad, be prosecuted for genocide for advocating (in one debatable translation) the destruction of Israel.  I wonder if they will be quite so passionate about demanding a similar fate for Tucker Carlson, who earlier today openly advocated the destruction of Iran by the U.S.:

I think we are the only country with the moral authority […] sufficient to do that. [The U.S. is] the only country that doesn’t seek hegemony in the world. I do think, I’m sure I’m the lone voice in saying this, that Iran deserves to be annihilated. I think they’re lunatics. I think they’re evil.

That sound you hear?  Crickets chirping.

UPDATE: Carlson, apparently believing we are all idiots, now says that he “misrepresented his own views,” because he “was actually trying to make the opposite point but… was doing it in a very inarticulate way.”  That, of course, is right-wing speak for “I wasn’t supposed to say out loud what I really think.”

Time to Get Rid of that Facebook Account

by Julian Ku

I’m not sure I approve of this trend:

Legal claims can now be served via Facebook in Britain, after a landmark ruling in the English High Court.

Mr Justice Teare gave the go-ahead for the social networking site to be used in a commercial case where there were difficulties locating one of the parties.

Facebook is routinely used to serve claims in Australia and New Zealand, and has been used a handful of times in Britain. However, this is the first time it has been approved at such a high level.

Jenni Jenkins, a lawyer at Memery Crystal, which is representing one of the parties in the case said the ruling set a precedent and made it likely that service-via-Facebook would become routine.

“It’s a fairly natural progression. A High Court judges has already ruled that an injunction can be served via Twitter, so it’s a hop, skip and a jump away from that to allow claims to be served via Facebook,” she said.

In 2009, Mr Justice Lewison allowed an injunction to be served via Twitter in a case where the defendant was only known by his Twitter-handle and could not easily be identified another way.

Another Warbot Metaphor: Nanobot Swarms and Regulatory Challenges

by Chris Borgen

My previous post mentioned battlefield robot analogs of dogs, cheetahs, pack animals, even humans. Now behold the synchronized nanobot swarm

Here’s what national security analyst John Robb had to say about the tactical benefits of a battlefield drone swarm:

•It cuts the enemy target off from supply and communications.
•It adversely impacts the morale of the target.
•It makes a coordinated defense extremely difficult (resource allocation is intensely difficult).
•It radically increases the potential of surprise

Things start to get really interesting when the confluence of two technologies cause even more radical changes. Take, for example, how fabrication technology and micro-drone tech may one day allow new drones to essentially be printed out by fabbing machines.  Not there yet, but perhaps someday.

The underlying issue is that technology is changing so fast, it may be thwarting legal regulation from adequately responding to the implications of technological change. I italicized “may” because I am not certain that this is the case.

Law (and perhaps especially the common law) is propelled by metaphors.  Its timely adaptation to a new technology partially relies on whether an apt metaphor can first orient the regulatory perspective, providing a basic frame for the problem, so that a combination of legislation and judicial interpretation can then fill-in more precise details. 

For example, there were the arguments in the 1990’s (and still today…) over whether the internet is more like a broadcast medium, a mail service, or phone service. In part, the regulation of activiities on the internet has been based on applying various metaphors to different fact patterns, trying to apply old rules and, with some new legislation and interpretation, make them do new tricks. Perhaps this is all that is needed and technology has not left law in the dust.

If that is the case, while battlefield robots may present some new risks, do they actually overturn IHL as we know it? (Similarly do some of the other topics mentioned in the links, such as the implications of DNA hacking, raze pre-existing rules?) Are these actually areas where many whole new areas of substantive rules are needed, or are these examples of areas where regulatory enforcement just got alot harder?

At least regarding IHL, is technological change affecting primarily the substance of law or the enforceability of law, or both equally?  I look forward to any comments from others in the Opinio Juris community…

Drone Warfare Clearly Getting Out of Hand

by Kenneth Anderson

The Collapse in Greek Living Standards, and a Question about Internal EU Welfare Migration (Updated)

by Kenneth Anderson

The New York Times Magazine has a story that is oddly depressing, on the one hand, and counter-intuitively optimistic, on the other – a report by Russell Shorto called simply, The Way Greeks Live Now (February 13, 2012).  At the macro-level, things look unremittingly bleak; even if the latest deal reached last night holds, I don’t think anyone believes it does more than kick more cans down the road in the Eurozone.  At the micro-reportorial level, the situation is complex, as Shorto explores in his interviews.

Vafiadis is 56 and has spent his life in construction. For the last 10 years, he has been a site supervisor for a company called Archi-Tek, overseeing the building of big, mostly government-sponsored projects like schools and museums. At its height, the company had 50 people on staff and employed about 900 contract workers. Today it has two employees: engineers who are basically putting finishing touches on completed projects. All work in the Thessaly region, where the company is based, has dried up. Vafiadis was laid off in September, two years short of retirement. He took a drag on his cigarette and said, in a mud-thick smoker’s voice, “There’s no brightening in the future.” He was referring to both the Greek situation and his own. “I think things will only get worse.” ….

They have no savings, they told me, because when they bought their home in 2000, they used their life savings as a down payment. Plus they have two sons in their early 20s, both of whom they put through college. One son, Traianos, who studied electrical engineering, sat with us as we talked, and when the subject of fallback financial reserves came up, there was a sudden flurry of back-and-forth banter in Greek, tinged with tension and dark laughter. Eventually Traianos explained to me that his father’s sister died some years ago and left her savings to her two nephews: Traianos and his brother. “So now our children can start giving to us, for a change,” Petros Vafiadis said with a laugh. To which his son replied, with an edgy chuckle, “If things get harder, then we’ll give.”

The discussion turns to a traditional solution to economic crisis at the individual level – migration in search of work.  There is little question that a wave of educated, younger Greeks are looking to migrate and, as the article notes, perhaps repeating the out-migration of the 1940s.  But there are two differences, one being the out-migration of the most educated and younger workers:

As the economy implodes, young people are leaving Giannitsa. Traianos Vafiadis, who is 24, told me that of the group of six friends he has had since childhood, he is the only one with a job, and the others have all emigrated or are looking for work abroad. I heard over and over from young Greeks that they are painfully aware of repeating the cycle that most recently occurred in the late 1940s, when a great diaspora of young Greeks left the country for work. The crucial difference is that now well-educated young people — future doctors, teachers and engineers — are leaving, suggesting that what is taking place is the hollowing-out not only of an economy but also of a whole social system.

The second difference is demographic.  Even before emigration (which might, after all, furnish Greece with remittance payments), Greece had reached the point where 100 grandparents – today’s retirees – have roughly only 42 grandchildren.  The levels of productivity required of an economy to support that ratio of retirees to workers … well, the only country where it might work, I suppose, is Japan, provided they roboticize everything. So even after the bailouts, haircuts for creditors, and all else, the Greek economy would at best have a level of indebtedness that would tax an economy with a sizable, educated next generation, and functional public institutions.  And yet Shorto’s other interviews in the article – with the owner of a factory, and with the owner of a winery – exhibit much more optimism than one might have thought given the macro-problems, the riots and scenes of Athens burning.  I have doubts that the optimism is justified, partly from talking with several of my Greek LLM students, who are all looking to emigrate, but I’m sure Shorto is right in pointing to the immense variety of individually calibrated responses on the ground in Greece.

The response from the solvent part of the Eurozone at this point is mostly a shrug, based on a bet that Greece can be financially ring-fenced and that in any case, this is just throwing good money after bad.  Better that Greece leave the EZ, default, return to drachmas, whatever – the feeling at this moment, anyway, is that it won’t ripple onwards to the two key economies, Italy and Spain.  But I have questions about how easy it is within the EU actually to ring-fence Greece and its problems at the most human level.  After all, a large part of the EU’s point was to permit free movement within the EU, so to liberalize labor markets.  That’s one question – where are the emigrants from Greece planning to go to seek work?  Internal to the EU or beyond, Australia or the US or Canada?

A much bigger question, I suspect – I have not seen much written about this, but am pretty certain it is the subject of important private discussions within governments – is welfare migration internal to the EU.  Shorto’s reporting is focused on economic activity that is mostly within Greece – a exporting manufacturer whose basic raw material is Greek oak trees, and a small winery engaged in the export trade.  But there are many, many crucial things that have to come from outside of Greece, and they have to be paid for – presumably priced in euros or dollars.  When I shift away from the kind of activities that Shorto focuses on, and look instead at reporting on supplies in the Greek health system and state hospitals, it is easy to imagine the development of serious shortages of medicines and supplies, driven by a simple inability to pay for them.  At what point does it become a better idea for a retiree with health issues to move to a richer EU country?

I don’t know – as I often remark in these posts, I am not an expert in EU law, but think we need to talk more about the issues here.  So I would welcome informed or expert comments on the current condition of eligibility for welfare or social benefits, including medical care, internal to the EU at this point.  I’ve tried looking at some of this, but don’t count myself as expert, so I would welcome expert commentary.  And then this further question: suppose that welfare or medical migration is a serious possibility.  At what point does it become enough of a concern to Germany and other wealthy EU states to engage in Coasean bargaining and figure that it’s cheaper to pay Greeks to stay home? What is the current state of EU law on internal migration for work, on the one hand, and social benefits, on the other?  Is there any reason to believe that either of these two motives for internal migration could become sufficiently general to raise issues for the wealthier EU countries?

Update:  Thanks to Martin and EU Law Student in the comments for pointing us non-EU-law-experts to, first, the 2004 Free Movement Directive and, second, an article from 2006 by Kay Hailbronner on what development of the law of free movement and social benefits means in the EU.  To that let me add one additional resource – a new post, linking to useful documents in pdf, at EUtopia law blog, by Dr. Iyiola Solanke, on third country nationals, stationary Union citizens, and residency rights, including discussion of social benefits.  Again, I welcome informed comment on what this means in legal and practical terms for internal migration in time of economic crisis. And my thanks to Martin and others who  have commented.

Georgetown Symposium: Corporate Responsibility and the Alien Tort Statute

by Duncan Hollis

Just a quick note to flag an upcoming symposium at Georgetown Law on Corporate Responsibility under the Alien Tort Statute. It’s scheduled for all day March 27, 2012.  Here’s a quick description of the event:

Alien Tort Statute (ATS) litigation has emerged as a focal point in the field of corporate responsibility over the past decade, as foreign plaintiffs alleging violations of international law argue their cases in federal court.  For corporations doing business abroad, liability under this statute is controversial and has the potential for substantial effects on human rights outcomes, environmental effects, foreign investment and human development, and business practices in general. The Supreme Court will hear an Alien Tort Statute case this term, Kiobel v. Royal Dutch Petroleum, to consider the question of corporate liability under the statute.

This symposium, sponsored by the Georgetown Journal of International Law and the Center on Transnational Business and the Law, will provide a critical examination of the role of the Alien Tort Statute as it relates to corporate responsibility.  Diverse viewpoints will be well represented. The event will feature a Keynote Address by Donald Francis Donovan, Esq., Debevoise & Plimpton LL.P. and President-elect, American Society of International Law, and discussion from the following panelists: John Bellinger, Bradford Clark, William Casto, Vivian Curran, Bill Dodge, Jonathan Drimmer, Nicole Erb, Jodi Flowers, Jon Hacker, Ziad Haider, Kristin Myles, Bill Reinsch, Kirsten Sjovoll, Beth Stephens.

For more details, see the preliminary schedule here. The symposium is open to the public with registration on a first-come, first served basis.

U.S. Military and CIA Interventions Since WW II

by Kevin Jon Heller

A fascinating chart, courtesy of Juan Cole at Informed Comment:

I don’t have any grand political points to make — other than to point out that Canada better watch its back.

AlphaDogs, Cheetah-bots, and Mecha-Avatars

by Chris Borgen

Three quick updates from the “robots and warfare” side of things (largely culled from recent Danger Room posts that caught my eye and I wanted to point out to Opinio Juris readers).

I have previously posted about Big Dog, the four-legged beast of burden being developed for use by the U.S. military.  DARPA (the Defense Advanced Research Projects Agency) is now developing (along with Boston Dynamics) AlphaDog, the larger more advanced version of the robot. See this new video of AlphaDog walking around, carrying stuff. Getting closer to actual use in the field…

While the BigDog and AlphaDog videos are interesting for the weird, surreal sensation of watching something that sounds like a lawnmower but walks like a young horse, as a matter of international humanitarian law, they are probably not a big story in and of themselves in the same way that supply trucks are not a “big story” in regards to IHL. However, they do point to advances that may lead to new weapons systems at some point. Quadruped robotic hunters, perhaps running in packs, perhaps autonomous, have been hypothesized. I had previously referred to such robots using William Gibson’s term “slamhounds.” According to Danger Room, DARPA is now working to develop quadruped hunter robots, but is going for a different animal metaphor, calling the project “Cheetah.” Boston Dynamics, the developer of BigDog/ AphaDog, is running the Cheetah project.  Adam Rawnsley of Danger Room writes:

As the name implies, Cheetah is designed to be a four-legged robot with a flexible spine and articulated head (and potentially a tail) that runs faster than the fastest human. In addition to raw speed, Cheetah’s makers promise that it will have the agility to make tight turns so that it can “zigzag to chase and evade” and be able to stop on a dime.

This does have IHL implications.  Its not clear whether the cheetah-bot will be remotely-controlled, in which case the legal issues will be akin to those of UAV’s, or will detect, hunt, and possibly attack autonomously.  That latter issue brings up the knottier question of how you code IHL parameters into software and what types of liability ensues when something goes wrong.

But here’s the piece de resistance, DARPA has

allotted $7 million for a project titled “Avatar.” The project’s ultimate goal, not surprisingly, sounds a lot like the plot of the same-named (but much more expensive) flick.

According [to] the agency, “the Avatar program will develop interfaces and algorithms to enable a soldier to effectively partner with a semi-autonomous bi-pedal machine and allow it to act as the soldier’s surrogate.”

These robots should be smart and agile enough to do the dirty work of war, Darpa notes. That includes the “room clearing, sentry control [and] combat casualty recovery.” And all at the bidding of their human partner.

[Emphasis added.]

You can place a Terminator or Avatar joke here (two James Cameron movies, huh), but I think this is a better film metaphor (and it’s by “District 9 ” director Neill Blomkamp).

So, while these mecha-avatars will not be autonomous, they will be remotely-controlled armed bipedal drones. As a legal matter, one could say that this is similar to our current use of UAV’s.  But I don’t think so. These things would be interacting with humans in close-up situations (“room clearing”) but the operators, perhaps half a world away, would be physically and possibly emotionally removed from the situation.  Cues might be missed. How do instincts translate via a video-link?  The possibility for increased loss of life is very real. This is one development I will want to track.

From War to Crime: Law Enforcement and Next Steps in Afghanistan

by Chris Borgen

Wired’s Danger Room has a new piece about law enforcement reform and efforts to stabilize Afghanistan. In particular, it focuses on the work of U.S. and Romanian Special Operations Forces in training Afghan law enforcement.

Behind the scenes across the embattled country, a special breed of U.S. soldier is working closely with a new style of Afghan police to enforce law and order in Afghanistan’s lawless countryside. They’re trying to defeat the insurgency by treating it like a criminal problem rather than a military one. And they’re planned to be at it even after the International Security Assistance Force’s conventional troops leave Afghanistan by the end of 2014.

In that sense, the trial was a possible preview of the Afghanistan War, post-2014. If the Laghman case is any indication, the conflict will be increasingly characterized by risky police raids, delicate legal action and small numbers of highly trained U.S. troops quietly applying pressure at key moments to ensure the rule of law triumphs over chaos.

It’s not so much that Afghanistan has transitioned into a post-conflict state. The issue seems to be whether the form of the conflict can somehow be shaped by the Afghan government (and our) responses to it. The article is less about the stuff that people often focus on when thinking about SpecOps, night raids, parachute jumps, and so on, and more about managerial, curricular, and training reform:

Tom — tall, lean, bald-headed, born in London, but raised in upstate New York — assumed responsibility for his then-20-strong Provincial Response Company in August. His first move: totally revamp the company, everything from its leadership and uniforms to the training syllabus the Afghan Ministry of Interior had provided them.

In reforming the Laghman special police all on their own, Tom and his fellow commandos might have broken a few rules. That’s not unusual. Special Forces are selected for their intelligence and initiative. Their bosses expect to abide by the spirit of the regulations rather than the letter. “I am given the autonomy to attack the problem as I see fit,” Tom says.

A 26-year-old Romanian officer attached to Tom’s team — let’s call him “Abel” — had spent several years teaching at the Romanian military academy before deploying to Afghanistan. One look at the Interior Ministry’s leadership curriculum, and Abel, a slight man with dark hair and a boyish face, knew he had to start from scratch with new lessons. The Interior Ministry stuff “didn’t look professional,” Abel says. The cops’ typical approach to solving problems: wing it, and hope for the best.

If the PRC were going to be able to execute warrants, gather evidence and help guide prosecutions, they needed to be capable of long-range planning. Abel started by charting out basic decision-making processes and writing lesson plans teaching each step.

Looking beyond the curriculum, Abel says he saw other leadership problems…

Check out the full post; it addresses issues ranging from training, to uniforms and status, to curriculum, to what happens when these new patrols actually “hit the streets,” and after. It is well worth the read.

Chevron Strikes Back

by Julian Ku

Chevron strikes back, and the pro-Ecuador NGOs are not happy about it.

WASHINGTON, Feb. 17, 2012 /PRNewswire via COMTEX/ — An “order” issued Thursday from a private investor arbitration panel purporting to freeze a nine-year environmental litigation against Chevron in Ecuador violates international law and will have little or no impact on any potential enforcement action against the oil giant in countries around the world, said representatives of the plaintiffs.

The latest move by the three-person investor arbitration panel, issued after a secret, closed-door hearing over the weekend that barred the rainforest communities of Ecuador from appearing, ordered Ecuador’s government to take “all necessary steps” to block enforcement of an $18 billion judgment against Chevron that was affirmed on appeal in early January following a nine-year civil trial, according to a source in the American law firm Winston & Strawn, which represents Ecuador’s government.

Interestingly, advocates seem to be demanding that Ecuador follow its own constitution instead of its obligations under international law.  They declare that the tribunal’s award “violates” international law, but what does that mean? The Tribunal was improperly constituted?  I think this next argument reflects their real thinking on this question.

“This arbitration panel has just lost the last remnants of its legitimacy by trying to order a sovereign nation to violate its own Constitution and quash the legal claims of citizens who are literally dying off in the rainforest due to Chevron’s pollution,” said Karen Hinton, the U.S. spokesperson for the 30,000 Ecuadorians who won the judgment against the oil giant.

I realize these NGOs are concerned with policy not law, but I wonder how many defenders of Ecuador will make similar “sovereigntist” arguments?

American Bar Association’s 7th Annual Homeland Security Law Institute

by Julian Ku

[Vince Vitowsky has asked me to post this announcement from Joe D. Whitley about an upcoming ABA two-day event that might interest readers.]

Thursday, March 22, 2012-Friday, March 23, 2012

Capital Hilton
1001 16th Street NW
Washington, District of Columbia, United States 20036

As Program Chair and Vice-Chair of the American Bar Association’s Administrative Law and Regulatory Practice Section, I would like to invite you to attend the 7th Annual Homeland Security Law Institute.

We are honored to have with us this year Former U.S. Attorney General Michael Mukasey, Former DHS Secretary Michael Chertoff together with Former CIA Director General Michael Hayden, Assistant Secretary to International Affairs and Chief Diplomatic Officer to DHS the Honorable Alan Bersin, and James (Jim) Carafano from The Heritage Foundation as our Keynote Speakers.

I am confident the Homeland Security Law Institute will be an invaluable resource for your practice. The content of our program, materials provided to our attendees and the insightful and informative discussions from our faculty experts in the field of Homeland Security make this program a tremendous success year after year.

This seminar qualifies for 13 CLE hours.

For more information and online registration, please visit
http://www.americanbar.org

With best regards,
Joe D. Whitley

Virginia Journal of International Law Launches VJIL Digest

by Julian Ku

[The good folks at VJIL asked that I pass the following announcement along]

Now in its fifty-second year, the Virginia Journal of International Law is the oldest continuously published, student-edited law journal in the United States. The Journal addresses issues such as international commercial transactions, trade law, international litigation and arbitration, international organizations, international human rights law, and comparative law.

The Virginia Journal of International Law is now expanding its scholarship through the launch of its online companion, the Virginia Journal of International Law Digest (VJIL Digest). VJIL Digest seeks to sharpen the focus of the Virginia Journal of International Law by publishing concise articles analyzing emerging issues.

Because of its easily-accessible format, VJIL Digest will be particularly useful to practitioners and scholars alike. VJIL Digest has recently published manuscripts from the following scholars and practitioners:

Professor Kenneth Anderson, Professor of Law, Washington College of Law, American University; Non-Resident Visiting Fellow Brookings Institution (Governance Studies)
Dr. Tariq Hassan, Attorney, Supreme Court of Pakistan; Former Chairman, SEC of Pakistan; Former Senior Counsel, World Bank
Dr. Chibli Mallat, Visiting Professor of Islamic Legal Studies, Harvard Law School, Presidential Professor of Law & Professor of Middle Eastern Law and Politics University, Utah College of Law

VJIL Digest welcomes submissions of roughly 3,500 words, lightly footnoted. Submissions may be sent to vjilonline [at] vjil [dot] org. I invite you to visit the Digest’s website at http://www.vjil.org/vjil-online or to contact me with any questions. Thank you, in advance, for your submission.

Conspiracy and the New Hamdan Argument

by Jens David Ohlin

Cross-posted at LieberCode.

I have written before about the Government’s new position in the Hamdan case.  As you will recall, Hamdan was convicted by a military commission for providing material support, sentenced to five and a half years, and released for time served.  He is now appealing his conviction.

The latest government brief before the D.C. Circuit represents a significant change in theory regarding the justification for military commissions.  In the past, it was widely assumed that Congressional enactment of the Military Commissions Act was based on their constitutional power to define and punish violations against the law of nations.  Now the administration is adding an additional basis: the power to punish offenses traditionally tried before military commissions pursuant the U.S. common law of war.  This power stems from the penumbra of Congress’ war-making powers in Article I.

There are a lot of implications to the new analysis, not all of which I have fully digested yet.  Under the Define and Punish Clause, Congress is assumed to be tying itself to an evolving body of law – international law – whose content is increasingly complex, sophisticated, and refined.  In contrast, the new penumbral argument ties the Congressional power to a largely static body of law – military commission law – because for the most part the United States didn’t use military commissions between the end of World War II and 9/11.  Furthermore, many of the World War II military commission cases like Quirin predate the Geneva Convention, Common Article 3, and all of the great advancements of international criminal law.  So the new theory feels a lot like getting into a time machine and emerging with the law of war as it exists in 1945 (or even during the Civil War), not as it exists today.

Aside from the exact status of this “U.S. common law of war” – a term that I am a bit skeptical about — I want to raise another issue here, and that’s the status of conspiracy as an inchoate offense under this new theory.

In the original Hamdan case, a four-justice plurality concluded that conspiracy was not a violation of the law of nations and therefore could not be prosecuted before a military commission.  Kennedy joined the plurality as to the final outcome of the case but did not join the conspiracy section of the opinion.  This left the status of conspiracy in some question, especially given the recent changes in the Supreme Court’s composition.

However, if the D.C. Circuit or the Supreme Court were to adopt the government’s new theory of military commissions, I think the crime of conspiracy would definitely withstand judicial scrutiny.  In fact, it would be a much easier argument.  Under the government’s proposed structure, the question is whether there is significant precedent under U.S. law for punishing certain crimes before a military commission during wartime.  In contrast, the problem with conspiracy according to the Hamdan four-justice plurality was that it had been largely rejected at Nuremberg and subsequent international conventions and tribunals (with the exception of conspiracy to commit genocide).  Under the new scheme, however, the international angle would be completely off the table.  Conspiracy’s status as a distinctively common law criminal concept would no longer be fatal to its application at a military commission.  In fact, conspiracy’s deep roots in the common law might even be an asset under the new analysis.

Unfortunately, the D.C. Circuit Hamdan case won’t deal with conspiracy directly, since he was acquitted of that charge and it is therefore not on appeal.  But I would think that another case down the pipeline will certainly address this question.


Bleg: What Is EU Law on Greece (Possibly) Leaving the Eurozone?

by Kenneth Anderson

One issue I don’t understand in the Greece-Eurozone crisis is the legal basis on which Greece can either be forced out of the Eurozone, or else can leave it voluntarily.  I’d be grateful if someone knowledgeable could explain in the comments, and give the relevant treaty references, for how the process works.  One reason I ask is that I thought I understood a year or so ago that leaving, voluntarily or involuntarily, was legally not quite as easy as many finance and economics folks seemed to think – entry was deliberately constructed on a one way door.  But maybe I just didn’t understand how the treaty law works.  So if someone could point to the legal process, even if it is just “by agreement of the parties,” I would be grateful.

The other question that arises here is why it’s a question.  I suppose there are two possible scenarios.  One is that Greece is ejected (whatever legally that means in the circumstances) but does not want to go.  Perhaps its citizens realize that they don’t want to lose their euros, or for whatever reason.  But France and Germany have had enough, and bring others with them in the Eurozone.  If Greece objects, what can it do legally?  Can it bring a case in, for example, the ECJ?

Alternatively, suppose that Greece takes the heavy-handed hint and agrees to exit, perhaps in exchange for some semi-golden parachute.  But perhaps Portugal or some other weak EZ country sees in this a precedent for getting kicked out itself down the road – other countries, for whatever diverse reasons, want to ensure that the EZ remains a one-way zone, once in, forever in.  Would one of them have the ability to bring a case in the ECJ or elsewhere, and on what grounds?  Or is all this juridically water under the bridge, because legally the situation is merely whatever the countries agree to?

Vacancy: ICJ Law Clerks

by Kevin Jon Heller

The ICJ has asked us to post the following job announcement for law clerks at the ICJ — which are, needless to say, among the very best positions available to a young international lawyer.

Vacancy announcement

Date of issuance: 8 February 2012
Deadline for applications: 10 April 2012
Post title: Law Clerk to Judges of the Court (Associate Legal Officer) (2 positions)
Grade: P-2
Vacancy Announcement Number: 2012-02
Duty Station: International Court of Justice, The Hague, Netherlands
Organizational unit: Department of Legal Matters
Indicative minimum net annual remuneration (including post adjustment):
At single rate: 54,516 Euro
At dependency rate: 58,122 Euro
Length of Appointment: Two years fixed-term, renewable once for a second two-year period

Background:

The International Court of Justice wishes to appoint 2 Law Clerks each of whom will provide research and other legal assistance to one of the judges of the Court.  For administrative purposes, the Law Clerks are attached to the Department of Legal Matters.

Function:

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

Qualifications and skills:

An advanced university degree in law, with significant academic background in public international law or professional experience in the field.  A first level university degree in combination with qualifying experience may be accepted in lieu of an advanced university degree.  Post-graduate studies in public international law would be an asset; two years’ experience in the settlement of international legal disputes with an international organization, government, law firm or other private sector entity would be desirable.

Languages:

French and English are the official and working languages of the Court.  Perfect understanding and command of either French or English, and very good drafting and oral communication skills in the other language required; command of other official languages of the United Nations would be an asset.

Remuneration:

Depending on professional background, experience and family situation, a competitive compensation and benefits package is offered.

The Court’s salaries are calculated in US dollars but paid in euros.  They consist of a basic salary and a post adjustment which reflects the cost of living in the Netherlands and the euro/dollar exchange rate.

In addition, the Court offers an attractive benefits package including 30 days of annual leave, home travel every two years, an education grant for dependent children, a pension plan and medical insurance.

Please note that applications received after the deadline will not be accepted.

How to apply:

Applicants are required to complete a United Nations Personal History Form (P.11), and to submit a cover letter. Applicants are specifically requested to indicate the level of attainment achieved (e.g. class of degree, GPA, mark awarded, or position in overall ranking) in respect of any university or professional qualification obtained.  If the relevant university or authority does not make such information available, that fact should be stated.

All applicants are strongly encouraged to send their application by e‑mail, addressed to the Registrar of the Court, clearly indicating the vacancy announcement number.

E‑mail:  recrutement‑recruitment@icj‑cij.org
Fax:  +31 70 364 99 28

Only applications from candidates under serious consideration will be acknowledged. Applications that are found by the Court to meet the above criteria may be added to a reserve list in case a similar vacancy arises in the future.

The Registrar reserves the right not to appoint any candidate to the post, or to appoint one at a lower level or on the basis of a modified description.

Those interested in applying should refer to the ICJ website here, in case any changes have been made to the job description.

Syria and the Overlapping Consensus

by Jens David Ohlin

Cross-posted at LieberCode.

David Rieff has an interesting – and somewhat polemical – article in the latest Foreign Policy.  Rieff, you will recall, was an early supporter of intervention, a policy position no doubt influenced by his time spent in Bosnia which culminated in Slaughterhouse: Bosnia and the Failure of the West.

Although initially hawkish on intervention, and willing to support liberal interventionism in Iraq, Rieff had a change of heart after the Iraq war failed to achieve any liberal goals.  Not only did Rieff renounce the Iraq war, but he also went further and started renouncing the liberal interventionism that he once championed.

These debates are always about historical comparisons and parallels. Which ones are correct and which ones are wrong?  Was Iraq more like Vietnam (intervention not OK) or more like World War II (intervention permitted or even required)?  Was Libya more like Kosovo or Iraq?  And is Syria more like Kosovo or Iraq?

Rieff does a number of things in this article.  First, he points out the lack of concrete and impartial information on the ground in Syria.  He is also particularly concerned about the possibility of Islamic extremists and terrorists among the rebels; on this score he is channeling the recently departed Christopher Hitchens.  Finally, he wants to throw a cautionary wrench into the interventionist assumption that unilateral interventions will make matters better, not worse:

During the Bush administration, Democrats often boasted that — unlike the president and his aides, who were consumed by millenarian dreams of remaking the Middle East in the image of American democracy — they were part of the “reality-based community.” In fact, the neoconservatives were paragons of modesty compared with the liberal interventionists and R2P supporters who saw in Libya and now see in Syria the chance to move one step closer to remaking the world in the image of the human rights movement. Infatuated by their own good intentions — and persuaded that their interventionist views incarnate a higher morality — those who view Libya as a triumph and Syria as an opportunity to cement the practice of humanitarian intervention are in full crusading mode. If the looming victory of the Taliban in Afghanistan, the failure of the democratic project in Iraq, and the fact that the most significant political outcomes of the Arab Spring in Egypt, Yemen, and Libya have been instability and the victory of political Islam have not chastened them — and clearly they haven’t — nothing will. Welcome to the second decade in a row of humanitarian war.

I don’t necessarily agree with what Rieff is saying, but I do worry about the possibility of an overlapping consensus supporting intervention.  On the one hand, some people support foreign interventions because they are necessary to stop extremism – think of Hitchens on Iraq or Afghanistan.  Liberals, on the other hand, support intervention under R2P or just a general belief that innocent victims ought to be protected, as they were in Kosovo, or as they should have been (but weren’t) in Rwanda.

The danger, of course, is that such an overlapping consensus is rather thin, i.e. it doesn’t go very deep, and disagreements about the conduct of the war will then be exposed.  That’s one reading of what happened with Iraq.  Neo-conservatives supported the war, as did some prominent liberal interventionists on the theory that what we really needed to do was protect the Kurds and other ethnic groups from Saddam’s rule.  But when it became clear that we were failing to significantly protect the civilian population and provide adequate security, that liberal support started to vanish.  But at that point it was too late.

Apple and Human Rights: Could the Market Work?

by Peter Spiro

For those of you no longer getting the New York Times in print, this was the lead story in today’s paper.  (Somewhat weirdly, it shows up on the webpage as a blog post.)  Apple’s signing on to Fair Labor Association standards and auditing is probably the biggest thing ever to happen in the world of private, rights-related codes of conduct.  This could be a major test case for the efficacy and legitimacy of non-governmental rights regimes.

The risk is that it ends up looking rigged.

“The problem with the F.L.A. is that it lives by rules set up by the companies itself,” said Mr. Lezhnev of the Enough Project. “Real transparency will transform the electronics industry. But if it’s just a whitewash, I’m not sure how much will change.”

(See this story, also today, on the Sierra Club and big money from natural gas companies.)

I’m guardedly optimistic.  The FLA board may include industry representatives, but it also has also people like Jim Silk (Yale’s Schell Center) and Meg Roggensack of Human Rights First. Matching its profile, Apple’s recent human rights dramas are getting a huge amount of attention.  I don’t think the FLA or anyone else is going to be able to sweep big problems under the rug.  We’ll end up with others NGOs keeping close tabs on the FLA, in a dynamic of competitive legitimacy.  Not everyone will be pleased with the audit process or results, but if they pass muster with the major human rights groups, that should prove their value.  Apple is feeling the heat from consumers; with the Jobs magic no more, they’ll have to play ball.  In the global economy, consumers have power.

In any case, there’s no real alternative.  Governments just aren’t up to this kind of global regulation anymore – China’s got little incentive, and the US and others lack the capacity (as if even in ideal circumstances public regulation is seamless and free of corruption!).  Public international regimes are too immature, though they may in the long run emerge as host to these standards.

In the meantime, following Apple’s lead, there will be pressure on other electronics giants to sign on. We might witness a kind of cascade in which the codes achieve the sort of refinement (see the FLA code and accompanying “benchmarks” here) and higher profile that makes them look and feel more like law.

Conference on Forensic Evidence in the Fight Against Torture

by Kenneth Anderson

If you are around Washington DC this week on Wednesday and Thursday, you might want to (advance) register and attend a major human rights conference at my school, Washington College of Law, American University, “Forensic Evidence in the Fight Against Torture.” My law school’s dean, Claudio Grossman, is a major figure in UN and regional human rights bodies, and is currently chair of the UN Committee Against Torture.  My old friend and colleague, visiting professor Juan Mendez, equally a major figure in UN and regional bodies, is the UN special rapporteur on torture.  (My faculty pretty much staffs several of the leading UN and regional human rights agencies, I am pleased to note.)  This is shaping up as a major conference with participation from leading experts and specialists, and over 150 attendees; there is no charge, but registration online is required.

Dan Joyner: Why I Won’t Attend the Jessup Competition Again

by Kevin Jon Heller

[The following is a guest post by Dan Joyner, Professor of Law at the University of Alabama.  Our thanks to him for contributing it.]

So, as you probably guessed from the title of this post, it’s going to be a bit of a rant. But this has been festering inside me for the past five years and I want to get it out.  I’m on a plane right now flying back from the U.S. Midwest Regional of the Jessup International Law Moot Court competition in Chicago with my team.  I’ve been the faculty advisor for the Jessup team at Alabama for the past five years. During that time, my team has competed in Miami, Houston, and Chicago, as well as in the international rounds in D.C.  I’ve gone with my team every year to each one of these venues. So I’ve seen a lot of the Jessup process, in a number of different venues in the U.S., and I’ve put in A LOT of my own time coaching my team and travelling with them. And here I mean A LOT of my own time. Many, many hours advising them as they research their memorials, then three to four per week oralist round practice sessions in the lead up to the regional.

I have noticed over the years that, at least at the regional locations we’ve been in, not many of my international law faculty colleagues have accompanied their teams as I have done. Some have, to be sure. But more often than not, their students are either there by themselves, or they are accompanied by a non-faculty team coach.  And in my anecdotal conversations with students from other schools’ teams, it is usually the case that they have not been coached seriously by the international law faculty members at their law school. I now think that these faculty colleagues in international law at other schools have been much wiser than I have in this regard.

I have learned over the past five years through sorely frustrating experience that the Jessup competition is not in fact an international law moot court competition, notwithstanding this being stated in its name. This is, in fact, simply false advertising for the competition. In reality, Jessup is just another law student moot court competition in which style trumps substance, and where good used car salesmen typically come out on top.  As such, the Jessup competition is simply not worth any serious investment of time by those of us who actually care about the substance, rigor and correctness of international legal analysis and argumentation. Frankly, sometimes I think my students could be citing to sources of Kryptonian law, and if they did so confidently and persuasively, they would be just as well off.

The clearest evidence for this conclusion is that if, counterfactually, the Jessup competition was in fact about international law, then it would be staffed by memorial and oralist round judges who themselves had a decent knowledge of international law. In my experience at all of the regional rounds in the U.S. at which my team has participated over the past five years, this has definitely not been the case…

A Response to Dapo Akande — Part I

by Kevin Jon Heller

My friend Dapo Akande takes me to task today at EJIL: Talk! for my position on drone strikes directed at combatants attending a funeral or helping the wounded.  I will address his curious reluctance to address the text of the Rome Statute in Part II of my response; in this post, I want to address his arguments concerning IHL.  Here are the key paragraphs:

First of all, Article 51(2) which prohibits attacks on the civilian population and individual civilians does not simply prohibits attacks but rather makes it illegal to make civilians and the civilian population “the object of the attack”. To me this emphasises that what is at issue is the question of who the attacker wishes to affect, who he is aiming his attack at. It seems to me that in the scenario under discussion, where the aim is simply to kill the combatant, it is the combatant that is the object of the attack. The civilians are not. The use of the words “as such” after civilian population in Art. 51(2) AP II also suggests that a violation would require that the attacker wishes to target the civilian population, knowing that they are a civilian population and making them a part of his objectives. Indeed, the ICRC commentary to the provision states that:

“By using the words ‘directed’ and ‘as such’ it emphasizes that the population must never be used as a target or as a tactical objective.”

[snip]

Secondly, if one were to adopt the Kevin’s approach it is difficult to see what meaningful role the principle of proportionality would play in the context of attacks against people. If it is ipso facto unlawful (under the principle of distinction) to launch attacks against groups of people, the vast majority of whom are civilian but which also include combatants, then we don’t need the principle of proportionality  when considering attacks against persons. We would only analyse proportionality when considering attacks against objects. However, this is not only contrary to received wisdom but also seems contrary to the structure of API where the proportionality principle is included in Art. 51 (which deals with attacks against civilians and the civilian populations ) and not in Art. 52 (which deals with attacks against civilian objects).

To begin with, it should be pointed out that Dapo is misstating my claim in the previous post.  I did not claim that it is “ipso facto” unlawful to attack civilian populations, which implies that I believe the mens rea of attacking a civilian population is strict liability.  On the contrary, I argued that, under the Rome Statute, the civilianness of a civilian population can be understood only as a circumstance element, which means that a perpetrator has the necessary mens rea for the war crime of intentionally attacking a civilian population only insofar as he acts with the “awareness that [the] circumstance exists.”  That is a very exacting standard; a perpetrator has the necessary awareness only if he is “virtually certain” concerning the existence of the circumstance.  In terms of attacks on a civilian population, therefore, a perpetrator would not violate the principle of distinction if he (1) did not consider whether his target was among a civilian population; (2) believed that his target was not among a civilian population; (3) only suspected that his target was among a civilian population; or (4) believed but was not completely convinced that his target was among a civilian population.  Moreover, there will be a wide variety of situations in which the presence of combatants in a civilian population does deprive the population of its civilian status, such as where combatants are using a civilian population as human shields.  (There is a reason why the ICTY has emphasized that Article 50(3) has particular application when combatants are among civilians for non-military reasons, such as visiting family on leave.)  In all of those situations, the perpetrator’s attack would be subject only to the principle of proportionality.

Dapo also — and more problematically — ignores the provision on which my previous post focused: Article 85(3), the grave-breach provision of AP I.  Here is the relevant text (emphasis mine)…

NBC: Israel and MEK Responsible for Murdering Iranian Scientists

by Kevin Jon Heller

That’s the conclusion drawn in this blockbuster report — which, precisely because it is a blockbuster that makes Israel and the MEK’s vast number of Democratic and Republican supporters in the U.S. look bad, has been basically ignored in the “liberal” media:

Deadly attacks on Iranian nuclear scientists are being carried out by an Iranian dissident group that is financed, trained and armed by Israel’s secret service, U.S. officials tell NBC News, confirming charges leveled by Iran’s leaders.

The group, the People’s Mujahedin of Iran, has long been designated as a terrorist group by the United States, accused of killing American servicemen and contractors in the 1970s and supporting the takeover of the U.S. Embassy in Tehran before breaking with the Iranian mullahs in 1980.

The attacks, which have killed five Iranian nuclear scientists since 2007 and may have destroyed a missile research and development site, have been carried out in dramatic fashion, with motorcycle-borne assailants often attaching small magnetic bombs to the exterior of the victims’ cars.

U.S. officials, speaking on condition of anonymity, said the Obama administration is aware of the assassination campaign but has no direct involvement.

[snip]

Two senior U.S. officials confirmed for NBC News  the MEK’s role in the assassinations, with one senior official saying, “All your inclinations are correct.” A third official would not confirm or deny the relationship, saying only, “It hasn’t been clearly confirmed yet.”  All the officials denied any U.S. involvement in the assassinations.

As it has in the past, Israel’s Foreign Ministry declined comment. Said a spokesman, “As long as we can’t see all the evidence being claimed by NBC, the Foreign Ministry won’t react to every gossip and report being published worldwide.”

I could ramble on about the implications of the report, particularly how in a rational world it should complicate efforts by the MEK’s U.S. friends to have the MEK de-listed as a terror organization, but I’ll just point readers to Glenn Greenwald’s post yesterday, in which he discusses those implications in detail.  (Yes, dear readers, we can use his name on this blog.  He is only “He Who Must Not Be Named” over at Lawfare.)

I do, however, want to comment on something Daniel Byman, a professor at Georgetown and fellow at Brookings, said about whether Israel’s actions can be considered terrorism.  He told NBC that, “[i]n theory, states cannot be terrorist, but if they hire locals to do assassinations, that would be state sponsorship.”  As I explained in an earlier post, that claim is overbroad.  Under the Terrorist Bombing Convention, “states cannot be terrorist” only insofar as bombings are conducted by the “military forces” of a state; bombings conducted by a civilian intelligence service such as the Mossad are not excluded from the Convention’s definition of terrorism.  So yes, the Mossad’s actions in using MEK to kill the Iranian nuclear scientists qualify as terrorism.

Syria, Intervention, and Recognition

by Jens David Ohlin

Cross-posted at LieberCode.

It is becoming increasingly likely that Russia and China are going to block just about any resolution on Syria coming out of the Security Council, regardless of whether it is meaningful or not.  They aren’t going to support a resolution that seriously denounces the regime, nor are they going to support an ICC referral, I believe.  And they definitely will veto any resolution that authorizes military action in Syria.

Consequently, people are starting to talk about recognizing the rebels in Syria as the legitimate government of Syria.  That’s something that also happened during the Libyan conflict, although the move was only of marginal significance to the legal argument.  The Security Council voted to authorize military action in Libya pursuant to its Chapter VII authority, so Libya wasn’t really a case of unilateral humanitarian intervention.  True, Russia and China complained that NATO far exceeded its Security Council mandate to protect the civilian population and pursued regime change ultra vires.  But that complaint aside, which strikes me as a bit of posturing, the infringement of Libya’s sovereignty was authorized by the Security Council.

Since the Security Council is not likely to pass a similar resolution regarding Syria, the recognition strategy is more pressing.  If the rebels have some political structure, and that structure can be recognized as the legitimate government of the Syria people, then any outside military support would be by invitation only, and therefore not an infringement of Syrian sovereignty.  Under this view, there would be no violation of Article 2 of the U.N. Charter, so it would not need to be justified by either Article 51 or a Security Council Chapter VII authorization.

There are two options to this strategy.  Under option one, recognition is combined with a secession claim, and the rebels are deemed to be the rulers of some newly sovereign sub-set of the Syrian territory.  Under option two, recognition is the only claim and the new government is considered the legitimate rulers of Syria proper.

What interests me is if this does indeed happen in Syria, will it set the stage for a general strategy to solve the humanitarian intervention quandary?  In other words, can the recognition strategy be universalized?  Isn’t it the case that in most situations one can find some council, committee, or “parliament” – or any collective group at all — and anoint them as legitimate rulers?  Could someone justify military action against China by recognizing the ROC in Taiwan as the true leaders of China?  (The ROC once ruled mainland China too but lost a civil war to the PRC).

Of course, it would be an exaggeration to suggest that there is no law that could serve as a limiting principle here.  There is the Effective Control test, the Montevideo Convention, the EC principles, the Declaratory View, etc., all of which purport to establish criteria for when a country exists and who its government might be.  With regard to the Effective Control test, it might be said that neither the rebels nor the Assad government have effective control over the territory at the moment (or put another way, they both have effective control at the same time if such a thing is possible).  But I think the take-away from the Kosovo decision at the ICJ is that there is less positive law in this area than one might hope (one reason for the court interpreting that case so narrowly).

That being said, the interesting question about the recognition strategy is whether it’s an impermissible workaround of the Charter scheme. If it can be universalized, does that suggest that it is a reductio ad absurdum?

Harold Koh’s Keynote Speech at University of Virginia

by Roger Alford

Harold Koh’s keynote address today at the University of Virginia conference did a nice job surveying the legal landscape from the Legal Adviser’s perspective. He divided the conflicts into four categories: non-conflicts, soft conflicts, hard conflicts, and hardest conflicts. He then outlined specific examples in his daily docket that fall into each category. Details on the speech will be published in a forthcoming VJIL symposium issue.

Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1990 when he was 36) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

As for the second, anyone who has ever worked in a law firm, clerked for a judge, or represented a client should understand what Koh is saying. As a lawyer one makes credible arguments that further the interests of the client, but does not stray from one’s own sense of propriety. The voice of an academic, by contrast, is completely different. For an academic who has never tried to speak on behalf of a client—who has never sought to further a client’s interests within the bounds of acceptable argument—the distinction between advocate and academic may be an alien concept. As an academic he can bemoan the fact that the President almost always wins. As an advocate, his goal is to ensure that the President almost always wins.

As for the third, it is quite plausible that Koh’s views on certain matters may have changed over the course of thirty years. Indeed, one would hope that extensive time in senior government positions would temper one’s academic convictions. Some ideas are abandoned with age and exploration. For any serious academic, intellectual honesty should allow for the possibility of both consistency and correction. On this score, I think that we should suspend judgment until Koh returns to academic life full-time and he can either reconcile his past positions with his currents ones, or failing that, he can fully articulate why and how his views on certain critical questions may have changed in the crucible of public service.

UPDATE: Ken Anderson and Paul Rosenzweig have further thoughts on Koh’s speech here and here. I agree completely with what both say about Koh’s fiduciary duty and duty of loyalty. Ben Wittes agrees as well, but notes that Koh did not apply the same standard to lawyers in the Bush Administration.

International Labor Organization Rules Against Moreno-Ocampo (Again)

by Kevin Jon Heller

The case involves Luis Moreno-Ocampo’s decision to remove Ekkehard Witkopf, then a Senior Trial Lawyer with the OTP, from Lubanga.  The following paragraphs from the ILO’s judgment best summarize what happened:

On 15 December 2008 the Deputy Prosecutor informed  the  complainant orally that the Executive Committee had decided that he would no longer lead the trial of the Lubanga case on which he had been working since he joined the Court in 2004. Having asked for explanations, the complainant met with the Prosecutor and the Deputy Prosecutor later that day. The Prosecutor told him that the Executive Committee no longer trusted him to present the position of the Office of the Prosecutor in the Lubanga trial. He added that the decision to remove him from the case was final. The three of them met again the following day and agreed that the Executive Committee would inform the members of the team working on the Lubanga trial that the Deputy Prosecutor would replace the complainant and lead the team and that the complainant would inform the victims and the defence counsel. The minutes of that meeting, which they signed on 16 December, indicate that they also agreed that the Human Resources Section would be tasked to find a solution to ensure that the complainant receive adequate compensation for all the extra hours he had worked during the last four and a half years. On 17 December 2008 the decision to remove the complainant from the Lubanga case was reported in an international newspaper. Thereafter, there were several meetings and exchanges of e-mails between the complainant and the Deputy Prosecutor regarding the Executive Committee’s decision, the handover of the Lubanga case and the complainant’s next assignment. By an e-mail of 11 February 2009 the Deputy Prosecutor notified the complainant that he was assigned to another case, the “Uganda case”, as a Senior Trial Lawyer.

The complainant wrote to the Secretary of the Appeals Board on 13 February 2009 requesting a review of the decision to take him off the Lubanga case…

Since the Security Council Won’t Act, Send in the ICC?

by Julian Ku

Matters in Syria are going from bad to worse.  I am sure this won’t do any harm, but it is not going to help either.  It will simply give the illusion that the international community is dong something about Syria.

Syrian officials suspected of committing or ordering crimes against humanity should face prosecution in the International Criminal Court (ICC), the United Nations human rights office said on Friday.

“We believe, and we’ve said it and we’ll keep repeating it, that the case of Syria belongs in the International Criminal Court. This would give a very, very strong message to those running the show,” Rupert Colville, spokesman for U.N. High Commissioner for Human Rights Navi Pillay, told a news briefing.

I suppose there is some possibility that China and Russia would allow an ICC investigation (Syria is not a state-party to the ICC) even as they oppose a more powerful UNSC resolution.  But it hardly seems likely. And there is almost no chance, in my view, that such an investigation would make a meaningful difference to a brutal dictator, and regime, desperate to hold on to power.  Sadly, the most likely outcome is more hand-wringing at Turtle Bay and more massacres in Homs.

Did the IPCC Screw Up Climate Change Policy?

by Julian Ku

I found this interview in Der Spiegel of Fritz Vahrenholt, a German renewable energy executive and a former Social Democratic Party figure fascinating since he doesn’t fit the profile of most climate change skeptics.  Varenholt has a new book coming out, “Die Kalte Sonne” (The Cold Sun), rejecting the IPCC’s global warming models and climate change predictions.

I don’t know what to make of his scientific criticisms of the IPCC models. According to the interview, IPCC models haven’t explained why global temperatures have declined over the last 14 years and have completely ignored the effect of solar activity on global temperatures. It sounds plausible, but what do I know?

I find more interesting his criticism of the IPCC process and how it has lost credibility by making maximalist claims (CO2 causes all climate change and will raise global temperatures by 2 degrees) that it didn’t need to and that undermine its credibilty.

SPIEGEL: Do you seriously believe that all 2,000 scientists involved in the IPCC are deluded or staying true to the official line?

Vahrenholt: It’s not like that. However, I am critical of the role played by the handful of lead authors who take on the final editing of the report. They claim that they are using 18,000 publications evaluated by their peers. But 5,000 of them are so-called gray literature, which are not peer-reviewed sources. These mistakes come out in the end, just like the absurd claim that there will no longer be any glaciers in the Himalayas in 30 years. Such exaggerations don’t surprise me. Of the 34 supposedly independent members who write the synthesis report for politicians, almost a third are associated with environmental organizations like Greenpeace or the WWF. Strange, isn’t it?

The scientific character of the IPCC gives it great credibility and authority.  But it is worth remembering that, like all organizations, the IPCC can be influenced by interest groups. In other words, just because they are scientists, and just because it is an international organization, doesn’t mean they can’t be lobbied.  A lesson worth remembering.

Marines Don’t Know Who the SS Were?

by Kevin Jon Heller

By now, most readers have probably seen the following photo, in which Marine snipers in Afghanistan pose in front of a flag with the runes of the SS:

I wasn’t planning on blogging about the photo, because the insensitivity of the snipers and the awfulness of the symbolism speak for themselves. But then I saw this ridiculous statement by a Marine spokesman (my emphasis):

“We don’t believe these Marine Corps snipers had a historical appreciation for what this symbol meant,” the official said. “As soon as leadership was made aware of it, they took action at the unit level and then passed that information throughout the sniper community and to those snipers serving in Afghanistan.”

Seriously? Do Marines literally get no training in military history before they are shoved into combat? Were there no officers in the unit who went to Annapolis? World War II was kind of a big one for the U.S., and I seem to recall the SS playing a part in it. Are we really supposed to believe that none of the snipers has ever seen a World War II movie?

As an aside, our old friend David Bernstein has been all aflutter lately about a tiny number of bloggers using the term “Israel-Firsters” to describe American Jews who put Israel’s interests ahead of the United States’, because the term has an anti-Semitic history.  So far, no word whether he has a problem with the Marines invoking the genocidal legacy of the SS…

Garzon Suspended for Wiretapping Lawyer-Client Conversations

by Julian Ku

Should human rights folks still defend him?

Spain’s Supreme Court on Thursday convicted the crusading human rights judge Baltasar Garzón of illegally ordering wiretapping in a corruption case and suspended him from the courts for 11 years.

I don’t know much about the background of this case. It appears to be a very serious conviction, unrelated to his more celebrated investigation of Franco-era crimes.

The 7-0 ruling came in a 2008 corruption case in which Mr. Garzón ordered wiretaps to monitor conversations between lawyers and their clients. The judge argued that such taps were needed to ensure that the main defendants would not be able to transfer money garnered from their corrupt business dealings while held in jail under investigation. In a case brought by the defendants who had been monitored, the Supreme Court ruled that such an order not only contravened defense rights but also “damaged the right to confidentiality.”

Emphasis added. Of course, the main criticism here is not that Garzon was necessarily right to order this type of wiretap, but that he should punished for what is essentially a legal mistake via a criminal conviction and a judicial suspension. I don’t know enough about Spanish law to know if this is an unusual remedy for an illegal wiretap (it certainly would be in the U.S.).

UVA Conference on Conflicting Legal Norms in US and Foreign Courts

by Kenneth Anderson

If you happen to be around Charlottesville tomorrow, Friday, February 10, you might want to come over to a symposium on how to resolve conflicting legal norms in US and foreign courts:

The conference – organized by the student-run Virginia Journal of International Law and the John Bassett Moore Society of International Law – will explore how to resolve conflicting legal norms found in the United States and abroad, particularly as domestic laws extend their reach beyond countries’ borders. ”Although domestic and foreign legal norms have always interacted, the particular issues that will be addressed during our 2012 symposium have yet to be given significant attention in legal scholarship,” said third-year law student Zach Torres-Fowler, managing editor of the Virginia Journal of International Law.

The keynote speaker for the conference will be Legal Adviser Harold Koh, speaking at 9 am Friday; and the day’s panels feature many leading professors, including our own Roger Alford.  I’ll be there moderating a panel.  If the sponsors post up podcasts or video, I’ll come back and link to it later, but I believe papers from the conference will be published by the Virginia Journal of International Law.  My congratulations to the students organizing the conference – I believe they’ve selected a great topic that runs across many fields these days but rarely gets discussed as such – and now I’d better get on the road to C’ville.

Targeting and the Concept of “Intent”

by Jens David Ohlin

Cross-posted at LieberCode.

I read with interest the debate between Kevin Heller and Bob Chesney on allegations that recent drone attacks have caused civilian casualties under disturbing circumstances.

My views are too extensive for the comments section, so I am taking the liberty of outlining them here — guest-blogger’s prerogative.  Essentially, I think the issue boils down to intent — which the discussion in the comments section eventually worked its way around to – which is far more complex and thorny than some commentators realize.  Suppose that the object of the attack is a combatant (or DPHer or CCFer), but that the attacker realizes that civilians might be killed as well.

It’s black-letter ICL that it is a war crime to intentionally direct an attack against civilians.  Incidental killing of civilians is permissible if the civilian casualties are not “excessive in relation to the concrete and direct military advantage anticipated” in the words of the Additional Protocol, or “clearly excessive” in the language of the Rome Statute – i.e. a proportionality analysis.

The problem is the deep ambiguity over what is meant here by the concept of intent.  The tension is compounded by the fact that the ambiguity stretches along two axes: across legal cultures and across bodies of law.  Let me explain.

First, not every jurisdiction understands intent in the same way in its criminal law.  The word is notoriously vague and can capture situations where the defendant desires a particular outcome as well as situations where the defendant is aware of the practical certainty of the outcome but is indifferent to the result.  This is precisely why, for instance, the Model Penal Code abandoned the ambiguous language of intent in favor of the more precise categories of purpose and knowledge to capture these differences.  (Dolus directus and dolus indirectus cover the same conceptual territory).  So far, this is all U.S. Criminal Law 101.

On top of this ambiguity, there is the further issue of whether dolus eventualis qualifies as a form of intent.  To a criminal lawyer trained in a civil law jurisdiction that uses dolus eventualis, it is fairly uncontroversial to consider dolus eventualis as a subcategory of intent.  It is, after all, a form of dolus.  But to a U.S. criminal lawyer, the idea that dolus eventualis is a form of “intent” is rather nonsensical.  There are two positions on what dolus eventualis means.  Either it accords with the common law concept of recklessness, or it is a distinct mental state that resides above recklessness (but below knowledge or dolus indirectus).  If it is the former, it can’t be a form of intent, because acting recklessly is not the same thing as acting intentionally.  If it is the latter, then it is an utter mystery because there’s no analogous U.S. criminal law concept that matches its exact contours.

It’s therefore no surprise that there’s substantial disagreement in both the case law and the scholarly literature over whether dolus eventualis is covered by Article 30 of the Rome Statute and its default rule on mens rea.

Now here’s the added complication.  In addition to asking and answering these questions, a satisfactory theory of “intentionally attacking civilians” must also contend with the origins of this norm in International Humanitarian Law, in particular the Additional Protocol and the relevant customary norms.  International criminal law borrows the norm from IHL and then adds an additional aspect: individual criminal responsibility for violations of the norm.  But the norm itself comes from IHL.

So the relevant question is how the concept of intent, or the idea of “directing an attack” against civilians, is understood by IHL lawyers, and in particular how the concept was understood by the negotiators of the Additional Protocol and any other relevant treaty or convention.  More specifically, were there differences between common law and civil law trained lawyers involved in these negotiations?  This is a complicated question, especially since the preceding analysis, if it teaches us anything, teaches us that one cannot assume that each reference to the term “intent” – or any similar term – means the same thing.  Different people mean different things when they talk the language of intent.

Ironically, comparative analysis because more difficult, not less difficult, when the participants are using the same terms.  When they are using different terms, one can safely assume that they are referring to different concepts.  But when they are using the same terms, one is often lulled into assuming that they are referring to the same concepts.  Not so.

One might object that the reference to IHL is misplaced and irrelevant, because whatever the contours of the IHL norm, the Rome Statute drafters changed the norm when they crafted the relevant provisions of the Rome Statute.  I think this is an unsatisfactory response.  First, IHL remains an applicable body of law, and whatever the Rome Statute did, I do not think it changed IHL per se – it simply criminalized it.  Second, it is fine if the contours of the ICL norm and the IHL norm diverge, but the usual pattern is for the ICL crime to be narrower, on the assumption that the prosecutor should meet additional requirements before  punishment is warranted.  In other words, its fine if ICL exculpates individuals whose conduct violates the norm as it exists in another body of law.  But the opposite result would be curious.  If ICL inculpates individuals who did not violate the norm as it exists in IHL, this would be an odd and uncomfortable result indeed.

I’ve tried to scrupulously avoid taking a stand on the final issue here.  Rather, my point is to set the guideposts that a successful analysis should cover.  It’s a daunting task in my view.

Global Convergence in Settlements (the Class Action Kind!)

by Peggy McGuinness

My brilliant St. John’s colleague Adam Zimmerman recently posted his thoughts on global trends in the area of mass settlements at Prawfsblawg.  He argues that American-style “bottom up” approaches to class actions has been converging with the “top down” approach prevalent in Europe and other jurisdictions.  Questions about how to compensate large groups of claimants (e.g., victims of the BP oil spill, or the global mortgage crisis) tend to blur distinctions between private and public law and raise complex questions of the role of courts in managing settlements:

The new model, today, involves many different players–class action lawyers, agencies, prosecutors, non-profits and other institutions–all vying to prosecute the same defendant, for the same conduct, and with power to compensate victims on a massive scale.  As I’ve noted for the past few weeks while blogging here at Prawfs, the United States increasingly relies on states attorneys general, federal prosecutors, agencies, and legislative compensation funds to compensate victims on a massive scale in ways that compete with class actions.  Institutional players, like large mutual funds and state retirement systems, relying on changes to United States securities laws in the 1990s, have also taken a larger leadership role in class action lawsuits.  In many cases, the end result is a large fund managed by the same private administrators who commonly oversee class action settlements.

And so it is outside the United States.  As the United Kingdom amends its class action procedures, it also has clarified and expanded the power of its Financial Service Authority (FSA) to seek consumer redress under the 2010 Financial Services Act.  As Sweden, Norway, and Denmark adopted class action procedures over the last decade, they also expanded the authority of state agencies, consumer associations and other non-governmental organizations to bring “representative actions” on behalf of victims. See, e.g., Swedish Group Proceedings Act § 5; Norwegian Dispute Act, Ch. 35, § 35-3(1)(b);  Robert Gaudet, Earth to Brussels: Lessons Learned from Swedish, Danish, Dutch and Norwegian Class Actions, White Paper (July 14, 2008).  Public authorities and NGOs continue to play an active role in large collective actions in common law systems, like Canada and Australia, and civil law systems, like Argentina.

The convergence of “top down” and “bottom up” approaches to settling large-scale problems — from the United States mortgage crisis, to British Petroleum, to the September 11 Litigation — raises a host of new questions for the future: Is it fair for prosecutors or agencies, whose primary aim has generally been associated with criminal punishment or regulation, to coordinate or compete with private attorneys who seek to compensate victims?  In those countries with federal systems, how should the federal government coordinate with states or provincial authorities?

But, in my view, convergence presents the greatest challenge for judges charged with overseeing different players, with different state, institutional or personal interests in a final resolution.  How should a judge coordinate or consolidate such cases, if at all?  What level of judicial review does a court apply to settlement brokered by other players in government, if any?  And, finally, in a world where courts must reconcile competing interests of victims, states, agencies and federal authorities, with different civil, regulatory and criminal enforcement obligations, what level of deference does the court owe to each decisionmaker in that settlement?

For those of us who track other areas of “convergence” in the law — e.g., human rights adjudications in domestic and international courts — it is useful to think about the ways in which adjudication of mass claims in the U.S. has influenced and is influenced by global trends.  And, of course, highlights the need in all cases for judges and other institutional players in settlements to think about convergence in substantive outcomes across national borders.  What to do, for example, when the other players are foreign prosecutors or administrative agencies? Or international dispute resolution bodies or regional agencies? (The Costa Concordia case is illustrative, with the possibility of payouts to victims through an Italian criminal proceeding with a class-action tort action continuing apace in U.S. court.)   Read the whole thing over at Prawfsblawg.

A Blogging Hiatus and a Book

by Duncan Hollis

Although I’ve blogged with Opinio Juris for more than six years now, I would never describe myself as a frequent blogger; at my best, I’ll give you 2 posts a week, more often just one.  Of late, however, my blogging has been even more sporadic. Here’s the reason:

After more than two years of work, of which the last 3 months were particularly intense, I submitted a draft manuscript for The Oxford Guide to Treaties to OUP at the end of January. The Guide is designed to be a comprehensive and current overview of treaty law and practice for academics and practitioners alike. It combines 25 chapters on all the basic issues that arise in treaty-making, (including formation, application, interpretation and exit) with a survey of common treaty clauses, including 350 examples from existing treaties. The book is due in print this summer, but feel free to pre-order your copy now.  I’m sure I’ll blog about it more in the coming months (as well as a few treaty-related issues I picked up along the way).  For now, however, I’d love reader feedback on the proposed cover above.

And for those of you who want more details on the project itself, a table of contents follows the jump.

Looking for Twitter Follower No. 2000

by Peter Spiro

Just a note to point you to OJ’s Twitter feed, which you can find here.  We link to posts on the blog, but there’s also added content in the form of pointers to other items that might be of interest to OJ readers.

For those of you that haven’t taken up the habit, some serious material is floating around the Twitterverse at the same time that it’s easy to avoid the dreck.  If you’re looking for a starter package in international law, check out feeds from Anne-Marie Slaughter, Dan Drezner, and Foreign Policy’s Josh Keating, David Bosco, Colum Lynch and Blake Hounshell.  Most major NGOs, IOs and governmental entities now have multiple feeds (the Department of State has dozens).  One Twitter phenomenon: you get principals actually doing their own writing (people like Ken Roth and Swedish foreign minister Carl Bildt), so it feel less filtered than other media.  Fake twitter feeds supply some comedy – check out those for Kim Jong-un, Newt Gingrich, and Henry Kissinger (along with the real Andy Borowitz).  OJ’s Ken Anderson has a personal feed here, as does our current guest blogger, Jens Ohlin.  It’s a pretty good way to stay on top of things.

OJ is following almost 150 in all, which you can find here.  Thanks to the almost 2000 of you who are following us.

Chesney on Attacking Mourners and Rescuers with Drones (Updated)

by Kevin Jon Heller

As most readers likely know, the Bureau of Investigative Journalism recently released a 22,000 word report documenting the disturbing U.S. practice of using drones to target individuals attending funerals or attempting to provide aid to individuals wounded in previous drone strikes.  Here is the report’s central conclusion:

A three month investigation including eye witness reports has found evidence that at least 50 civilians were killed in follow-up strikes when they had gone to help victims. More than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. The tactics have been condemned by leading legal experts.

At Lawfare today, Bobby Chesney argues that such attacks would be legal as long as they targeted individuals who qualified as members of an organized armed group and did not cause disproportionate civilian casualties:

I certainly agree that medical/first-response activities undertaken to rescue persons who have been injured by a drone strike would not normally constitute direct participation in hostilities.  And one could add that attending a funeral is not direct participation in hostilities either.  But all of this only matters (assuming LOAC does apply) if we assume that a person must be directly participating in hostilities in order to be targeted lawfully in that context.  And that is in fact the subject of great debate.

One position is that in the NIAC setting there is no such thing as “combatant” status, that everyone accordingly has “civilian” status, and that the authority to target a civilian intentionally is limited to situations in which the civilian directly participates in hostilities.  On that view, drone strikes would routinely be problematic, quite apart from whether a strike occurred during a funeral or during a post-strike rescue operation.  This is not the only view of the matter, however.

A different position is advanced by the ICRC in its Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law.  This document argues (pp.31-36) that members of organized armed groups (OAG) who perform a continuous combat function (CCF) in a NIAC are not civilians and may be targeted in a manner comparable to that of a combatant, not just when engaging in specific acts of direct participation.  On that view, it would certainly be possible to lawfully target a member of an OAG who has a CCF, even if at that very moment the person happens to be attending a funeral or attempting to rescue someone from a collapsed building (though obviously the presence of medical personnel, family, or other non-fighters in such locations would raise difficult questions in the proportionality analysis).

Bobby’s argument, however, is significantly overbroad.  It is black-letter IHL that, in the words of Article 50(3) of Additional Protocol I, “[t]he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”  That rule is contained in the military manuals of nearly a dozen countries, including Argentina, Canada, Kenya, the Netherlands, Spain, and Sweden.  And it has been affirmed by multiple international tribunals, including the ICTY and the Special Court for Sierra Leone.  The ICTY Appeals Chamber, for example, held the following in Galić

ICJ Issues Jurisdictional Immunities Judgment

by Ingrid Wuerth

[Ingrid Wuerth is Professor of Law at Vanderbilt Law School and Director of Vanderbilt’s International Legal Studies Program.]

The International Court of Justice has issued its judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). Germany won, as most observers had predicted. The dispute arose out of a series of decisions by Italian national courts denying immunity to Germany for conduct that took place at the end of World War II. They include the well-known Ferrini case as well as cases brought in Italy to enforce judgments from Greek courts that similarly denied immunity to Germany for events related to the 1944 Distomo massacre. Italy argued for an exception to immunity on the grounds that some of the conduct took place on the territory of the forum state and because the conduct constituted serious violations international law including jus cogens norms. The Court rejected the first argument, concluding that State immunity protects acta jure imperii by organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State. The Court also rejected the second argument, relying on conventions (¶ 89) and domestic legislation, judgments of national courts (including Greek cases after the initial Distomo decision) (¶¶ 83-85, 96) and the ECHR (¶ 91), distinguishing Pinochet as relating to criminal cases against individuals (¶ 87), and noting Italy’s own statements in domestic litigation that this area of law is unsettled and undergoing change (¶ 86). Over at Lawfare, Professor Paul Stephan provides an excellent summary of the judgment, including Judge Trindade’s dissent, and a discussion of the possible impact of this judgment on U.S. human rights litigation.

Germany was widely expected to win this case because state practice generally supports the immunity of states (even for violations of international humanitarian law and jus cogens norms), as the judgment details. Rather than further describing the Court’s reasoning, I want to consider the effect of judgment on two other issues. First, to what extent does the Court leave the door open to progressive development of immunity law by national courts? One might accept the Court’s conclusions about the law today, but still hope to see national courts developing new exceptions to the state law of immunity, as they did in the commercial activity context. The Court’s reasoning has made that somewhat more difficult by rejecting a case-by-case balancing approach to immunity that might encourage courts to deny immunity based on the underlying conduct or the failure of the state to make adequate reparations. (¶¶ 106, 56, 82). This aspect of the Court’s reasoning was criticized in the separate opinion of Judge Bennouna and the dissenting opinion of Judge Yusuf. On the other hand, the costs that this Judgment will ultimately impose on Italy are unclear. The Court does require Italy to reverse the effects produced by the opinions of its national courts (¶ 137), but it also indicates its surprise and “regret” that Germany has denied compensation to the Italian victims bringing these claims (¶ 99). Further negotiations on both fronts seem likely. If the costs of denying state immunity do not appear very high, perhaps in the future national courts will again deny state immunity under different factual circumstances, especially where their own executive branches do not clearly support the immunity of the state that has been sued.

A second question is what effect this judgment will have on the much more controversial question of the functional immunity (ratione materiae) of individual government officials who are not entitled to status-based immunity (ratione personae). Some commentators argue that some individuals accused of international crimes are not entitled to immunity ratione materiae before foreign national courts, as in the Pinochet case. This issue was the subject of controversial dicta in the Arrest Warrant case; the Italy v. Germany Judgment is very explicit that it does not address this question (¶ 91). A few aspects of the Court’s reasoning might bear on the question of individual immunity ratione materiae, however. First, the Court is clear that immunity is not a matter of mere comity but instead is a principle of international law that reflects the sovereign equality of states (¶¶ 53-57). If individual immunity is a function of state immunity, this makes it more difficult to argue that such immunity is a matter of comity, not law. Second, the court characterizes immunity as “essentially procedural in nature” and as “entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful (¶ ¶ 58, 93). Some have argued that individual immunity is an aspect of substantive law, a conclusion that is arguably in tension with the Court’s reasoning here. Third, the Court relies very heavily on the judgments of national courts, (¶¶ 73-76, 85, 96) concluding in effect that Italian national courts were virtually alone in denying immunity to German for the reasons that they did (¶¶ 77, 96). This may bode well for claims that individuals are not entitled to functional immunity for international crimes, as the practice is at least somewhat more mixed. On the other hand, the Court notes in one context that national courts gave the state immunity question “careful consideration;” some national court decisions that are referred to show the erosion of immunity for individuals do not explicitly consider immunity at all. As well, the Judgment leaves open entirely the question of how much state practice/how many national court decision it would take to show that international law recognizes an exception to immunity.

Cambodia Tribunal Increases Duch Sentence to Life

by Jens David Ohlin

Cross-posted at LieberCode.

On Friday, the Supreme Court Chamber of the ECCC increased the sentence of Kaing Guek Eav (Duch) to life in prison.  The Trial Chamber had sentenced Duch to 35 years in prison for crimes against humanity and grave breaches of the Geneva Conventions, but then reduced the sentence by five years in recognition of Duch’s illegal detention by a Cambodian military court from 1999 to 2007.

The Supreme Court Chamber’s Appeals Decision reversed the Trial Chamber on both points, finding that the 35 year sentence was too lenient, and also that the five-year reduction in sentence was a mistake.  The Chamber found that 12,272 victims were killed at the S-21 prison under Duch’s leadership.

Although the full decision has not been published yet, a detailed summary (in English) is available from the ECCC website here.

Relying on just the summary, the first half of the argument strikes me as correct.  The Chamber noted that both deterrence and retribution required increasing the sentence above what the Trial Chamber had recommended:

The Supreme Court Chamber is of the view that retributive and deterrent purposes of punishment are particularly relevant to this case in light of the gravity of KAING Guek Eav’s crimes. The penalty must be sufficiently harsh to respond to the crimes committed and prevent the recurrence of similar crimes. The crimes committed by KAING Guek Eav were undoubtedly among the worst in recorded human history. They deserve the highest penalty available to provide a fair and adequate response to the outrage these crimes invoked in victims, their families and relatives, the Cambodian people, and all human beings.

More specifically, the Supreme Court Chamber concluded that Duch’s sentence should not be reduced simply because there were other leaders in the Khmer Rouge regime who out-ranked Duch:

39. As to aggravating factors, KAING Guek Eav held a central leadership role at S-21, which he abused by training, ordering, and supervising staff in the systematic torture and execution of prisoners deemed to be enemies of the DK, and showed “dedication to refining the operations of S-21.” The fact that he was not on the top of the command chain in the DK regime does not justify a lighter sentence. Indeed, there is no rule that dictates reserving the highest penalty for perpetrators at the top of the chain of command. KAING Guek Eav’s sentence must be proportionate to the crimes he committed, regardless of whether others may have committed more serious offenses.

I am particularly pleased to see this last point, as it is something that I have pushed in a series of articles on international criminal sentencing (available here and here).  In those articles I identified two different kinds of proportionality, offence-gravity proportionality and defendant-relative proportionality, which a court might seek to maximize when handing down a sentence.  The principle of offence-gravity proportionality demands that the punishment be proportional to the moral gravity of the offence, whereas defendant-relative proportionality demands that like defendants be treated in like manner and that more or less culpable defendants receive more or less punishment.

The problem in international criminal justice is that these two forms of proportionality come into conflict at the margins.  When dealing with extreme crimes like the present case (12,272 victims), it would seem as if only a life sentence would be proportional to the gravity of the offence.  However, there were others in the Khmer Rouge regime, higher in the chain of command, who might bear greater responsibility for these crimes.  If they receive a life sentence as well, then defendant-relative proportionality would appear to demand that Duch’s sentence be “scaled down” to something less than life in prison, in order to leave room at the top of the scale for the worst offenders.

I have argued in the past that this inclination is a mistake, because such reductions might violate offence-gravity proportionality, i.e. at a certain point the reduced sentences no longer reflect the inherent moral gravity of the offence.  The correct result, I argued, is to prioritize offence-gravity proportionality as normatively superior, even if that means sacrificing some degree of defendant-relative proportionality.

It appears that the ECCC agreed with this approach in Duch’s case.  Although his life sentence might fail to distinguish him from Khmer Rouge officials above him in the chain of command, this is the better result rather than formalistically giving him a reduction.

Given the age of the defendant, some of these disputes might not have a tangible result.  But the results of this theoretical inquiry matter, for two reasons.  First, future cases might involve younger defendants where the difference between 20 years and life in prison is the difference between getting out of prison with some life left and never getting out of prison.  Second, even in cases where the defendant is too old to substantially benefit from a sentence reduction, the principle still matters because punishment for international crimes has an irreducibly symbolic value that extends beyond the particularities of one defendant’s incarceration.

As a final point, the Supreme Court Chamber also eliminated the sentence reduction for Duch’s illegal pre-trial detention, which is logically inconsistent with a life sentence anyway because it requires a fixed-term sentence against which the reduction would be applied.  The Chamber concluded that Duch’s illegal detention was not attributable to the ECCC (but rather the domestic authorities) and that there was no abuse of process that required a remedy from the ECCC.

Jens Ohlin Guest-Blogging

by Kevin Jon Heller

I am delighted to announce that Jens Ohlin, Associate Professor of Law at Cornell — and one of my very favorite international criminal law scholars — will be guest-blogging with us for the next two weeks.  Here is his bio:

Professor Ohlin specializes in international law and all aspects of criminal law, including domestic, comparative, and international criminal law. His latest work concentrates on the legal implications of remotely piloted drone strikes, and he is a co-editor of a collected volume entitled Targeted Killings: Law and Morality in an Asymmetrical World, forthcoming from Oxford University Press in 2012.

He also is the author, with George Fletcher, of Defending Humanity: When Force is Justified and Why (Oxford University Press, 2008), which offers a new account of international self-defense through a comparative analysis of the rules of self-defense in criminal law. His scholarly work has appeared in the Columbia Law Review, the Harvard International Law Journal, the American Journal of International Law, the Journal of Criminal Law & Criminology, the Journal of International Criminal Justice, the Cornell Law Review, the Chicago Journal of International Law, as well as several edited volumes published by Oxford University Press.

Professor Ohlin’s current research also focuses on the normative application of criminal law concepts in international criminal law, especially with regard to genocide, torture, joint criminal enterprise and co-perpetration, as well as the philosophical foundations of collective criminal action. His work has been cited by judges and litigants at several international tribunals, including the ICTY, the ICC, and the ECCC. He is also a member of an international working group, centered in The Hague, that is developing a codification of general rules and principles of international criminal procedure.

Jens also runs his own blog, the excellent LieberCode.

Welcome, Jens!

Paul Stephan Discusses ICJ Decision in Jurisdictional Immunities of the State

by Kenneth Anderson

Over at Lawfare, UVA professor Paul Stephan talks about the ICJ decision in Jurisdictional Immunities of the State (Germany v. Italy).  He describes the decision, and adds some comment on its implications of the decision for the concept of international civil jurisdiction and Alien Tort Statute litigation in the United States.

On Friday, the International Court of Justice (ICJ) handed a victory to traditional conceptions of international law and a setback to an effort to privilege international human rights over other aspects of the international legal system. Its decision in Jurisdictional Immunities of the State rejected Italy’s attempt to create an exception to sovereign immunity in civil cases based on claims of grave human rights abuses. The decision not only rebukes Italian and Greek courts, which earlier in this decade had opened themselves to claims based on Germany’s World War II atrocities, but also may cast a shadow over some aspects of human rights litigation in the United States. One can find in the decision, and particularly in the concurring opinion of Judge Keith (New Zealand), support for the argument that the exercise of universal civil jurisdiction, which most U.S. human rights litigation does, violates international law.

Note: for reasons I can’t seem to fix, this post seems to be permitting spam, so I’m going to close it to comments.

Emerging Issues in International Humanitarian Law at Santa Clara

by Kenneth Anderson

The cool place for international law this weekend will be Santa Clara Law School, out in Silicon Valley, whose Santa Clara Journal of International Law is hosting a conference on “Emerging Issues in International Humanitarian Law.” The eminent IHL scholar Louise Doswald-Beck will be the keynote speaker, and the panels hit on key issues looking into the future – my Washington College of Law colleague Richard Wilson on the collision of IHL and IHRL; Mark Drumbl on child soldiers; Dina Francesca Haynes on women in the post conflict process; a panel on emerging autonomous weapons, and much more.  The full schedule is here; this looks to be a great conference, and thanks and congratulations to Santa Clara law school for putting it on. (Update: And congratulations and thanks to Santa Clara for a wonderful conference!)

Drumbl — Reimagining Child Soldiers

by Kevin Jon Heller

I am delighted to announce that Oxford University Press has just published my dear friend Mark Drumbl’s new book, “Reimagining Child Soldiers in International Law and Policy.”  Here is the description:

The international community’s efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures therefore remain inadequate. Former child soldiers experience challenges readjusting to civilian life. Reintegration is complex and eventful. The homecoming is only the beginning. Reconciliation within communities afflicted by violence committed by and against child soldiers is incomplete. Shortfalls linger on the restorative front.

Still, conversations about child soldiers mostly involve the same story, told over and over, and repeat the same assumptions, over and over. Current humanitarian discourse sees child soldiers as passive victims, tools of war, vulnerable, psychologically devastated, and not responsible for their violent acts. This perception has come to suffuse international law and policy. Although reflecting much of the lives of child soldiers, this portrayal also omits critical aspects. This book pursues an alternate path by reimagining the child soldier. It approaches child soldiers with a more nuanced and less judgmental mind.

It offers a way to think about child soldiers that would invigorate international law, policy, and best practices. Where does this reimagination lead? Not toward retributive criminal trials, but instead toward restorative forms of justice. Toward forgiveness instead of excuse, thereby facilitating reintegration and promoting social repair within afflicted communities. Toward a better understanding of child soldiering, without which the practice cannot be ended. This book also offers fresh thinking on related issues, ranging from juvenile justice, to humanitarian interventions, to the universality of human rights, to the role of law in responding to mass atrocity.

The book is available both in hardback and paperback.  I had the pleasure of reading a couple of chapters while Mark was writing the book, and they were superb.  I predict the book — which will no doubt be controversial — will have a profound impact on the way courts, scholars, and activists think about child soldiers.

Read Drumbl!

Julian Arato on the Eurozone Crisis and the German Federal Constitutional Court, Part 2

by Kenneth Anderson

(This is the second part of a guest post by Julian Arato, LLM candidate at NYU Law School; our thanks to him.  The first part can be found here.)

In my last comment, I said that the 2009 decision in Lisbon looms like a specter over the Eurozone crisis.  Let me explain a bit more why and how.

The key point is that in Lisbon the Court construes the entrenchment of Germany’s “democratic identity” in Article 79(3) as establishing two different types of limitations to German integration with Europe under the Basic Law: one relative and surmountable, the other absolute.  Everyone recognizes that Lisbon affirms limits of the first type, meant to protect democratic forms of government.  Less well appreciated is the Court’s assertion that the Basic Law includes limits of the second type, absolutely prohibiting any delegation that would irreversibly vitiate the sovereignty of the German state (meaning, more concretely, the ultimate ability of the German authorities to determine and interpret the nature and extent of German integration into Europe).

The first type of limit seeks to protect democratic participation in governance.  It takes the Solange model: integration cannot proceed if it would transfer significant power from German democratic authorities to European authorities that are insufficiently democratically accountable.  Solange-type limits are not absolute but relative: the FCC is willing to permit the transfer of powers from democratic national authorities to supranational authorities so long as the latter are sufficiently democratic, and offer suitable avenues for participation by the German people.  A potential delegation of power to Europe may breach this relative limitation of democracy today, in light of the oft-noted democratic deficit in the European institutions as we know them; but with adequate institutional reform, the Basic Law could permit the very same delegation of power tomorrow.

The critical move in Lisbon is the Court’s assertion of a deeper, absolute limit to integration.  The Court asserts that the German Federal Parliament must always retain “functions and powers of substantial import” as a matter of constitutional principle—irrespective of the level of democracy at the European level.  Under no circumstances can integration proceed if it involves a transfer of competences to Europe that would strip Parliament of sufficiently “substantial” power, nor if it entails the transfer of overly open-ended powers with the potential to similarly deprive Parliament in the future.  This absolute limit is meant to protect the political existence of the German people as such, within the sovereign German State.  The decision makes clear for the first time that the ultimate sovereignty of the German State can never be completely subsumed into a European federal State—to do so would breach the principle of democracy, protected from even constitutional amendment under Article 79(3).  And indeed, for all its language echoing Maastricht on reviewing for democracy, the Court admits in an aside that its review of European legislation according to the principle of democracy-qua-participatory/voting-rights is only a secondary constraint—a conditional limitation which sets “limits to the transfer of sovereign powers…which do not already result from the inalienability of the constituent power and of state sovereignty.” (Lisbon, ¶247 (my emphasis)).

To be clear: in the view of the FCC, as a matter of principle German authorities may not commit Germany to a federal state of Europe through normal constitutional amendment; as corollaries integration may not entail the delegation to European institutions of too many spheres of competence, overly broad and open-ended competences of any kind, and especially not the competence to decide upon the extent of their own competences (Kompetenz-Kompetenz).  (Lisbon, ¶233).  Continue Reading…

African Union may ask ICJ for opinion on Bashir’s immunity from ICC

by Julian Ku

Be careful what you wish for:

The leaders at the African Union (AU) summit in Addis Ababa asked the chairperson of the pan-African body to consider moving the case of Sudanese president Omer Hassan al-Bashir before the International Court of Justice (ICJ) for an opinion

Today the Xinhua news agency reported that the AU leaders affirmed that the ICC has no legal powers to remove the immunity that international law grants to state officials who are not parties to the Rome Statute.

They asked the AU Commission to consider seeking advice from the ICJ regarding the immunity of state officials under international law.

Dapo Akande has been all over this issue. He thinks that Bashir does not have immunity, but he does not think this is an easy or clear case and depends on the Security Council’s powers more than on general customary international law.  I have a hard time imagining  the ICJ rulling in favor of the AU here, but it would not be a simple or slam-dunk opinion against immunity either.

Significant Problems with the Gotovina Expert Report (Updated)

by Kevin Jon Heller

It’s rare that I defend the ICTY, but I feel compelled to do so here.  As discussed in this blog post by Laurie Blank, a group of experts in military law have released a report attacking the Trial Chamber’s judgment in Prosecutor v. Gotovina for allegedly misapplying basic IHL rules regarding targeting.  Unfortunately, the report fundamentally misstates what the Trial Chamber actually held.  Here is how the Report summarizes the judgment (pp. 3-4; emphasis mine):

On April 15, 2011, the Trial Chamber issued its judgment, sentencing General Gotovina to 24 years for war crimes and crimes against humanity on a joint criminal enterprise theory of liability. The Trial Chamber’s opinion rests entirely on the finding that Gotovina ordered a direct attack on civilians in Knin during Operation Storm. The Trial Chamber judgment rests the finding of unlawful direct attack on civilians on the artillery attack on Knin. In analyzing the operation, the Trial Chamber found that all of the pre-planned targets of the artillery barrage were lawful military objectives. The judgment also recognizes that the Croatian targeting operations were planned with the fundamental law of war principles of distinction and proportionality as guides for the determination of lawful targets. After setting forth, without explanation, a 200-meter radius of error as the means for determining which effects were attributable to lawful objects of attack, the Trial Chamber found that just under 5% of the artillery shells landed beyond that radius of error. It then inferred the intent to unlawfully attack civilians from this 5% of shells landing outside the radius of error, without further explanation or analysis.

The finding of direct attack on civilians in turn serves as the predicate widespread and systematic attack on civilians for the crime against humanity charge and as the central element for the persecution and other inhumane acts charges, as well as the wanton destruction as war crime charge. Lastly, the finding of attack on civilians is one of two contributions the Trial Chamber identifies to the joint criminal enterprise, the other being the failure to prevent and punish foreseeable crimes committed in conjunction with the joint criminal enterprise.

The first thing to notice is that the summary of the judgment does not cite the judgment itself.  In fact, there is not a single citation to specific paragraphs of the judgment anywhere in the Report — even when it claims that the Trial Chamber made a mistake.  That would be unacceptable scholarly practice even if the judgment was 50 pages long.  But it’s not.  In fact, the judgment is 1372 pages long and contains 2685 paragraphs.  As a result, it is next to impossible to determine whether the Report is accurately characterizing the judgment.

Next to impossible — but not impossible.  In fact, the claim that I’ve bolded above — that “[t]he Trial Chamber’s opinion rests entirely on the finding that Gotovina ordered a direct attack on civilians in Knin during Operation Storm” — is simply incorrect…

Wikileaks May Be Heading Out to Sea

by Julian Ku

I don’t know how credible this report is:

WikiLeaks may soon take a page from 1960s-era British pirate radio broadcasters and move operations offshore. Financial backers of embattled WikiLeaks founder Julian Assange are reportedly in the market for a boat that would maintain the watchdog site’s servers in international waters to avoid U.S. legal authorities, according to FoxNews.com.

I also don’t know how useful moving offshore would be for Wikileaks. While it would escape certain laws by operating in international waters (like Swedish laws against rape?), it would not escape many of the laws it has been worried about (like US espionage laws which are not limited to pure territorial jurisdiction).  Moreover, operating in international waters makes it easier, not harder, for another nation to detain Wikileaks people and property, since no territorial sovereignty is being violated by such a detention.  Obviously, the ship would be flagged in some country, but as a practical matter, it simply wouldn’t be much of a barrier to attempts to seize it.  I don’t think my analysis would change very much even if it was operated in one of the “Principality of Sealand,” which is not a recognized state (and has no chance of becoming a recognized state).  So, a dumb move all around for Wikileaks.